[1993] 1 F.C. 280
ITA-6861-91
In the Matter of the Income Tax Act, Canada Pension Plan, Unemployment Insurance Act, 1971
And in the Matter of an Assessment or Assessments by the Minister of National Revenue under one or more of the Income Tax Act, Canada Pension Plan, Unemployment Insurance Act, Against
Murray Michael Bruce Boyce (sometimes known as Murray Bruce David Michael Boyce)
Indexed as: Boyce (Re) (T.D.)
Trial Division, Rothstein J.—Winnipeg, November 3; Ottawa, November 24, 1992.
Practice — Judgments and orders — Enforcement — Motion for order directing Bank to deliver up to sheriff contents of safety deposit box — Certificate, registered in Federal Court certifying indebtedness to Crown, deemed judgment — Writs of fieri facias issued and served on Bank “ Bank refusing access to safety deposit box unless “drilling order” obtained as was usual practice at Winnipeg — “Drilling order” not required in addition to writ of fieri facias — Nothing new to be addressed by Court when sheriff instructed to obtain contents of safety deposit box — Sheriff not trespassing if box empty — Writs of fieri facias sufficient to authorize sheriff to gain entry to safety deposit box — Bank, as third party, justifed in insisting upon indemnification for cost of drilling and restoring box to usable condition.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Pension Plan, R.S.C., 1985, c. C-8.
Income Tax Act, S.C. 1970-71-72, c. 63.
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Eccles v. Bourque et al., [1975] 2 S.C.R. 739; (1974), 50 D.L.R. (3d) 753; [1975] 1 W.W.R. 609; 19 C.C.C. (2d) 129; 27 C.R.N.S. 325; 3 N.R. 259.
APPLICATION for an order directing a Bank to deliver up to the sheriff the contents of judgment debtor’s safety deposit box. Application allowed.
COUNSEL:
Gerald L. Chartier for Minister of National Revenue.
David R. M. Jackson for Canadian Imperial Bank of Commerce.
SOLICITORS:
Deputy Attorney General of Canada for Minister of National Revenue.
Pitblado & Hoskin, Winnipeg, for Canadian Imperial Bank of Commerce.
The following are the reasons for order rendered in English by
Rothstein J.: This is a motion by the Attorney General of Canada on behalf of the Minister of National Revenue for an order directing the Canadian Imperial Bank of Commerce to deliver up to the sheriff of the Winnipeg Judicial District the contents of the safety deposit box. These reasons apply to both this action and to the action in respect of Sharon Asselin in Court file ITA-1256-92.
On September 30, 1991, a certificate was registered in the Federal Court certifying as payable by Murray Michael Bruce Boyce to Her Majesty the Queen the sum of $174,842.27 plus interest. On February 13, 1992, a similar certificate was registered in the Federal Court in respect of Sharon Asselin certifying that she was indebted to Her Majesty for the sum of $17,077.36 plus interest. These certificates are deemed to be judgments of the Federal Court. The indebtedness appears to arise under the Income Tax Act [S.C. 1970-71-72, c. 63], Canada Pension Plan [R.S.C., 1985, c. C-8] and the Unemployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48].
On February 13, 1992 writs of fieri facias were issued by the Federal Court with respect to Boyce and Asselin. The writs were served on the Manager, Canadian Imperial Bank of Commerce, 1075 Autumnwood Drive branch, Winnipeg, on February 14, 1992.
When the sheriff attended at the branch on February 24, 1992 to access the contents of the safety deposit box under contract to Boyce and Asselin, the sheriff was advised by the bank manager that she would not allow access to the safety deposit box by the sheriff unless a “drilling order” was obtained.
Counsel for the bank asserted that in the case of access to a safety deposit box a writ of fieri facias is insufficient. A specific “drilling order” is necessary. No authority was cited in support of this proposition, although counsel produced certain correspondence with the sheriff which indicated that the practice, at least in Winnipeg, is for the sheriff to obtain a “drilling order” when a bank refuses access to a safety deposit box.
Counsel for the bank further argued that based upon the authority in Eccles v. Bourque et al., [1975] 2 S.C.R. 739 that if the safety deposit box is empty, the sheriff will be guilty of trespass. Counsel asserted that the law in this area derives from a balancing of rights between debtors and creditors and that the balance requires a specific “drilling order” in the case of a safety deposit box.
Counsel for the Attorney General makes the following argument which I take from the written statement of fact and law submitted:
6. The eminent jurist, G.V. La Forest, now with the Supreme Court of Canada, published, as a member of the Faculty of Law at the University of New Brunswick, the following with respect to the Writ of Fieri Facias:
The writ of fieri facias (or fi fa) is the maid of all work in the law of execution. So much is this so that in ordinary parlance when we speak of issuing execution we mean the fieri facias. It commands the sheriff to cause to be made (fieri facias) out of the lands and chattels of the judgment debtor an amount sufficient to pay the judgment creditor with costs. The writ has been the most usual mode of execution for a long time, it is of great antiquity, dating to the earliest days of the common law.
Some Aspects of the Writ of Fieri Facias, G.V. La Forest, 1959, U.N.B. Law Journal, p. 38.
7. In Halsbury’s Laws of England, 4th Edition, Volume 17, at paragraph 468, the text reads as follows:
The writ is said to “bind” the property in the goods of the judgment debtor in the bailiwick. When it is said that the goods, or the property in them, are “bound”, what is meant is that the sheriff acquires a legal right to seize the goods.
