The Legality of Administrative Garnishments Under the Income Tax
Transcription
The Legality of Administrative Garnishments Under the Income Tax
The Legality of Administrative Garnishments Under the Income Tax Act and Other Federal Law David Schulze* PRÉCIS Tant la Commission de l’assurance-emploi que le ministre du Revenu national revendiquent le pouvoir discrétionnaire de pratiquer une saisie-arrêt sur les sommes payables à un prestataire d’assurance-emploi (A-E) endetté envers la Commission ou à un contribuable contrevenant, sans l’intervention des tribunaux. Sans processus judiciaire, les cas d’insaisissabilité prévus par les lois provinciales ne peuvent mettre des créances telles que les prestations d’assistance sociale ou le salaire à l’abri d’une saisie de la part de l’État fédéral. La loi permet l’exécution après l’enregistrement en Cour fédérale des prestations d’A-E ou des impôts exigibles. Quoique cette procédure ait été interprétée comme un recours distinct, l’enregistrement devrait être considéré comme la condition préalable à la saisie-arrêt afin d’assurer que celle-ci respecte les règles du tribunal, notamment l’application des dispositions provinciales relatives à l’insaisissabilité et le droit de demander l’annulation de la saisie. Les lois ne devraient pas être interprétées de manière à exclure la compétence d’un tribunal supérieur, à moins qu’elles ne le stipulent clairement et sans ambiguïté. Il faudrait donc interpréter la Loi sur l’assurance-emploi et la Loi de l’impôt sur le revenu de façon à préserver la compétence de la Cour fédérale à l’égard de la perception des dettes payables à l’État, et non de façon à conférer à l’exécutif un pouvoir de saisie purement administratif distinct. Toute personne a le droit, issu de la common law, d’être entendue (règle audi alteram partem) le droit de ne se voir privée de ses biens que par l’application régulière de la loi et le droit à une audition en vue de la définition des droits et des obligations en vertu des articles 1 et 2 de la Déclaration canadienne des droits, ainsi que le droit à la protection contre les fouilles, les perquisitions ou les saisies abusives en vertu de l’article 8 de la Charte canadienne des droits et libertés. La possibilité d’exécuter une dette reliée à l’A-E ou à l’impôt par la voie d’une saisie-arrêt purement administrative, sans avis ou audition, violerait ces règles. L’exigence relative à l’application régulière de la loi confère aux prestataires d’A-E et aux contribuables le droit à une audition avant de se voir privés de sommes d’argent leur étant payables. Bien que la Charte ne soit généralement pas jugée applicable aux intérêts financiers, le pouvoir supposé de saisir * Of Hutchins Soroka & Dionne, Montreal. (2002) vol. 50, n o 5 ■ 1597 1598 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 tous les revenus et les économies sans audition compromettrait le droit au respect de la vie privée. Si les lois permettent la saisie-arrêt sans audition, les dispositions en cause sont inopérantes en raison de leur incompatibilité avec la Déclaration et la Charte. La jurisprudence est partagée sur la question de savoir si le droit à l’audition s’étend à l’exécution ou s’il y est satisfait par le droit d’appeler de la cotisation établissant la dette. Toutefois, comme l’exécution peut avoir lieu pendant que la cotisation est en appel ou peut s’avérer illégale pour des motifs indépendants de la validité de la cotisation, la saisie-arrêt devrait donner lieu à un droit distinct à l’audition. ABSTRACT Both the Employment Insurance Commission and the minister of national revenue claim a discretionary power to garnish amounts payable to an employment insurance (EI) claimant indebted to the commission or to a delinquent taxpayer, without the intervention of the courts. Without judicial process, exemptions from attachment under provincial statutes do not operate to protect debts such as social assistance benefits or wages from seizure by the federal Crown. Execution after the registration in Federal Court of EI benefits or taxes owing is allowed for under statute. While this has been interpreted as a separate remedy, registration should be read as the condition precedent to garnishment in order to ensure that it respects the rules of the court, which include the application of provincial exemptions from seizure and the right to apply to have seizures set aside. Statutes should not be read so as to oust the jurisdiction of a superior court unless they contain clear and unambiguous language to that effect. Therefore, the Employment Insurance Act and the Income Tax Act should be read as preserving the Federal Court’s jurisdiction over collection of debts owing to the Crown and not as having granted the executive a separate and purely administrative garnishment power. A party has a right at common law to a hearing (the audi alteram partem rule), the right under sections 1 and 2 of the Canadian Bill of Rights not to be deprived of property except by due process of law and a hearing to determine rights and obligations, and protection against unreasonable search or seizure under section 8 of the Canadian Charter of Rights and Freedoms. Allowing for execution of an EI or a tax debt by means of a purely administrative garnishment, without notice or a hearing, would violate these rules. The requirement of due process entitles EI claimants and taxpayers to a hearing before they can be deprived of money owing to them. Even if the Charter has not generally been held to apply to economic interests, the purported power to garnish any and all income or savings without a hearing would put the right to privacy at risk. If the statutes allow garnishment without a hearing, the relevant provisions are inoperative owing to their conflict with the Bill of Rights and the Charter. The case law is divided as to whether the right to a hearing extends to execution or is satisfied by the right to appeal the assessment establishing liability. However, since execution may take place while the assessment is under appeal or may be illegal on grounds unrelated to the validity of the assessment, attachment should give rise to a separate right to a hearing. KEYWORDS: BILL OF RIGHTS ■ CONSTITUTIONAL LAW ■ ENFORCEMENT ■ SEIZURE ■ TAX ADMINISTRATION ■ TAX COLLECTIONS the legality of administrative garnishments ■ 1599 [F]or it is a very reasonable and true saying, that if an Act of Parliament should ordain that the same person should be a party and Judge, or, which is the same thing, Judge in his own cause, it would be a void Act of Parliament; for it is impossible that one should be Judge and party, for the Judge is to determine between party and party, or between the Government and the party; and an Act of Parliament can do no wrong though it may do several things that look pretty odd; for it may discharge one from his allegiance to the Government he lives under, and restore him to the state of nature; but it cannot make one that lives under a Government Judge and party. Chief Justice Holt City of London v. Wood1 INTRODUCTION According to a famous legal adage, no-one may dispense judgment on his own behalf (nemo debet esse judex in propria causa). Nevertheless, under Canadian law, there appears to be an exception to this rule: the minister of national revenue and the Canada Employment Insurance Commission exercise the powers reserved to a court, purely on the basis of statutory authority. They may garnish money owing to taxpayers or employment insurance (EI) claimants by a simple notice to their debtors, not only before judgment but without any judicial authorization. At present, there is no question that federal government departments exercise these powers and that only their internal procedures and the objections of those affected act as a check on the process. For instance, in July 1992, Revenue Canada (now known as the Canada Customs and Revenue Agency [CCRA]) seized $1,300 from the bank account of a Toronto woman for taxes owing by an impostor who had stolen her social insurance card; over a year later, she had received only a partial reimbursement.2 Such errors are inherent in the process: a study of administrative seizures by the Internal Revenue Service (IRS) in the United States estimated that the extent of error, principally for garnishments of bank accounts and wages, was 2.8 percent in 1986 or 16,100 taxpayers. While mistakes or delays in the application of payments accounted for most of these errors, the IRS also seized the assets of taxpayers already making instalment payments or simply collected tax from the wrong taxpayer.3 The question is whether the extraordinary power of administrative garnishment without judicial authorization claimed by the federal government is legal or constitutional and, if so, whether it is subject to any other limits imposed by law. Of course, this power can be used against anyone who is liable to the government under the applicable statutes, but my primary concern is with low-income earners, who may have all their sources of revenue garnished, without any recourse. Only if the garnishment is issued in court can a taxpayer or claimant invoke the exemptions from seizure granted by provincial law.4 If the federal Crown is not obliged to obtain the court’s authorization for a garnishment, it can argue that it has interjurisdictional immunity from provincial statutes5 such as the Ontario Wages Act, which provides that 80 percent of wages “are exempt from seizure or garnishment,”6 or statutes that prohibit the garnishment of social assistance payments or 1600 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 compensation to injured workers or victims of crime.7 Only if the garnishment is issued in court can a party apply to have it set aside on grounds such as mistake, fraud, or changed circumstances.8 T H E S TA T U T O R Y P R O V I S I O N S A N D T H E I R I N T E R P R E TA T I O N B Y T H E G O V E R N M E N T Government Practice Where the Canada Employment Insurance Commission or the minister of national revenue “has knowledge or suspects that a person is, or will be within one year, liable to make a payment” to a claimant or taxpayer who in turn has a liability under the Employment Insurance Act9 or the Income Tax Act,10 the commission or the minister may “require [that] person to pay forthwith” and