T-2835-81
The Queen (Judgment Creditor)
v.
Athenian Construction Limited (Judgment
Debtor)
and
Lanzino Holdings Ltd. and Peach Blossom Build
ers Limited (Garnishees)
Trial Division, Cattanach J.—Ottawa, October 28
and 29, 1981.
Practice — Application for an order that certain debts
alleged to be owing or accruing from the garnishees to the
judgment debtor shall be attached — Rule 2300 provides that
such an application may be made ex parte — Counsel for the
Queen invoked Rule 324 and made written representations in
support of the draft order, the body of which is a reproduction
of Form 64 — No evidence that the service required by Rule
324 was complied with — Style of cause in notice of motion
and supporting affidavit refers to parties as plaintiff and
defendant — Whether Rule 324 should be complied with
Whether style of cause is corrupted — Application dismissed
— Federal Court Rules 324, 2300 — Income Tax Act, S.C.
1970-71-72, c. 63, s. 223.
R. v. Star Treck Holdings Ltd. [1978] 1 F.C. 61, followed.
APPLICATION ex parte in writing pursuant to
Rule 324.
COUNSEL:
J. Paul Molette, Toronto, for judgment
creditor.
SOLICITORS:
Deputy Attorney General of Canada for judg
ment creditor.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is an, application for', an
order that certain debts alleged to be owing or
accruing from the garnishees to the judgment
debtor shall be attached.
Pursuant to Rule 2300 such an application may
be made ex parte. The present application could
be properly so made.
However counsel for the applicant, Her Majesty
the Queen, (incorrectly named in what obviously
purports to be a style of cause to the notice of
motion and in a like style to the affidavit in
support of the motion as being the plaintiff) by
letter dated October 16, 1981 specifically invokes
the provisions of Rule 324.
He then makes written representations in sup
port of the draft order sought the body of which
draft order is a reproduction of Form 64 varied by
the insertion of a reference to the reading of the
representations by counsel.
Rule 324 requires that a copy of such written
representations shall be served on each opposing
party together with a copy of the notice of motion.
There is no evidence that Rule 324 has been so
followed.
In the case of an application properly made ex
parte Rule 324 is inconsistent therewith. The
proper practice would be to request that the
matter be heard upon the basis of written
representations and material without the appear
ance of counsel. However if Rule 324 is invoked
then the provisions of that Rule should be com
plied with and so involving service which is patent
ly incompatible with an ex parte application.
Adverting to the style of cause used in the notice
of motion and on the supporting affidavit thereto
in which Her Majesty the Queen is named as a
plaintiff and Athenian Construction Limited is
named as a defendant it has been made abundant
ly clear in The Queen v. Star Treck Holdings Ltd.
([1978] 1 F.C. 61 at page 70) that there is no
action between the parties so named nor can there
be an action until a statement of claim is filed.
The present matter is another instance where a
certificate by the Minister has been filed under
section 223 of the Income Tax Act, S.C. 1970-71-
72, c. 63.
Suggestions were also made in the Star Treck
case (supra) as to the appropriate style to be used
in such circumstances which suggestions have been
adopted and were utilized in the certificate dated
May 22, 1981 filed in this instance.
However that style has been ignored and a style
of cause wholly inaccurate has been substituted
therefor on the affidavit and the notice of motion
when no such action subsists.
The style used on the draft garnishee order to
show cause is corrupted in that part of the style to
the certificate is reproduced but the name of the
taxpayer is omitted. The proper style would be the
reproduction of the style on the certificate in its
material entirety followed by the matter being
between the properly named parties as judgment
creditor, judgment debtor and garnishee respec
tively. The date and place of the order and the
name of the judge before whom the matter was
heard should not be inserted between a portion of
the style but after the title of the Court and before
the style begins (see for example Form 5).
For the foregoing reasons the application is
denied and the notice of motion is so endorsed but
without impediment to the applicant from renew
ing her application properly prepared and support
ed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.