8. It is the submission of Her Majesty the Queen that it is the Sheriff’s duty under a Writ of Fieri Facias to ascertain where the judgment debtor’s goods are and to seize them. For this purpose, the Sheriff can legally enter the dwelling house and premises of the judgment debtor, or of any stranger to whose premises the debtor’s property has been removed, but the law dealing with the Sheriff’s right of entry under civil process is subject to the overriding rule that he must not gain entry by force against the will of the judgment debtor or such stranger.
Halsbury’s, supra, at para. 465.
9. In regard to the last phrase of the previous paragraph, the Halsbury’s text goes on to state the following:
The privilege is confined to dwelling houses. The outer door premises occupied by the debtor, but not being his dwelling house, nor within the curtilage of his dwelling house, may lawfully be broken open.
Halsbury’s, supra, para. 466.
10. Once an entry has been made, the doors of particular rooms, cupboards or trunks may be broken open, in order to complete the execution. It is not necessary to demand that inner doors, cupboards or trunks be opened but for the breaking.
Halsbury’s, supra, para. 467.
11. The Canadian Imperial Bank of Commerce is not objecting to the drilling of the safety deposit box because it is not leased to the judgment debtors. It is clear from the Affidavit of Francine Hollingworth, sworn November 2, 1992, that she is, in fact, satisfied that the safety deposit box is leased to the judgment debtors.
Affidavit of Francine Hollingworth, para. 3.
12. There does not appear on the face of the Affidavit material, nor, indeed, does it appear to be the contention of the Canadian Imperial Bank of Commerce that the bank premises located at 1075 Autumnwood Drive, Winnipeg, Manitoba, is a dwelling. As indicated in the text from Halsbury’s, the privilege only extends to dwelling houses.
Hodder v. Williams, [1895] 2 Q.B. 663 (C.A.).
13. Although there appears to be no case exactly on point, the learned authors of Debtor-Creditor Law: Practice and Doctrine, Springman and Gertner, 1985, Butterworth & Co. (Canada) Ltd., state the following at page 152 of the text:
Property owned by the debtor but secreted in the hands of third parties is seizable by the sheriff. Even the dwelling house of such a stranger could be broken into by the sheriff if the debtor had hidden himself or his goods there and commercial premises have no such protection at common law. The legality of the entry is determined by an actual finding of the debtor’s property. Applying these principles, there is no reason in law to prevent the sheriff from breaking a safety deposit box. Practically, however, depositing a certificate in a safety deposit box guarantees virtual immunity, because even if the sheriff happens to learn of the box and its contents, the costs of executing must be balanced against possible returns from seizure and sale. Even the most co-operative bank has no choice but to drill the box if the debtor does not disgorge the key, and debtors are not known for their co-operation. The best the bank can do is seal the box.
14. This excerpt from the Springman and Gertner text is apposite here, as well. If the Canadian Imperial Bank of Commerce’s position is accepted, then the execution creditor must, in addition to paying the costs of the drilling of the safety deposit box, pay for a solicitor to make an application to the Court to obtain a further Order. Neither the present state of the law, nor public policy, should dictate such a result.
While I cannot fault counsel for the bank for wishing to proceed cautiously in view of the fact that this precise issue has not been specifically decided (at least neither counsel were unable to refer me to any authorities directly on point) I am unable to accede to his position.
There does not seem to be any special reason why in addition to a writ of fieri facias a judgment creditor must also obtain a “drilling order”. There is nothing new that must be addressed by a Court when the sheriff is instructed to obtain the contents of a safety deposit box. Counsel mentioned that to obtain a “drilling order” it would be necessary to establish that a judgment had been obtained, and that the specific location of the safety deposit box be ascertained. However, the writ of fieri facias could not be obtained without a preceding judgment. Nor has any cogent reason been advanced for requiring the Court to have specific evidence of the location of a safety deposit box before it could be accessed. Under the circumstances, I see no purpose nor necessity for obtaining a further “drilling order” in addition to a writ of fieri facias.
Nor am I of the view that the sheriff would be trespassing if the safety deposit box was empty. There is no dispute in this case that the judgment debtors did have a safety deposit box at the branch of the bank in question. The judgment debtors have the right to the use of the safety deposit box. That right is itself an asset which is present at the branch in question. In my opinion, this is not a circumstance analogous to that referred to by Dickson J. (as he then was) in Eccles v. Bourque et al. (supra).
I am therefore of the opinion that the writs of fieri facias were sufficient to authorize the sheriff to gain entry to the safety deposit box in this case. Having said this, it must recognize that the bank is a third party as between the judgment creditor and the judgment debtors. It should be kept “whole” by the judgment creditor where it co-operates to allow the sheriff to execute the writ of fieri facias. In these circumstances, a bank would be justified in insisting that it be indemnified for the reasonable cost of drilling the safety deposit box and restoring it to usable condition thereafter. Since drilling must be a fairly common practice, e.g., where customers lose their keys, the cost involved should be readily ascertainable.
Counsel for the Attorney General argued that the bank would incur the cost of drilling and restoration in any event because the judgment debtors were not co-operating and eventually the bank would have to drill the box to secure its return to its own use. On the material before me, I have no basis for making these assumptions, and I am of the view that the bank should not be “out-of-pocket” when it co-operates to allow access by a sheriff to the safety deposit box.
The application of the Attorney General is granted.
Considerable argument took place with respect to the matter of costs. While the Attorney General was successful in this case, and there was little to support the bank’s position, the bank is an innocent third party. In the absence of precedents and the apparent practice of obtaining “drilling orders” in Winnipeg in some circumstances, it was not unreasonable, in my opinion, for the bank to be uncertain of its position in this case. Accordingly, I will make no order as to costs.