directly to the commission or the receiver general “the moneys otherwise payable” to the taxpayer or claimant.11 The amount garnished is counted as a payment on account of the liability under these statutes. According to their interpretation of these statutes, the commission and the minister have the discretionary power to seize any and all amounts of money payable to a delinquent taxpayer or an EI claimant ordered to reimburse the commission. Amounts payable include more than bank accounts and wages; a consultant’s report found that in some cases during the 1980s, Revenue Canada even garnished social assistance payments.12 Further, the commission and the minister claim the power to seize up to 100 percent of those assets. The federal government’s policy manual merely instructs government departments to “take into account the debtor’s ability to pay.”13 The assessment of the amount owing is the result of an administrative determination, but the claimant or taxpayer may file an appeal to contest the decision on her entitlement or obligations under either Act. At the same time, this assessment forms the full legal basis for the commission’s and the minister’s attachment of debts. Any other form of execution, however, would need the intervention of the courts. Judicial Construction of the Garnishment Power Both EI Act sections 126(1) and (2) and ITA section 223 allow the commission and the minister, respectively, to certify an amount owing to them and to register that certification in Federal Court, after which it has the same force and effect as a judgment and is enforceable. Nevertheless, certification and registration have not been interpreted as the condition precedent for the garnishment proceeding described in EI Act section 126(3) and ITA section 224; rather, they are regarded as separate and unrelated procedures. The CCRA’s administrative position is that ITA section 223 grants a power to “obtain a writ or memorial and seize property, and have it advertised and sold by the sheriff.”14 The courts have rejected arguments linking the two powers in cases under the ITA. In Lambert, Walsh J held that “there is nothing whatsoever in the Act which makes use of the procedure under section 224 dependent on the production or the legality of administrative garnishments ■ 1601 registration of a certificate having the same force and effect as a judgment by virtue of section 223.”15 In Sorenson, the Federal Court of Appeal dismissed a similar argument without further discussion.16 A line of cases on the priority of third-party demands made by the Crown under ITA section 224 has also held, in obiter dicta, that such demands do “not depend on a judgment or even on a certificate that has the effect of a judgment”17 and are a measure which “allows the M.N.R. [Minister of National Revenue] to issue his own garnishee summons without having to go to any court or get any kind of court judgment.”18 The provision constitutes “nothing more nor less than a statutory, non-judicial instrument of garnishment,”19 which is “available to the Minister in his own right, exercisable by himself alone, without the necessity of court action.”20 A taxpayer or claimant who faces hardships owing to the garnishment has no equitable recourse to the court, for garnishment is a “purely administrative decision” and the minister has free reign to choose the “course of action [which] is the one most likely to achieve the optimum result from his point of view.”21 The result is that in the case of a dispute that goes to the validity of the attachment (where, for instance, the ownership of the debt or the identity of the garnisheed debtor was disputed), it appears that only an application for judicial review of the administrative garnishment would provide a remedy, and only after the amounts had already been garnished.22 THE POLIC Y BEHIND ADMINISTRATIVE GARNISHMENTS Assessments under revenue statutes are unique in law because they allow the state as creditor to determine unilaterally the extent of the taxpayer’s liability as debtor. Seventy years ago, the United States Supreme Court held that it is no denial of due process for a tax assessment to be enforceable even without a prior judicial determination of liability, so long as the assessment can later be appealed. The court justified the government’s power to create liability on the basis of “the need of the government promptly to secure its revenues.”23 In another case, the court gave a more explicit explanation for the government’s extraordinary power to establish a party’s liability without a hearing: Once the tax is assessed the taxpayer will owe the sovereign the amount when the date fixed by law for payment arrives. Default in meeting the obligations calls for some procedure whereby payment can be enforced. The statute might remit the Government to an action at law wherein the taxpayer could offer such defense as he had. A judgment against him might be collected by the levy of an execution. But taxes are the life-blood of government, and their prompt and certain availability an imperious need. Time out of mind, therefore, the sovereign has resorted to more drastic means of collection. The assessment is given the force of a judgment, and if the amount assessed is not paid when due, administrative officials may seize the debtor’s property to satisfy the debt. In recognition of the fact that erroneous determinations and assessments will inevitably occur, the statutes, in a spirit of fairness, invariably afford the taxpayer an 1602 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 opportunity at some stage to have mistakes rectified. Often an administrative hearing is afforded before the assessment becomes final; or administrative machinery is provided whereby an erroneous collection may be refunded; in some instances both administrative relief and redress by an action against the sovereign in one of its courts are permitted methods of restitution of excessive or illegal exaction. Thus the usual procedure for the recovery of debts is reversed in the field of taxation. Payment precedes defense, and the burden of proof, normally on the claimant, is shifted to the taxpayer. The assessment supersedes the pleading, proof, and judgment necessary in an action at law, and has the force of such a judgment. The ordinary defendant stands in judgment only after a hearing. The taxpayer often is afforded his hearing after judgment and after payment, and his only redress for unjust administrative action is the right to claim restitution. But these reversals of the normal process of collecting a claim cannot obscure the fact that after all what is being accomplished is the recovery of a just debt owed the sovereign. If that which the sovereign retains was unjustly taken in violation of its own statute, the withholding is wrongful. Restitution is owed the taxpayer. Nevertheless he may be without a remedy. But we think this is not true here.24 Canada’s Federal Court also endorsed the immediate enforceability of assessments when it held that a determination by the commission alone that an amount was owing under the Unemployment Insurance Act was enough to render the claim enforceable: The plaintiff ’s counsel objects that, by determining for itself that the amount was due and payable, the defendant [the commission] was taking the law into its own hands and garnisheeing his client’s salary without first obtaining a judgment establishing the claim. To accept this argument would be contrary to the entire principles of the Unemployment Insurance Act. There are thousands and thousands of overpayments made annually, whether as a result of administrative errors or, as is the case here, a fraudulent claim on the part of a claimant, and to require the commission to obtain a court judgment in each case establishing the validity of the claim for overpayment before attempting to recover it, when the liability is clear, would merely impede the work of recovering such overpayments and also seriously harm the beneficiaries themselves by imposing an added burden of court costs on them.25 It is important, however, to distinguish the presumptive validity of the government’s claim to revenue, even without a judgment, from the validity of the means it chooses to collect on the claim. For Parliament to allow the commission to make a final and enforceable determination of how much a person owes for overpayments, barring appeal, may provide for efficient administration, but for the commission to decide what property it will seize in satisfaction of that debt without judicial authorization is purely arbitrary. Nevertheless, the courts’ view of the importance of government revenue has led them to sanction not just the assessment of taxes owing, but also the collection of the amounts assessed without judicial authorization. Recently the United States Supreme Court reviewed its own 19th-century decisions allowing for enforcement of debts to the government without the courts’ intervention and could identify only “executive urgency” as the justification: the legality of administrative garnishments ■ 1603 It is true that, in cases decided over a century ago, we permitted the ex parte seizure of real property when the Government was collecting debts or revenue. See, e.g., Springer v. United States, 102 U.S. 586, 593-594 (1881); Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856). Without revisiting these cases, it suffices to say that their apparent rationale—like that for allowing summary seizures during wartime, see Stoehr v. Wallace, 255 U.S. 239 (1921); Bowles v. Willingham, 321 U.S. 503 (1944), and seizures of contaminated food, see North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908)—was one of executive urgency. “The prompt payment of taxes,” we noted, “may be vital to the existence of a government.” Springer, supra, at 594. See also G.M. Leasing Corp. v. United States, 429 U.S. 338, 352, n. 18 (1977) (“The rationale underlying [the revenue] decisions, of course, is that the very existence of government depends upon the prompt collection of the revenues”).26 The state’s power to unilaterally issue assessments should always be kept distinct from its power to collect the amounts assessed. It is precisely the unilateral nature of its origin that distinguishes the obligation to pay taxes (or most other amounts