Softwood Lumber Products Export Charge Act, 2006 (S.C. 2006, c. 13)

Collection

Marginal note:Definitions

• 85 (1) The following definitions apply in this section.

  action

  action means an action to collect a charge debt of a person and includes a proceeding in a court and anything done by the Minister under any of sections 88 to 93. (action)

  charge debt

  charge debt means any amount payable by a person under this Act. (dette fiscale)

  legal representative

  legal representative of a person means a trustee in bankruptcy, an assignee, a liquidator, a curator, a receiver of any kind, a trustee, an heir, an administrator, an executor, a liquidator of a succession, a committee, or any other similar person, administering, winding up, controlling or otherwise dealing in a representative or fiduciary capacity with any property, business, commercial activity or estate that belongs or belonged to, or that is or was held for the benefit of, the person or the person’s estate. (représentant légal)

• Marginal note:Debts to Her Majesty

  (2) A charge debt is a debt due to Her Majesty in right of Canada and is recoverable as such in the Federal Court or any other court of competent jurisdiction or in any other manner provided under this Act.

• Marginal note:Court proceedings

  (3) The Minister may not commence a proceeding in a court to collect a charge debt of a person in respect of an amount that may be assessed under this Act, unless when the proceeding is commenced the person has been or may be assessed for that amount.

• Marginal note:No actions after limitation period

  (4) The Minister may not commence an action to collect a charge debt after the end of the limitation period for the collection of the charge debt.

• Marginal note:Limitation period

  (5) The limitation period for the collection of a charge debt of a person

  • (a) begins

    • (i) if a notice of assessment in respect of the charge debt is mailed to the person, or a notice referred to in subsection 94(1) in respect of the charge debt is mailed to or served on the person, on the last day on which one of those notices is mailed or served, and

    • (ii) if no notice referred to in subparagraph (i) in respect of the charge debt was mailed or served, on the day on which the Minister can commence an action to collect that charge debt; and

  • (b) ends, subject to subsection (9), on the day that is 10 years after the day on which it begins.

• Marginal note:Limitation period restarted

  (6) The limitation period described in subsection (5) for the collection of a charge debt of a person restarts — and ends, subject to subsection (9), on the day that is 10 years after the day on which it restarts — on any day, before it would otherwise end, on which

  • (a) the person acknowledges the charge debt in accordance with subsection (7);

  • (b) the Minister commences an action to collect the charge debt; or

  • (c) the Minister, under subsection 89(7) or 95(4), assesses another person in respect of the charge debt.

• Marginal note:Acknowledgement of charge debts

  (7) A person acknowledges a charge debt if the person

  • (a) promises, in writing, to pay the charge debt;

  • (b) makes a written acknowledgement of the charge debt, whether or not a promise to pay can be inferred from the acknowledgement and whether or not it contains a refusal to pay; or

  • (c) makes a payment, including a purported payment by way of a negotiable instrument that is dishonoured, on account of the charge debt.

• Marginal note:Agent or legal representative

  (8) For the purposes of this section, an acknowledgement made by a person’s agent or mandatary or legal representative has the same effect as if it were made by the person.

• Marginal note:Extension of limitation period

  (9) In computing the day on which a limitation period ends, there shall be added the number of days on which one or more of the following is the case:

  • (a) the Minister has accepted and holds security in lieu of payment of the charge debt;

  • (b) if the person was resident in Canada on the applicable date described in paragraph (5)(a) in respect of the charge debt, the person is non-resident; or

  • (c) an action that the Minister may otherwise take in respect of the charge debt is restricted or not permitted under any provision of the Bankruptcy and Insolvency Act, of the Companies’ Creditors Arrangement Act or of the Farm Debt Mediation Act.

• Marginal note:Assessment before collection

  (10) The Minister may not take any collection action under sections 88 to 93 in respect of any amount payable by a person that may be assessed under this Act, other than interest under section 34 or penalty under section 64 or 65, unless the amount has been assessed.

• Marginal note:Interest on judgments

  (11) If a judgment is obtained for any amount payable under this Act, including a certificate registered under section 88, the provisions of this Act by which interest is payable for a failure to pay an amount apply, with any modifications that the circumstances require, to the failure to pay the judgment debt, and the interest is recoverable in the same manner as the judgment debt.