owing to government) from ordinary sources of legal obligation. Unlike liability in contract or in tort, it is not primarily the taxpayer’s undertakings or her acts or omissions that have led to the claim against her for taxes owing, but the operation of rules determined by the state. Under the circumstances, it is at least more efficient to allow the state’s assessment of the amount of the liability to enjoy a presumption of validity. Thus, assessments effectively acquire the same force as a default judgment whenever the assessment is not appealed, without the necessity of judicial endorsement. The power to collect on a tax debt, however, is an entirely different matter from the power to determine its amount. Collection does not obey the rules of tax law alone but calls directly into question a taxpayer’s rights to her property, as well as the rights of her other creditors. More particularly, an assessment might be entitled to a presumption of validity because the minister has some advantage over the taxpayer in determining, for instance, whether her income is taxable. However, the mere fact that the taxpayer owes a debt places the minister in no better position to decide whether her assets are or should be available to the government as creditor. The competing interests in the taxpayer’s assets make execution precisely the sort of issue that calls for impartial adjudication. The argument has been made that the special nature of taxation justifies the power to seize property without judicial authorization. Both the Scottish Law Commission and a British government committee chaired by Lord Keith of Kinkel took the view that summary methods of recovery without the need for a judgment are appropriate for local rates and central government taxes, on the basis that rating bodies and tax collectors cannot choose their debtors, [and] that such creditors are public bodies who ought to be trusted to use their powers of enforcement in a responsible manner.27 The auditors who reviewed Revenue Canada’s operations in the 1980s came to the same conclusion: 1604 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 One reason why the Department has been provided with these extraordinary powers is the manner in which tax obligations arise. These debts are generally established on an involuntary basis, and the Department has no opportunity to approve or reject the credit-worthiness of its debtors. By contrast, business debts are generally incurred voluntarily at the time a commercial contract for goods or services is entered into. In addition, the concept of credit limits does not affect tax obligation. The taxpayer may generate a tax liability of any amount with no control being exercised on the upper limit by the lender—the Department. This is true regardless of the credit-worthiness of the debtor. In common business practice, credit terms are granted by the lender on a discretionary basis, depending on the credit-worthiness of the debtor.28 The problem with this argument is that it is not based on principle but on administrative expediency. Its starting point is that the state has written the rules of tax law and made itself an almost universal creditor; however, those rules establish no limits on the credit available to taxpayers, corresponding to each debtor’s ability to pay. The solution proposed for this unavoidable omission is to grant the state the power to seize assets without the inconvenience of judicial authorization. In other words, the state should have the benefit of setting the rules for tax liability without the burden of relying on the courts in order to collect, as other creditors do, simply because that process might diminish its chance of success. Reduced to its simplest version, this argument endorses arbitrary measures because they can often be effective. COMMON LAW GROUNDS FOR CHALLENGING A P U R E LY A D M I N I S T R A T I V E G A R N I S H M E N T The Presumption Against Interference with the Court’s Jurisdiction Notwithstanding the case law, the legislative history of the power to issue thirdparty demands for tax owing supports a narrower reading, which would require certification and registration in court before garnishment. The various collection powers were added to The Income War Tax Act in 1923,29 while the Unemployment Insurance Act of 1955 introduced the same collection provisions still found in the current EI Act.30 At the time of these amendments, recovery under both statutes would have come under the jurisdiction of the Exchequer Court by virtue of the court’s original concurrent jurisdiction “in all cases relating to the revenue.”31 The Exchequer Court’s rules, however, made no provision for garnishment of debts.32 It is therefore logical to assume that Parliament introduced a special provision to ensure that this remedy was available to the commission and the minister, but without any intention thereby to deprive the Exchequer Court of jurisdiction over the new process. The special power was maintained even after the creation of the Federal Court, whose rules provide for garnishment, presumably because prejudgment attachment remains impossible under the Federal Court Act.33 Both the commission and the the legality of administrative garnishments ■ 1605 minister would still need a special statutory provision simply to obtain a garnishment order from the Federal Court in the absence of a trial judgment rendered against claimants or taxpayers. One of the canons of statutory interpretation is a strong presumption “against construing a statute so as to oust or restrict the jurisdiction of the superior courts.”34 Moreover, “[i]t is . . . presumed that a statute does not create new jurisdictions or enlarge existing ones, and express language is required if an Act is to be interpreted as having this effect.”35 Since the Federal Court and its predecessor the Exchequer Court have always had jurisdiction over amounts owed to the federal Crown, the EI Act (and its predecessors) and the ITA should be read in a manner consistent with the Federal Court’s jurisdiction and not be interpreted as having granted the executive a separate and purely administrative garnishment power. The registration in Federal Court of the amount certified to be owing would therefore be required to give the certified amount the force of a judgment, followed by garnishment in accordance with the rules of the court. The Right to a Hearing Another important presumption of statutory interpretation is that “a statute should not be construed so as to interfere with or prejudice established private rights under contracts or the title to property, unless it is clearly intended to do so.”36 This presumption applies particularly strongly to garnishment because garnishment is a derogation from common law.37 The United States Supreme Court held over a century ago that a hearing is the basic requirement at common law for execution of an attachment. In Mitchell v. St. Maxent’s Lessee, a plaintiff had issued a prejudgment writ to attach property after the defendant’s death but without notice to his heirs, which would have given them an opportunity to present a defence. Davis J rejected the argument that no hearing was necessary: But it is insisted that the rules of the common law only attach to suits prosecuted in the ordinary way, and do not apply where the proceedings are commenced by seizing property under a writ of attachment. This is a novel view, for the law of attachment, being in derogation of the common law, courts are not inclined to extend its provisions beyond the requirements of the statute authorizing it. . . . As an execution is required, and the law is silent about the manner of its issue, it follows that it is to be tested and issued as writs of fieri facias are on judgments obtained through the usual methods of the common law.38 The decision in Mitchell v. St. Maxent’s Lessee therefore stands for the principle that before an attachment can be executed, the common law requires a hearing in court (“the test of the process”) unless the statute has clearly and unambiguously dispensed with it (“changed the rule”). To the extent that the EI Act and the ITA have failed to explicitly exclude a hearing before garnishment, the principle in 1606 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 Mitchell v. St. Maxent’s Lessee requires any ambiguity to be resolved in favour of requiring a hearing. At least one case has suggested that the Unemployment Insurance Act’s internal appeal process concerning the amount of benefits to which a claimant is entitled39 should be considered a sufficient hearing even for the purposes of an earlier garnishment. In Prevost, Walsh J held that “[i]n establishing a liability to return overpayments on demand, the claimants are not deprived of recourse, for there is the appeal procedure, established in the Act, to the board of referees and eventually to the umpire.”40 It is, however, hard to see how the right to a hearing on the garnishment is respected by this process: the hearing before the board of referees takes place only at the claimant’s initiative and usually long after the claimant’s funds have been seized. In addition, it deals only with the entitlement to benefits (“the validity of the claim”) and gives a claimant no recourse against the process of garnishment itself. The same issue has arisen in Quebec concerning the power of the provincial minister of revenue to file certificates of taxes owing in Superior Court: the prothonotary or clerk automatically renders judgment in favour of the deputy minister, making the amounts immediately exigible, and notice to the taxpayer is not even required.41 The case law is split on whether taxpayers condemned by default have the right under the Code of Civil Procedure42 to ask for revocation of these judgments. One line of cases has held that the only way to challenge the judgment allowing for execution is to use the mechanism that the Taxation Act provides for appealing the assessment that formed the basis for the prothonotary’s decision.43 Execution based on a certificate filed with the court has been held to be merely a provisional measure, consistent with the principle that taxpayers have to pay first and challenge assessments later.44 The better line of cases has followed the reasoning of Montgomery JA in a 1976 decision, where he allowed a revocation and wrote, “I find it inconceivable that a taxpayer could be condemned to pay a sum of money merely because a minister should certify that it is owing without having some recourse to prove that in fact no such sum is owing.”45 Applying Montgomery JA’s reasoning, Frenette J wrote more recently that revocation was justified by the audi alteram partem rule: The very foundation of s.482 C.C.P. is the respect of the legal maxim audi alteram partem, which draws its origins from the Magna Carta, enacted in 1215 in England. . . . The audi alteram partem rule means that any person whose interests are affected by an administrative, quasi-judicial or judicial decision has the right to be informed beforehand of the facts at issue, has the right to contest that version of the facts and has the right to present a defence and to present his own point of view. . . . It may be justifiable in the public interest that the Minister of Revenue has the benefit of extraordinary rights and of an accelerated procedure in order to obtain a decision which is characterized as a judgment according to s.13 of the Act Respecting the Ministère du Revenu but that the defendant should be deprived of the right to be informed of this action and not have the right to present a defence seems to me to be contrary to the rights guaranteed by the Canadian and Quebec Charters and recognized by doctrine and jurisprudence.46 the legality of administrative garnishments ■ 1607 The common law right to a hearing therefore extends to prejudgment execution, even under a taxing statute.47 If certificates registered in court to allow for execution of a tax debt without notice or a hearing violate the rule, then clearly so do purely administrative garnishments to recover tax or EI debts, and the statutes should not be read to allow them without express language. THE VALIDIT Y OF THE PROVISIONS UNDER THE BILL OF RIGHTS The Right Not To Be Deprived of Property Except by Due Process of Law The Canadian Bill of Rights48 provides in section 1 that a person shall not be deprived of property except by due process of law. Section 2 provides that no federal law shall be construed so as to deprive a person of a hearing to determine his rights and obligations. Applied to the ITA and the EI Act, the Bill of Rights’ requirement of due process of law demands a hearing before taxpayers or EI claimants can be deprived of money owing to them. Alternatively, to the extent that there is any ambiguity, section 2 of the Bill of Rights requires the statutes to be interpreted as including the right to a hearing on the attachment. Finally, if the statutes are held to unambiguously allow garnishment without a hearing, then under section 2, those provisions are inoperative owing to their conflict with section 1. The Case Law on the ITA Collection Provisions Only one case has considered the application of the Bill of Rights to the ITA’s collection provisions.49 In the 1975 decision in Lambert,50 Addy J held that section 2(e) of the Bill of Rights does not require a hearing before a taxpayer’s assets are seized using a certificate for taxes owing registered in Federal Court under ITA section 223. The possibility under the ITA of appealing the final issue of taxes owing to the Tax Review Board (now the Tax Court of Canada) was deemed sufficient to fulfill the taxpayer’s right to a hearing. This decision attached considerable importance to the possibility that a taxpayer could prevent final disposition of his assets by application to the court, even before a hearing by the Tax Review Board. Another important consideration in determining the issue before this Court is that the taxpayer has the right to apply to a court to prevent a sale or disposition of any assets seized and, pending final determination of the liability for tax, should a prima facie case be shown against the assessment and should it also be established that the taxpayer would be prejudiced by interim sale of the assets, he would be entitled to have any proposed sale or disposal of the assets stayed or, in special circumstances to have the execution lifted against certain assets which might be likely to spoil or deteriorate.51 Thus, the “extraordinary” right simply to register a certificate in court and then attach the debt was saved, in part, because a taxpayer could ask the court to lift it.52 1608 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 A year earlier, however, on a previous motion by the same taxpayer, Walsh J had ruled that registration of a certificate in court under ITA section 223 was not required in order for a section 224 garnishment to take place.53 If Walsh J was correct that a section 224 garnishment needs no prior registration of the amount owing in Federal Court, then Addy J’s decision holds that section 224 is a violation of the Bill of Rights because, unlike section 223, it does not include the “right to apply to a court to prevent a sale or disposition of any assets seized . . . pending final determination of the liability for tax.” Considering these two decisions together, if the right to a hearing before the court on the execution of a certificate registered under section 223 saves that provision from contravening the Bill of Rights, then an administrative garnishment under section 224 alone violates the Bill of Rights because the court has no involvement in the process. The Statutory Provisions Considered in Light of the Singh Case The Supreme Court of Canada’s decision in Singh54 breathed new life into the interpretation of the Bill of Rights. Half the bench of the Supreme Court held that a provision of the Immigration Act, 1976 allowing a refugee claimant’s appeal to be dismissed without a hearing was inoperative because it violated the right to a hearing under section 2(e) of the Bill of Rights, while the other half of the panel arrived at the same result relying on the Canadian Charter of Rights and Freedoms.55 Beetz J wrote: [I]n s. 2(e), what is protected by the right to a fair hearing is the determination of one’s “rights and obligations,” whatever they are and whenever the determination process is one which comes under the legislative authority of the Parliament of Canada. . . . The most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned.56 Beetz J held that this right to a hearing on rights and obligations is in addition to, and not merely a consequence of, the section 1 right not to be deprived of “life, liberty, security of the person and enjoyment of property . . . except by due process of law.” When this principle is applied to the EI Act and the ITA, it is apparent that two distinguishable rights or obligations are at issue when the commission or the minister assesses benefits or taxes owing and commences a garnishment to recover them: first, the obligation to repay benefits or pay taxes; and second, the right of claimants or taxpayers at common law to receive wages or other debts owing to them. The final determination of liability should not be made and garnishment of the amount owing should not be imposed without a hearing as guaranteed by section 2(e). The commission and the minister might argue that the right to one’s assets is not sufficiently serious to engage the Bill of Rights. They might point to the following comment by Beetz J: the legality of administrative garnishments ■ 1609 I do not wish to suggest that the principles of fundamental justice will impose an oral hearing in all cases. . . . The most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences for the individuals concerned.57 Since the hearing sought in Singh concerned a possible threat to the applicants’ lives, the commission and the minister might argue that it imposed a higher standard than that which would apply to a person’s right to payment of debts owing to him. However, to take this position would be to seriously underestimate the “consequences for the individuals concerned” of a garnishment of their wages or savings. In the case of garnishment under the EI Act, the debtors would almost inevitably be people who were currently or recently unemployed, their other assets would usually be limited, and their wages and personal savings would be vital to their personal well-being. Even for ordinary taxpayers, strong support for giving special attention to wages and personal savings is offered by the US case law. In Sniadach v. Family Finance Corp.,58 the United States Supreme Court ruled that a Wisconsin statute allowing for the prejudgment garnishment of wages without notice or a hearing was a violation of the procedural due process requirement under the Fourteenth Amendment of the constitution. Douglas J held: We deal here with wages—a specialized type of property representing distinct problems in our economic system. We turn then to the nature of that property and problems of procedural due process. A prejudgment garnishment of the Wisconsin type is a taking which may impose tremendous hardship on wage earners with families to support. . . . The result is that a prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall. Where the taking of one’s property is so obvious, it needs no extended argument to conclude that absent notice and a prior hearing this prejudgment garnishment procedure violates the fundamental principles of due process.59 Three years later, in Fuentes v. Shevin, the court took a similar approach to the prejudgment seizure of household goods and made it clear that a person’s rights had to be protected by a prior hearing: The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment—to minimize substantively unfair or mistaken deprivations of property, a danger that is especially great when the State seizes goods simply upon the application of and for the benefit of a private party. So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person’s 1610 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 right to enjoy what is his, free of governmental interference. See Lynch v. Household Finance Corp., 405 U.S. 538, 552. . . . If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.60 The US cases support the argument that where a power exists to seize all of a person’s income and assets, as under the EI Act and the ITA, the statutes pose a risk that meets Beetz J’s test that “the severity of the consequences for the individuals concerned” be