• Marginal note:Litigation costs

  (12) If an amount is payable by a person to Her Majesty in right of Canada because of an order, judgment or award of a court in respect of the costs of litigation relating to a matter to which this Act applies, sections 88 to 94 apply to the amount as if it were payable under this Act.

Marginal note:Collection restrictions

• 86 (1) If a person is liable for the payment of an amount under this Act, the Minister shall not, for the purpose of collecting the amount, take any of the following actions until the end of 90 days after the date of a notice of assessment issued under this Act in respect of the amount:

  • (a) commence legal proceedings in a court;

  • (b) certify the amount under section 88;

  • (c) require a person to make a payment under subsection 89(1); or

  • (d) require an institution or a person to make a payment under subsection 89(2).

• Marginal note:No action after service of notice of objection

  (2) If a person has served a notice of objection under this Act to an assessment of an amount payable under this Act, the Minister shall not, for the purpose of collecting the amount in controversy, take any of the actions described in subsection (1) until the end of 90 days after the date of the notice to the person that the Minister has confirmed or varied the assessment.

• Marginal note:No action after appealing to Tax Court of Canada

  (3) If a person has appealed to the Tax Court of Canada from an assessment of an amount payable under this Act, the Minister shall not, for the purpose of collecting the amount in controversy, take any of the actions described in subsection (1) before the day on which a copy of the decision of the Court is mailed to the person or the day on which the person discontinues the appeal, whichever is the earlier.

• Marginal note:No action pending determination by court

  (4) If a person has agreed under subsection 62(1) that a question should be determined by the Tax Court of Canada, or if a person is served with a copy of an application made under subsection 63(1) to that Court for the determination of a question, the Minister shall not take any of the actions described in subsection (1) for the purpose of collecting that part of an amount assessed, the liability for payment of which will be affected by the determination of the question, before the day on which the question is determined by the Court.

• Marginal note:Action after judgment

  (5) Despite any other provision of this section, if a person has served a notice of objection under this Act to an assessment or has appealed to the Tax Court of Canada from an assessment and agrees in writing with the Minister to delay proceedings on the objection or appeal, as the case may be, until judgment has been given in another action before the Tax Court of Canada, the Federal Court of Appeal or the Supreme Court of Canada in which the issue is the same or substantially the same as that raised in the objection or appeal of the person, the Minister may take any of the actions described in subsection (1) for the purpose of collecting the amount assessed, or a part of it, determined in a manner consistent with the judgment of the Court in the other action at any time after the Minister notifies the person in writing that the judgment has been given by the Court in the other action.

Marginal note:Authorization to proceed without delay

• 87 (1) Despite section 86, if, on ex parte application by the Minister, a judge is satisfied that there are reasonable grounds to believe that the collection of all or any part of an amount assessed in respect of a person would be jeopardized by a delay in the collection of the amount, the judge shall, on any terms that the judge considers reasonable in the circumstances, authorize the Minister to take without delay any of the actions described in subsection 86(1) with respect to the amount.

• Marginal note:Notice of assessment not sent

  (2) An authorization under subsection (1) in respect of an amount assessed may be granted by a judge even if a notice of assessment in respect of that amount has not been sent to the person at or before the time the application is made if the judge is satisfied that the receipt of the notice of assessment by the person would likely further jeopardize the collection of the amount, and for the purposes of sections 85, 88 to 90, 92 and 93, the amount in respect of which an authorization is so granted is deemed to be an amount payable under this Act.

• Marginal note:Affidavits

  (3) Statements contained in an affidavit of a person filed in the context of an application under this section may be based on the belief of the person.

• Marginal note:Service of authorization and of notice of assessment

  (4) An authorization granted under this section in respect of a person shall be served by the Minister on the person within 72 hours after it is granted unless the judge orders the authorization to be served at some other time specified in the authorization. If a notice of assessment has not been sent to the person at or before the time of the application, the notice of assessment shall be served together with the authorization.

• Marginal note:How service effected

  (5) For the purposes of subsection (4), service on a person shall be effected by

  • (a) personal service on the person; or

  • (b) service in accordance with the directions, if any, of a judge.