sufficiently serious and the statutes therefore engage a right to due process mirrored by “the procedural content of fundamental justice” guaranteed by section 2(e) of the Bill of Rights. Further, a hearing must take place before the property is taken in order for the right to be meaningful. THE GUARANTEE AGAINST UNREA SONABLE SEARCH OR SEIZURE UNDER SECTION 8 OF THE CHARTER The Right The Canadian Charter of Rights and Freedoms provides in section 8 that “[e]veryone has the right to be secure against unreasonable search or seizure.” Only a year after the Charter was adopted, a leading constitutional scholar suggested that where taxation statutes gave governments “the power to seize property, without the intervention of any judicial authority or other authority with sufficient independence, [such power] could in fact be considered abusive within the meaning of s. 8 of the Canadian Charter.”61 The Provisions Considered in Light of British Columbia (Deputy Sheriff ) v. Canada The British Columbia Court of Appeal had to consider Charter issues when it dealt with the effects of a seizure and sale of property by a deputy sheriff acting on a writ issued by the Federal Court of Canada to enforce a certificate registered by the minister of national revenue under ITA subsection 223(2) for corporate income tax assessed as owing. A few weeks later, the Royal Bank of Canada obtained default judgment in the Supreme Court of British Columbia against the same corporation and tried unsuccessfully to seize its property. The Royal Bank argued that the minister’s statutory power to enforce a certificate for which the taxpayer might have had no notice was contrary to section 8 of the Charter. Writing for the majority, Lambert JA agreed in principle and held that the application of section 8 was not limited to seizures to obtain evidence that might be used to incriminate a person: In my opinion the seizure of chattels under the Income Tax Act without any notice to the taxpayer of an intention to seize the chattels and without giving the taxpayer reasonable time, following the notice, to discharge the tax debt, in circumstances where there is no reasonable ground for a belief that the taxpayer intends to avoid the payment of the tax debt, may constitute an unreasonable course of conduct and an the legality of administrative garnishments ■ 1611 unreasonable seizure. The same is true of garnishment of wages and recovery by deduction under the enforcement scheme of the Act since they are equally within the definition of “seizure” on which I rely. . . . A person who is subject to seizure may well suffer losses far in excess of the amount of the debt that is discharged through the seizure. Those losses may extend beyond the direct value of the goods seized and may extend to injury to reputation and credit. The process of seizure is therefore likely to involve a serious invasion of a reasonable expectation of privacy. See Hunter v. Southam Inc. (1984), 11 D.L.R. (4th) 641 . . . per Dickson, C.J.C. at p. 652. It is for that reason that the Canadian Charter of Rights and Freedoms guarantees the right to be secure against unreasonable seizures.62 Restricting himself to the precise circumstances of the case, however, Lambert ultimately ruled that there was no section 8 violation on the facts of the case, because the corporation had “invited” the imposition of the tax by designating the debts at issue as taxable. However, he also wrote: JA The situation [regarding constitutionality] might well be otherwise where the seizure is founded on a certificate issued under s. 223(2) in circumstances where the taxpayer is an individual who has had no actual notice of the specific possibility of seizure, other than the bare assessment of tax. . . . Such a seizure might well be unreasonable and contrary to s. 8 of the Charter.63 EI Act section 126(3) and ITA section 224 are interpreted by the commission and the minister as giving them a right to seize assets without even issuing a certificate and registering it in Federal Court. (The commission’s procedures call for a copy of the third-party demand to be sent to the debtor, but this constitutes administrative policy and is not a legal requirement.)64 If the only notice required by statute was the “bare assessment” of taxes or benefits owing, according to the decision in British Columbia (Deputy Sheriff ), a resulting seizure would be unconstitutional. Administrative Garnishment as an Invasion of the Privacy Right The appellate case law in other jurisdictions has taken a narrower view. In the bestknown case, the Alberta Court of Appeal held that section 8 of the Charter did not apply to the taking of property.65 Nevertheless, that case concerned an expropriation for which the provincial statute provided for notice to the property owner and a hearing on any objection. The Saskatchewan Court of Appeal has held that a garnishment under ITA subsection 224(1.2) to recover deductions at source collected by an insolvent employer was not an “unreasonable” seizure and, finding no privacy right under threat, declined to extend the scope of section 8 “to cover pure economic interests.”66 This decision suggests, however, that section 8 can apply to the attachment of property if it threatens the person’s privacy rights. In fact, Dickson J’s decision in Hunter v. Southam Inc.67 provides support for invoking section 8 as protection from a garnishment imposed by administrative discretion. Dickson J cited with approval the dictum of Stewart J in Katz v. United States 68 that similar language in the US constitution’s Fourth Amendment “protects 1612 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 people, not places.” Dickson J held that the purpose of section 8 is “to protect individuals from unjustified state intrusions upon their privacy.”69 Since the commission’s and the minister’s interpretation of the statutes would allow them to garnish all of a claimant’s or a taxpayer’s income and all of her savings, that right would be completely at risk: privacy has very little meaning in our society for a person without financial resources. Consider the following examples70 provided by staff at community legal clinics: I had a client once who was eligible for EI but it was being garnished at 100%. (The HRDC [Human Resources Development Canada] guidelines are such that for relatively high debt amounts 100% attachment is the norm.) Social assistance deemed him to be in receipt of the gross EI benefit and he was left with no income whatsoever. The only solution was to seek remission under EI which is a process that does not in fact result in remission and can take months. As a result, this guy was without income for months at a time. It was pitiful. I used to see him living in the park.71 I recently had an EI case where they were taking 100% of his EI cheque because supposedly he had been given an opportunity to declare earnings and he had not done so, following one breach of non-declaration of earnings. . . . Client found himself with no income with dependent spouse and 2 young children. Spouse and children eventually returned to spouse’s parents’ home so that they could eat (located several hundred miles’ away) and as Ontario Works deems all EI as income—even when not received—he simply had no income. We appealed to Board of Referees who reduced the penalty substantially, but then local EI office told us that it was still being collected at 100% until all penalty and EI was repaid because that decision was made in Belleville, not at local office. I contacted Belleville and they refused until I went to 3rd level supervisor, who finally agreed to reduce 100% to 50%!72 If the fundamental test for finding a violation of section 8 is not simply an investigation leading to a search or an interference with property constituting a seizure, but an invasion of privacy, then there can be no doubt that depriving a currently or recently unemployed person of his wages and savings is a violation of that right. It should be recalled that the US case law beginning with Sniadach73 offers further support for the fundamental importance of access to one’s wages and savings. Dickson J also described prior authorization as essential “to validate governmental intrusions upon individuals’ expectations of privacy.”74 The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conf licting interests of the state and the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are thus demonstrably superior. . . . The person performing this function need not be a judge, but he must at a minimum be capable of acting judicially.75 The commission and the minister interpret the EI Act and the ITA as allowing them to seize assets without any “prior authorization” by a person “acting judicially.” the legality of administrative garnishments ■ 1613 The absence of any prior judicial authorization, combined with the infringement of the debtor’s right to privacy through deprivation of the “necessities of life,” make the seizures as currently practised a breach of section 8 of the Charter. If the statutes can only support the commission’s and the minister’s interpretation of them, then the provisions are unconstitutional. Do Revenue Statutes Constitute an Exception? The Supreme Court of Canada signalled a special approach to notice, hearings, and seizures in tax law when it held, in R v. McKinlay Transport Ltd.,76 that the minister of national revenue’s power to compel disclosure pursuant to an audit does not constitute an unreasonable search or seizure within the meaning of section 8 of the Charter, even in the absence of judicial authorization, such as a warrant. Wilson J held that the minister was entitled to broad powers in supervising the income tax system because it is “a self-reporting and self-assessing one which depends upon the honesty and integrity of the taxpayers for its success.”77 Since “certain persons will attempt to take advantage of the system and avoid their full tax liability . . . the Minister of National Revenue must be given broad powers in supervising this regulatory scheme to audit taxpayers’ returns and inspect all records which may be relevant to the preparation of these returns,” including the right to carry out “[a] spot check or a system of random monitoring.”78 In TransGas,79 the Saskatchewan Court of Appeal relied