• Marginal note:Application to judge for direction

  (6) If service on a person cannot reasonably be effected as and when required under this section, the Minister may, as soon as practicable, apply to a judge for further direction.

• Marginal note:Review of authorization

  (7) If a judge of a court has granted an authorization under this section in respect of a person, the person may, on six clear days notice to the Deputy Attorney General of Canada, apply to a judge of the court to review the authorization.

• Marginal note:Limitation period for review application

  (8) An application under subsection (7) shall be made

  • (a) within 30 days after the authorization was served on the person in accordance with this section; or

  • (b) within any further time that a judge may allow, on being satisfied that the application was made as soon as practicable.

• Marginal note:Hearing in camera

  (9) An application under subsection (7) may, on the application of the person, be heard in camera, if the person establishes to the satisfaction of the judge that the circumstances of the case justify in camera proceedings.

• Marginal note:Disposition of application

  (10) On an application under subsection (7), the judge shall determine the question summarily and may confirm, set aside or vary the authorization and make any other order that the judge considers appropriate.

• Marginal note:Directions

  (11) If any question arises as to the course to be followed in connection with anything done or being done under this section and there is no direction in this section with respect to it, a judge may give any direction that the judge considers appropriate.

• Marginal note:No appeal from review order

  (12) No appeal lies from an order of a judge made under subsection (10).

Marginal note:Certificates

• 88 (1) Any amount payable by a person (in this section referred to as the “debtor”) under this Act that has not been paid as and when required under this Act may be certified by the Minister as an amount payable by the debtor.

• Marginal note:Registration in court

  (2) On production to the Federal Court, a certificate in respect of a debtor shall be registered in the Court and when so registered has the same effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in the Court against the debtor for a debt in the amount certified plus interest on the amount as provided under this Act to the day of payment and, for the purposes of those proceedings, the certificate is deemed to be a judgment of the Court against the debtor for a debt due to Her Majesty in right of Canada and enforceable as such.

• Marginal note:Costs

  (3) All reasonable costs and charges paid or incurred for the registration in the Federal Court of a certificate or in respect of any proceedings taken to collect the amount certified are recoverable in the same manner as if they had been included in the amount certified in the certificate when it was registered.

• Marginal note:Charge on property

  (4) A document issued by the Federal Court evidencing a registered certificate in respect of a debtor, a writ of that Court issued pursuant to the certificate or any notification of the document or writ (which document, writ or notification is in this section referred to as a “memorial”) may be filed, registered or otherwise recorded for the purpose of creating a charge, lien or priority on, or a binding interest in, property in a province, or any interest in such property, held by the debtor, in the same manner as a document evidencing

  • (a) a judgment of the superior court of the province against a person for a debt owing by the person, or

  • (b) an amount payable or required to be remitted by a person in the province in respect of a debt owing to Her Majesty in right of the province

  may be filed, registered or otherwise recorded in accordance with the law of the province to create a charge, lien or priority on, or a binding interest in, the property or interest.

• Marginal note:Creation of charge

  (5) If a memorial has been filed, registered or otherwise recorded under subsection (4),

  • (a) a charge, lien or priority is created on, or a binding interest is created in, property in the province, or any interest in such property, held by the debtor, or

  • (b) such property or interest in the property is otherwise bound,

  in the same manner and to the same extent as if the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b), and the charge, lien, priority or binding interest created is subordinate to any charge, lien, priority or binding interest in respect of which all steps necessary to make it effective against other creditors were taken before the time the memorial was filed, registered or otherwise recorded.

• Marginal note:Proceedings in respect of memorial

  (6) If a memorial is filed, registered or otherwise recorded in a province under subsection (4), proceedings may be taken in the province in respect of the memorial, including proceedings

  • (a) to enforce payment of the amount evidenced by the memorial, interest on the amount and all costs and charges paid or incurred in respect of

    • (i) the filing, registration or other recording of the memorial, and

    • (ii) proceedings taken to collect the amount,

  • (b) to renew or otherwise prolong the effectiveness of the filing, registration or other recording of the memorial,

  • (c) to cancel or withdraw the memorial wholly or in respect of any of the property or interests affected by the memorial, or