upon McKinlay to hold that an administrative garnishment to collect income tax deductions at source owed by an employer does not infringe section 8 of the Charter. The court baldly stated, “Since it would be impractical to require a government to resort to a court to collect such taxes, Parliament has established an expedient means whereby ‘withheld’ tax deductions may be collected through administrative means.”80 The court failed to explain why it would be “impractical” for the government to seize property by court order as all other creditors do (though it is easy to agree that collecting “through administrative means” would be “expedient”), and it failed to understand that taking property is a much more final measure than auditing documents. Similarly, in Lessard-Poulin, the Quebec Court of Appeal relied upon McKinlay to suggest that the risk of tax evasion justified the province’s power to certify tax debts as owing and render them enforceable by registering them in court, even without notice to the taxpayer.81 However, while the Supreme Court had held that the minister could prevent tax evasion by collecting information without a warrant in order to ensure the accuracy of assessments, the Quebec Court of Appeal now suggested a radically different proposition—that tax evasion should be prevented by seizing property without a court order as soon as any tax might be owing. As discussed earlier, in the decision in Fuentes, the United States Supreme Court struck down prejudgment garnishments of household effects between parties as a violation of due process. Nevertheless, the court acknowledged that it had previously upheld certain prejudgment seizures, including those undertaken for the sake of tax collection: 1614 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 There are “extraordinary situations” that justify postponing notice and opportunity for a hearing. Boddie v. Connecticut, 401 U.S., at 379. These situations, however, must be truly unusual. Only in a few limited situations has this Court allowed outright seizure without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property to collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, and to protect the public from misbranded drugs and contaminated food.82 Five years later, in GM Leasing Corp. v. United States, in the context of the Fourth Amendment’s guarantee against warrantless search and seizure, the United States Supreme Court declared itself “unwilling to hold that the mere interest in the collection of taxes is sufficient to justify a statute declaring per se exempt from the warrant requirement every intrusion into privacy made in furtherance of any tax seizure.”83 A similar issue was before the United States Supreme Court in 1993 as a question of due process arising from a civil forfeiture action. In James Daniel Good Real Property,84 the federal government had seized an individual’s house and land on the grounds that the property had been used to commit a drug offence. A warrant had been issued to authorize seizure, but at an ex parte hearing, and the government had in fact seized the property without any prior notice to its owner, the alleged offender. The majority held that the seizure was unconstitutional without proof of “exigent circumstances” because “the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture.”85 Kennedy J’s judgment for the majority admitted that there could be “exceptions to the general rule requiring predeprivation notice and hearing,” but only under certain circumstances: Whether the seizure of real property for purposes of civil forfeiture justifies such an exception requires an examination of the competing interests at stake, along with the promptness and adequacy of later proceedings. The three-part inquiry set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), provides guidance in this regard. The Mathews analysis requires us to consider the private interest affected by the official action; the risk of an erroneous deprivation of that interest through the procedures used, as well as the probable value of additional safeguards; and the Government’s interest, including the administrative burden that additional procedural requirements would impose. Id., at 335.86 In the event, the majority concluded that the offender’s right to maintain control over his home was an important private interest and that “the practice of ex parte seizure, moreover, creates an unacceptable risk of error.”87 In particular, the the legality of administrative garnishments ■ 1615 statute was clearly not meant “to deprive innocent owners of their property”;88 yet, in an ex parte seizure proceeding, “the Government is not required to offer any evidence on the question of innocent ownership or other potential defenses a claimant might have.”89 Finally, the majority noted that the asset at issue was real estate, which could not be removed from the jurisdiction, and the federal government could therefore protect its interests through lesser measures, such as filing a notice of lis pendens.90 The United States Supreme Court had already ruled in Fuentes, in the context of prejudgment garnishments between private parties, that notice and a hearing are the minimum measures needed to ensure that the taking of property is lawful: The requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person’s possessions. But the fair process of decisionmaking that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented. It has long been recognized that “fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-172 (Frankfurter, J., concurring).91 In James Daniel Good Real Property, in the context of claims to private property by the state, the United States Supreme Court ruled that independent adjudication of the seizure was an equally important right for which a subsequent hearing on liability was no replacement: The purpose of an adversary hearing is to ensure the requisite neutrality that must inform all governmental decisionmaking. That protection is of particular importance here, where the Government has a direct pecuniary interest in the outcome of the proceeding. See Harmelin v. Michigan, 501 U.S. 957, 979, n. 9 (1991) (opinion of Scalia, J.) (“[I]t makes sense to scrutinize governmental action more closely when the State stands to benefit”). Moreover, the availability of a postseizure hearing may be no recompense for losses caused by erroneous seizure. Given the congested civil dockets in federal courts, a claimant may not receive an adversary hearing until many months after the seizure. And even if the ultimate judicial decision is that the claimant was an innocent owner, or that the Government lacked probable cause, this determination, coming months after the seizure, “would not cure the temporary deprivation that an earlier hearing might have prevented.” Doehr, 501 U.S., at 15.92 The taxpayer or EI claimant faced with a demand for payment by the federal government also deserves a hearing before her property is taken away, for the subsequent hearing allowed for by statute into the amount owed is of little benefit to an individual deprived of all income or savings for months on end. Nor is a hearing into liability of much benefit where the validity of the garnishment itself is 1616 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 at issue—for instance, where the wrong party’s assets were seized or where another party has an interest in the assets (such as the joint owner of a garnished bank account). CONCLUSION The minister of national revenue and the Employment Insurance Commission act on the assumption that they have a discretionary power to seize any and all amounts of money payable to a delinquent taxpayer or an EI claimant ordered to reimburse the commission. The assessment of the amount owing is a solely administrative determination that forms the full legal basis for their attachment of debts, without the intervention of the courts. It is only if the garnishments require judicial process that the statutory exemptions from attachment under provincial law would clearly protect debts such as wages or social assistance benefits from seizure by the federal Crown. Both the EI Act and the ITA have provisions that allow the commission and the minister to certify amounts owing to them and to register such certification in Federal Court, giving them the force and effect of a judgment and allowing for execution. Some ambiguity exists in the statute, however, because certification and registration could be read as the condition precedent for a garnishment proceeding, even though the courts have held that they are separate and unrelated procedures. When the garnishment provisions were added to the ITA and the Unemployment Insurance Act, the Exchequer Court had jurisdiction over collection of federal revenue without any power to order garnishment of debts. Prejudgment attachment has also been held to be impossible under the Federal Court Act. It is therefore logical to conclude that Parliament added this special statutory provision simply to allow the commission and the minister to obtain a garnishment order in the absence of a trial judgment. As the Supreme Court of Canada recently pointed out, prejudgment seizures are “an exception to the ordinary rules of law”93 and require strict compliance with all procedural rules. Statutes should also not be read to oust the jurisdiction of a superior court without clear and unambiguous language. On statutory interpretation principles, therefore, the EI Act and the ITA should be read as preserving the Federal Court’s jurisdiction over collection of debts owing to the Crown and not as having granted the executive a separate and purely administrative garnishment power. In addition, at common law, a party has a right to a hearing (the audi alteram partem rule). Similarly, section 1 of the Canadian Bill of Rights provides that a person shall not be deprived of property except by due process of law, and section 2 provides that no federal law shall be construed so as to deprive a person of a hearing to determine his rights and obligations. The case law is divided as to whether the right to a hearing extends to execution under a taxing statute or is satisfied by the right to appeal the assessment establishing liability. However, since execution may take place while the assessment is under