  • (d) to postpone the effectiveness of the filing, registration or other recording of the memorial in favour of any right, charge, lien or priority that has been or is intended to be filed, registered or otherwise recorded in respect of any property or interest affected by the memorial,

  in the same manner and to the same extent as if the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b), except that, if in any such proceeding or as a condition precedent to any such proceeding, any order, consent or ruling is required under the law of the province to be made or given by the superior court of the province or by a judge or official of the court, a similar order, consent or ruling may be made or given by the Federal Court or by a judge or official of the Federal Court and, when so made or given, has the same effect for the purposes of the proceeding as if it were made or given by the superior court of the province or by a judge or official of the court.

• Marginal note:Presentation of documents

  (7) If

  • (a) a memorial is presented for filing, registration or other recording under subsection (4), or a document relating to the memorial is presented for filing, registration or other recording for the purpose of any proceeding described in subsection (6), to any official of a property registry system of a province, or

  • (b) access is sought to any person, place or thing in a province to make the filing, registration or other recording,

  the memorial or document shall be accepted for filing, registration or other recording or the access shall be granted, as the case may be, in the same manner and to the same extent as if the memorial or document relating to the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b) for the purpose of a similar proceeding, except that, if the memorial or document is issued by the Federal Court or signed or certified by a judge or official of the Court, any affidavit, declaration or other evidence required under the law of the province to be provided with or to accompany the memorial or document in the proceedings is deemed to have been provided with or to have accompanied the memorial or document as so required.

• Marginal note:Sale, etc.

  (8) Despite any other law of Canada or law of a province, a sheriff or other person shall not, without the written consent of the Minister, sell or otherwise dispose of any property or publish any notice or otherwise advertise in respect of any sale or other disposition of any property pursuant to any process issued or charge, lien, priority or binding interest created in any proceeding to collect an amount certified in a certificate made under subsection (1), interest on the amount or costs, but if that consent is subsequently given, any property that would have been affected by such a process, charge, lien, priority or binding interest if the Minister’s consent had been given at the time the process was issued or the charge, lien, priority or binding interest was created, as the case may be, shall be bound, seized, attached, charged or otherwise affected as it would be if that consent had been given at the time the process was issued or the charge, lien, priority or binding interest was created, as the case may be.

• Marginal note:Completion of notices, etc.

  (9) If information required to be set out by any sheriff or other person in a minute, notice or document required to be completed for any purpose cannot, because of subsection (8), be so set out without the written consent of the Minister, the sheriff or other person shall complete the minute, notice or document to the extent possible without that information and, when that consent of the Minister is given, a further minute, notice or document setting out all the information shall be completed for the same purpose, and the sheriff or other person, having complied with this subsection, is deemed to have complied with the Act, regulation or rule requiring the information to be set out in the minute, notice or document.

• Marginal note:Application for an order

  (10) A sheriff or other person who is unable, because of subsection (8) or (9), to comply with any law or rule of court is bound by any order made by a judge of the Federal Court, on an ex parte application by the Minister, for the purpose of giving effect to the proceeding, charge, lien, priority or binding interest.

• Marginal note:Deemed security

  (11) If a charge, lien, priority or binding interest created under subsection (5) by filing, registering or otherwise recording a memorial under subsection (4) is registered in accordance with subsection 87(1) of the Bankruptcy and Insolvency Act, it is deemed

  • (a) to be a claim that is secured by a security and that, subject to subsection 87(2) of that Act, ranks as a secured claim under that Act; and

  • (b) to also be a claim referred to in paragraph 86(2)(a) of that Act.

• Marginal note:Details in certificates and memorials

  (12) Despite any other law of Canada or law of the legislature of a province, in any certificate in respect of a debtor, any memorial evidencing a certificate or any writ or document issued for the purpose of collecting an amount certified, it is sufficient for all purposes

  • (a) to set out, as the amount payable by the debtor, the total of amounts payable by the debtor without setting out the separate amounts making up that total; and

  • (b) to refer to the rate of interest to be charged on the separate amounts making up the amount payable in general terms as interest at the specified rate applicable from time to time on amounts payable to the Receiver General, without indicating the specific rates of interest to be charged on each of the separate amounts or to be charged for any period.