appeal or may be illegal on grounds unrelated to the validity of the assessment, the the legality of administrative garnishments ■ 1617 right to possession of one’s property free from attachment is distinct from the issue of liability and should give rise to a separate right to a hearing. Allowing for execution of a tax or EI debt by means of a purely administrative garnishment, without notice or a hearing, would violate the audi alteram partem rule; such an interpretation should not be permitted without clear statutory language. Applied to the ITA and the EI Act, the requirement of due process under the Bill of Rights before property is taken and the requirement of a hearing into a party’s rights entitle taxpayers or EI claimants to a hearing before they can be deprived of money owing to them. The statutes must be read as consistent with the Bill of Rights if possible. If the statutes are held to allow garnishment without a hearing, however, the relevant provisions are inoperative owing to their conflict with the Bill of Rights, as well as the protection against unreasonable search or seizure guaranteed by section 8 of the Charter. American appellate case law has consistently held that where a power exists to seize all of a person’s income and assets (as is provided under the EI Act and the ITA), the severity of consequences for the individuals concerned is sufficient to engage the right to due process, which mirrors the procedural content of fundamental justice guaranteed by section 2(e) of the Bill of Rights. In addition, the right to be protected against unreasonable search or seizure under section 8 of the Charter has been held fundamentally to protect against invasions of privacy that do not enjoy prior judicial authorization. While the Charter has not generally been held to apply to economic interests, the commission’s and the minister’s interpretation of the statutes would allow them to garnish all of a claimant’s or taxpayer’s income and all of her savings without any hearing. Such government action would put the section 8 right at risk because privacy would have very little meaning in our society for a person effectively without financial resources. To deprive a person of all her wages and savings without prior judicial authorization is a violation of her rights, and if this is the legislation’s effect, it is unconstitutional. The registration in Federal Court of the amount of taxes or EI benefits owing should therefore be read as the condition precedent to a judicial garnishment, which must respect the rules of the court. The result of such registration would be that provincial exemptions from seizure would clearly apply to protect the most vulnerable debtors and that those individuals would retain the right to apply to the court to set the seizures aside. NOTE S 1 (1701), 12 Mod. 669, at 687-88 (KB). 2 See David Kendall, “Impostor ‘Borrows’ Woman’s Papers: Haunted by SIN; It’s Driving Kathy Ricci Crazy,” Toronto Sun, November 4, 1992, 34; and David Kendall, “Now Kathy’s Really Riled at RevCan,” Toronto Sun, August 5, 1993, 44. 3 United States, General Accounting Office, Tax Administration: Extent and Causes of Erroneous Levies, GAO/GGD-91-9 (Washington, DC: General Accounting Office, December 1990), 6. 1618 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 The IRS has the power unilaterally to enforce a statutory lien against the assets of any taxpayer who fails to comply with a notice requesting payment: section 6321 of the Internal Revenue Code of 1986, as amended (herein referred to as “IRC”). However, since 1998, the taxpayer has a right to 30 days’ prior notice, during which time she may file an administrative appeal that further suspends collection: IRC sections 6320 and 6330. 4 Rule 452 of the Federal Court Rules, 1998, PC 1998-125, SOR/98-106 (1998) vol. 132, no. 4 Canada Gazette Part II 424-680, clearly imports the provincial exemptions from seizure with respect to any action by the Crown. In actions brought in the provincial courts, the same rule presumably applies by virtue of the Crown Liability and Proceedings Act, RSC 1985, c. C-50, as amended, section 27, which provides that “the regulations, the rules of and procedure of the court in which proceedings are taken apply in those proceedings.” 5 The federal Crown has been held not to be subject to provincial statutes exempting pension benefits from seizure when relying on an allegedly extrajudicial collection process under subsection 224(1) of the Income Tax Act, RSC 1985, c. 1 (5th Supp.), as amended (herein referred to as “ITA”): Sun Life Assurance v. MNR, [1992] 2 CTC 315 (Sask. QB); and Marcoux v. AG of Canada, 2000 DTC 6010 (FCTD), aff ’d. 2001 DTC 5233 (FCA). Section 225 of the ITA grants a power to seize goods and chattels, also seemingly without authorization by the court, but subsection 225(5) expressly imports the exemptions from seizure applicable under provincial law. 6 Wages Act, RSO 1990, c. W.1, as amended, section 7(2). 7 Family Benefits Act, RSO 1990, c. F.2, as amended, section 5(1)(b); Ontario Disability Support Program Act, 1997, SO 1997, c. 25, as amended, schedule B, section 18; Ontario Works Act, 1997, SO 1997, c. 25, as amended, schedule A, section 23; Workplace Safety and Insurance Act, 1997, SO 1997, c. 16, as amended, schedule A, section 64; and Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended, section 20. 8 Federal Court Rules, 1998, supra note 3, at rule 399. 9 Employment Insurance Act, SC 1996, c. 23, as amended (herein referred to as “the EI Act”). 10 Supra note 5. 11 ITA subsection 224(1); EI Act section 126(4), with respect to the garnishment of an amount owing by a claimant on account of disentitlement. The application of ITA section 224 is imported by EI Act section 99 for the garnishment of premiums owing by employers, and by section 149 where a claimant must repay benefits because her income for the taxation year exceeded the allowable maximum yearly insurable earnings. 12 Woods Gordon Management Consultants, Review of Revenue Canada Taxation: Summary Report (Ottawa: Supply and Services, 1985), 242. 13 The Superintendent of Bankruptcy’s payment guidelines for cases involving debtor insolvency are referred to as a useful guideline: Treasury Board of Canada Secretariat, Comptrollership Manual (Ottawa: Treasury Board, Office of the Comptroller General) (looseleaf ), chapter 3-5, “Policy on Receivables Management,” appendix C, “Procedural Requirements for Collections,” paragraph C.3. Formerly, attachments were limited, in principle, to amounts in excess of a set poverty line: Treasury Board of Canada, Guide on Financial Administration for Departments and Agencies of the Government of Canada, 2d ed. (Ottawa: Treasury Board, Administrative Policy Branch, 1985), chapter 10 (cancelled in October 1996). 14 Information Circular 98-1R, “Collection Policies,” September 15, 2000, paragraph 6. 15 The Queen v. Lambert, [1974] 1 FC 693, at 705 (TD); see also the decision of Walsh J in Prevost v. Employment etc. Commn. (1980), 36 CBR (NS) 103, at 109 (FCTD). (The statute may itself now support this interpretation since the restrictions on collection set out by paragraphs 225.1(1)(b) and (c) list the subsection 224(1) garnishment power separately from certification and registration under section 223.) the legality of administrative garnishments ■ 1619 16 Sorenson v. MNR, 82 DTC 6246 (FCA). 17 British Columbia (Deputy Sheriff ) v. Canada (1992), 90 DLR (4th) 680, at 691 (BCCA). 18 Province of Alberta Treasury Branches et al. v. The Queen et al., 94 DTC 6650, at 6651 (Alta. CA). 19 Royal Bank of Canada v. The Queen, 84 DTC 6439, at 6445 (FCTD). See also Lloyd’s Bank Canada v. International Warranty Co. (1989), 60 DLR (4th) 272, at 277 (Alta. CA): “a form of extra-judicial attachment.” 20 Joe Markevich v. The Queen, 2001 DTC 5305, at paragraph 66 (FCA); leave to appeal to the Supreme Court of Canada granted [2001] SCCA no. 371. 21 Qureshi v. MNR, 79 DTC 5161, at 5162 (FCTD). 22 The Federal Court of Appeal has held that section 29 of the Federal Court Act precludes any challenge to collection proceedings before the Federal Court by way of application because the ITA expressly provides for appeals from assessments to the Tax Court of Canada: Optical Recording Corp. v. Canada, [1991] 1 FC 309 (CA). However, recent cases take a broader view of the Federal Court’s jurisdiction: Barrons v. The Queen, 98 DTC 6070 (FCTD). In particular, several cases correctly hold that the illegality of collection proceedings cannot be shielded by the Tax Court’s jurisdiction over appeals from the assessment giving rise to the collection proceedings: Albion Transportation Research Corp. v. Canada, [1998] 1 FC 78 (TD); and McPhail v. Minister of National Revenue (1994), 75 FTR 28. See also Canada (Customs and Revenue) v. Aboriginal Federated Alliance Inc. (2002), 214 DLR (4th) 707 (Alta. CA), at paragraph 18. For statutes that do not levy taxes, the Federal Court of Appeal has confirmed that the court may order a stay in the execution of a non-judicial decision that is filed in the registry of the Federal Court and that by statute otherwise acquires the same executory force as a judgment: National Bank of Canada v. Granda, [1984] 2 FC 249, at 254 (CA). 23 Phillips v. Commissioner, 283 US 589, at 596 (1931). 24 Bull v. United States, 295 US 247, at 259-60 (1935) (emphasis added). 25 Prevost, supra note 15, at 109 (emphasis added). 26 United States v. James Daniel Good Real Property, 510 US 43, at 51-52 (1993) (emphasis added; parentheses in the original). 27 United Kingdom, Committee on Enforcement Powers of the Revenue Department, Report, vol. 2 (London: Her Majesty’s Stationery Office, 1983), 482. 28 Woods Gordon Management Consultants, “Review of Revenue Canada Taxation: Detailed Report,” September 1985, 21.33. (A copy of the full report, which is unpublished, was made available to me by the library of the CCRA’s Montreal office in the fall of 1993.) 29 An Act To Amend The Income War Tax Act, 1917, SC 1923, c. 52, sections 26 and 28. 30 Unemployment Insurance Act, SC 1955, c. 50, sections 104 and 105. 31 Exchequer Court Act, RSC 1906, c. 140, section 31; RSC 1952, c. 98, section 29. 32 The only reported garnishment in the court was actually for an amount certified and registered under the Income Tax Act, RSC 1952, c. 148, subsection 119(1), but it relied on section 54 of the Exchequer Court Act, RSC 1952, c. 98 (analogous to section 56 of the Federal Court Act, RSC 1985, c. F-7, as amended), which allowed writs “of the same tenor and effect” as those issued out of any of the courts of the province where judgment was executed: MNR v. Canadian Javelin Ltd. and Wabush Mines, 65 DTC 5076 (Ex. Ct.). 33 Standal Estate v. Swecan Int’l. (1989), 99 NR 1, at 11 (FCA); Sea Pics Adventures (1995) Inc. v. Astrolabe Marine Inc. et al. (1997), 125 FTR 251. 34 P. St. J. Langan, Maxwell on the Interpretation of Statutes, 12th ed. (London: Sweet & Maxwell, 1969), 153. The Federal Court is a superior court of record pursuant to the Federal Court Act, supra note 32, at section 3. 1620 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 35 Maxwell on the Interpretation of Statutes, supra note 34, at 159. 36 44 Halsbury’s Laws of England, 4th ed., paragraph 1464. 37 Attachment was not one of the writs of execution available at common law since it could be enforced only against property in the hands of the judgment debtor: ibid., vol. 17, at paragraph 401. Garnishment in particular was created by statute in the mid-19th century and only later became available as a prejudgment remedy: ibid., at paragraph 525, n. 1; and Ontario Law Reform Commission, Report on the Enforcement of Judgment Debts and Related Matters (Toronto: Ministry of the Attorney General, 1983), part IV, at 27-32. 38 71 US (4 Wall.) 237, at 243-44 (1866). Similarly, the Supreme Court of Canada recently pointed out that “seizure before judgment is a draconian procedure and is an exception to the ordinary rules of law”: Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, at paragraph 77, per Binnie J, quoting Thériault v. Succession de Rémi Thériault, [1977] CS 1120, at 1121, per Gonthier J. 39 Unemployment Insurance Act, RSC 1985, c. U-2, section 79; the corresponding provision is EI Act section 114. On this analysis, by analogy a taxpayer’s appeal to the Tax Court of Canada would fulfill the same purpose under ITA section 169. 40 Prevost, supra note 15, at 109. 41 An Act Respecting the Ministère du Revenu, RSQ, c. M-31, section 13. 42 RSQ, c. C-25, article 482. 43 Taxation Act, RSQ, c. I-3, sections 1057 and 1066; replaced by An Act Respecting the Ministère du Revenu, supra note 41, at sections 93.1.1 to 93.1.25. 44 Lessard-Poulin v. Québec (Sous-Ministre du Revenu), [1991] RJQ 319, at 323-24 (CA), adopting the reasons in Québec (Sous-Ministre du Revenu) v. Jules Beauchamp Inc., [1990] RDFQ (CS) 57, at 63-64. Note that under Quebec tax statutes, as under ITA subsection 152(8), an assessment is presumed valid barring appeal: Taxation Act, supra note 43, at section 1014(1) and An Act Respecting the Ministère du Revenu, supra note 41, at section 95. 45 Beaudoin v. Ministère du Revenu et autres, [1976] CA 162, at 163. 46 Québec (Sous-Ministre du Revenu) v. Guay, [1993] RDFQ 115, at 118 and 119 (CS) (my translation). 47 The Court of Appeal suggested in Lessard-Poulin, supra note 44, at 324, that the audi alteram partem rule applied only to final judgments. However, a more recent case held that the right to a hearing guaranteed by section 23 of the Quebec Charter of Human Rights and Freedoms, RSQ, c. C-12, is broad enough to apply to all steps in decision making, even provisional measures: Sous-Ministre du Revenu du Québec v. Belliard, [1996] RDJ 212, at 221 (CS). 48 SC 1960, c. 44. 49 Two other decisions dismissed challenges to ITA sections 223 and 224, respectively, under the Canadian Bill of Rights, without reasons: Hutterian Brethren Church of Morinville v. Royal Bank of Canada, 79 DTC 5285 (Alta. SCAD); and Re McLeod and Minister of National Revenue (1983), 146 DLR (3d) 561 (FCTD). 50 Lambert v. The Queen, [1975] FC 548 (TD), aff ’d. on other grounds [1977] 1 FC 199 (CA). 51 Ibid., at 553-54 (TD). 52 A similar conclusion was reached by Walsh J in Charron v. Dufour, [1984] 2 FC 964, at 971 (TD), where he held that a garnishment following registration of a certificate under ITA section 223 did not violate the prohibition against unreasonable search or seizure under section 8 of the Canadian Charter of Rights and Freedoms, because “the petitioner has every right to oppose the seizure before it is made definitive.” Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982, being schedule B of the Canada Act 1982 (UK), 1982, c. 11 (herein referred to as “the Charter”). the legality of administrative garnishments ■ 1621 53 Lambert, supra note 15. 54 Singh et al. v. MEI, [1985] 1 SCR 177. 55 See supra note 52. 56 Supra note 54, at 228-29. 57 Ibid., at 229. 58 395 US 337 (1969). 59 Ibid., at 340-42. 60 Fuentes v. Shevin, 407 US 67, at 80-81 (1972). Three years later, in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 US 601 (1975), the court extended the principle to the garnishment of a large corporate bank account issued by an officer of the court or a court clerk, holding, at 606, that this attachment of debts other than wages was also unconstitutional because it was “without notice or opportunity for an early hearing and without participation by a judicial officer.” 61 Henri Brun, “Le recouvrement de l’impôt et les droits de la personne” (1983) vol. 24, no. 3 Cahiers de Droit 457-75, at 464 (my translation). 62 British Columbia (Deputy Sheriff ), supra note 17, at 692 and 693. 63 Ibid., at 699 and 701 (emphasis added). Lambert J held in a private law context that the principle of fairness demands reasonable notice because of the “possibility that a person might suffer serious harm from an unanticipated seizure that was not necessary”: Waldron v. Royal Bank of Canada (1991), 78 DLR (4th) 1, at 5 (BCCA). 64 Employment and Immigration Canada, Insurance Services Policy Manual (Ottawa: Employment and Immigration Canada, 1989), part I, subject 30, appendix B, “Overpayments.” 65 Re Becker and The Queen (1983), 148 DLR (3d) 539, at 546 (Alta. CA). This decision also predates the Supreme Court’s first consideration of the section 8 right in Hunter v. Southam Inc., [1984] 2 SCR 145. 66 TransGas Ltd. v. Mid-Plains Contractors Ltd. (1993), 101 DLR (4th) 238, at 254 (Sask. CA), aff ’d. on other grounds [1994] 3 SCR 753. 67 Supra note 65. 68 389 US 347, at 351 (1967). 69 Hunter v. Southam, supra note 65, at 160. 70 These examples actually concern not third-party demands but a statutory setoff effected pursuant to EI Act section 19, which allows the commission to deduct overpayments and penalties against the EI benefits owing to a claimant. (See also ITA section 224.1.) It is beyond the scope of this paper to discuss whether setoff without judicial authorization is constitutional; however, see Greenwood v. Canada, [2001] BCJ no. 1175 (SC). At common law, setoff is traditionally a remedy granted by the courts when pleaded as a defence to a demand for payment of a debt (see Courts of Justice Act, RSO 1990, c. C.43, as amended, section 111) and not a creditor’s freestanding right. Article 1673 of the Civil Code of Quebec allows for compensation between reciprocal debts “by operation of law” alone, but only if the debts “are certain, liquid and exigible”; it is a judgment that makes a debt certain and executory. In any case, these examples demonstrate the drastic consequences that an individual can suffer when the government has the power to unilaterally decide not just how much the individual owes, but how payment is to be collected. 71 Personal communication to the author by Ruth Carey, former director of the HIV/AIDS Legal Clinic, Toronto, May 23, 2002. 72 Personal communication to the author by Gayle Broad, community legal worker, Algoma Community Legal Clinic, Sault Ste. Marie, May 29, 2002. 73 Sniadach, supra note 58; Fuentes, supra note 60; and North Georgia Finishing, Inc., ibid. 1622 ■ canadian tax journal / revue fiscale canadienne (2002) vol. 50, n o 5 74 Hunter v. Southam, supra note 65, at 161. 75 Ibid., at 161-62. 76 [1990] 1 SCR 627. 77 Ibid., at 636. 78 Ibid., at 648. 79 TransGas, supra note 66 (Sask. CA). 80 Ibid., at 255. In addition, the Court of Appeal held in TransGas that any alleged seizure was reasonable in this case because the litigant was the third party and had been able to seek an independent adjudication on competing claims between the government and the taxpayer’s other creditors by paying the money into court. This reasoning ignores the fact that the ITA itself makes no provision for such payment into court and, on the contrary, makes any person who fails to comply with a garnishment personally liable for the lesser of the amount released to his creditor and the value of the third-party notice: ITA subsection 224(4.1). (EI Act section 126(7) similarly provides, “An amount not paid as required by a notice under subsection (4) or (5) is a debt due to Her Majesty.”) 81 Lessard-Poulin, supra note 44, at 323. Another case suggested that no constitutional issue arose from registration of such an order because it was not “a judgment which determines rights; it is nothing but a means for the forced collection of tax, pending a subsequent decision on whether the amount was owing”: Jules Beauchamp Inc., supra note 44, at 65 (my translation). It would presumably be of little comfort to the taxpayer deprived of assets to learn that a final determination of his rights was still to come. 82 Fuentes, supra note 60, at 90-92 (emphasis added). See also Brennan J’s concurring judgment in Laing v. United States, 423 US 161, at 187 (1976), in which he suggested that under certain circumstances, governmental seizures of tax owing under jeopardy assessments could meet constitutional due process requirements even without a prior hearing. 83 429 US 338, at 358 (1977). 84 Supra note 26. 85 Ibid., at 62. 86 Ibid., at 53. 87 Ibid., at 55. 88 Ibid. 89 Ibid. 90 Ibid., at 57-59. Note, however, that in Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663, at 679 (1974), the court held that the government could seize a yacht subject to civil forfeiture without prior notice or hearing because the yacht “could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given.” 91 Fuentes, supra note 60, at 80-81 (parentheses in the original; emphasis added). 92 Supra note 26, at 55-56 (emphasis added). 93 Galerie d’Art du Petit Champlain inc., supra note 38, at paragraph 77.