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

Marginal note:Recovery by deduction or set-off

90 If a person is indebted to Her Majesty in right of Canada under this Act, the Minister may require the retention by way of deduction or set-off of any amount that the Minister may specify out of any amount that may be or become payable to that person by Her Majesty in right of Canada.

Marginal note:Acquisition of debtor’s property

91 For the purpose of collecting debts owed by a person to Her Majesty in right of Canada under this Act, the Minister may purchase or otherwise acquire any interest in the person’s property that the Minister is given a right to acquire in legal proceedings or under a court order or that is offered for sale or redemption, and may dispose of any interest so acquired in any manner that the Minister considers reasonable.

Marginal note:Money seized from debtor

• 92 (1) If the Minister has knowledge or suspects that a person is holding money that was seized by a police officer in the course of administering or enforcing the criminal law of Canada from another person who is liable to pay any amount under this Act (in this section referred to as the “debtor”) and that is restorable to the debtor, the Minister may in writing require the person to turn over the money otherwise restorable to the debtor, in whole or in part, to the Receiver General on account of the debtor’s liability under this Act.

• Marginal note:Receipt of Minister

  (2) A receipt issued by the Minister for money turned over is a good and sufficient discharge of the requirement to restore the money to the debtor to the extent of the amount turned over.

Marginal note:Seizure if failure to pay

• 93 (1) If a person fails to pay an amount as required under this Act, the Minister may in writing give 30 days notice to the person, addressed to their last known address, of the Minister’s intention to direct that the person’s things be seized and disposed of. If the person fails to make the payment before the expiry of the 30 days, the Minister may issue a certificate of the failure and direct that the person’s things be seized.

• Marginal note:Disposition

  (2) Things that have been seized under subsection (1) shall be kept for 10 days at the expense and risk of the owner. If the owner does not pay the amount due together with all expenses within the 10 days, the Minister may dispose of the things in a manner that the Minister considers appropriate in the circumstances.

• Marginal note:Proceeds of disposition

  (3) Any surplus resulting from a disposition, after deduction of the amount owing and all expenses, shall be paid or returned to the owner of the things seized.

• Marginal note:Exemptions from seizure

  (4) Anything of any person in default that would be exempt from seizure under a writ of execution issued by a superior court of the province in which the seizure is made is exempt from seizure under this section.

Marginal note:Person leaving Canada or defaulting

• 94 (1) If the Minister suspects that a person has left or is about to leave Canada, the Minister may, before the day otherwise fixed for payment, by notice to the person served personally or sent by registered or certified mail addressed to their last known address, demand payment of any amount for which the person is liable under this Act or would be so liable if the time for payment had arrived, and the amount shall be paid without delay despite any other provision of this Act.

• Marginal note:Seizure

  (2) If a person fails to pay an amount required under subsection (1), the Minister may direct that things of the person be seized, and subsections 93(2) to (4) apply, with any modifications that the circumstances require.

Marginal note:Liability of directors

• 95 (1) If a corporation fails to pay any amount as and when required under this Act, the directors of the corporation at the time it was required to pay the amount are jointly and severally or solidarily liable, together with the corporation, to pay it and any interest that is payable on it under this Act.

• Marginal note:Limitations

  (2) A director of a corporation is not liable unless

  • (a) a certificate for the amount of the corporation’s liability has been registered in the Federal Court under section 88 and execution for that amount has been returned unsatisfied in whole or in part;

  • (b) the corporation has commenced liquidation or dissolution proceedings or has been dissolved, and a claim for the amount of the corporation’s liability has been proved within six months after the earlier of the date of commencement of the proceedings and the date of dissolution; or

  • (c) the corporation has made an assignment or a bankruptcy order has been made against it under the Bankruptcy and Insolvency Act, and a claim for the amount of the corporation’s liability has been proved within six months after the date of the assignment or bankruptcy order.

• Marginal note:Diligence

  (3) A director of a corporation is not liable for a failure under subsection (1) if the director exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would have exercised in comparable circumstances.

• Marginal note:Assessment

  (4) The Minister may assess any person for any amount payable by the person under this section and, if the Minister sends a notice of assessment, sections 50 to 63 apply with any modifications that the circumstances require.

• Marginal note:Time limit

  (5) An assessment of any amount payable by a person who is a director of a corporation shall not be made more than two years after the person ceased to be a director of the corporation.

• Marginal note:Amount recoverable

  (6) If execution referred to in paragraph (2)(a) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution.

• Marginal note:Preference

  (7) If a director of a corporation pays an amount in respect of the corporation’s liability that is proved in liquidation, dissolution or bankruptcy proceedings, the director is entitled to any preference to which Her Majesty in right of Canada would have been entitled had the amount not been so paid, and if a certificate that relates to the amount has been registered, the director is entitled to an assignment of the certificate to the extent of the director’s payment, which assignment the Minister is empowered to make.

• Marginal note:Contribution

  (8) A director who satisfies a claim under this section is entitled to contribution from the other directors who were liable for the claim.

Marginal note:Tax liability re transfers not at arm’s length

• 96 (1) Where at any time a person has transferred property, either directly or indirectly, by means of a trust or by any other means, to

  • (a) the transferor’s spouse or common-law partner (in this section having the same meaning as in subsection 248(1) of the Income Tax Act) or an individual who has since become the transferor’s spouse or common-law partner,

  • (b) an individual who was under eighteen years of age, or

  • (c) another person with whom the transferor was not dealing at arm’s length,

  the transferee and transferor are jointly and severally or solidarily liable to pay under this Act an amount equal to the lesser of

  • (d) the amount determined by the formula

    A - B

    where

    A

    is the amount, if any, by which the fair market value of the property at that time exceeds the fair market value at that time of the consideration given by the transferee for the transfer of the property, and

    B

    is the amount, if any, by which the amount assessed the transferee under subsection 160(2) of the Income Tax Act in respect of the property exceeds the amount paid by the transferor in respect of the amount so assessed, and

  • (e) the total of all amounts each of which is

    • (i) an amount that the transferor is liable to pay under this Act for the reporting period of the transferor that includes that time or any preceding reporting period of the transferor, or

    • (ii) interest or penalty for which the transferor is liable as of that time.

  However, nothing in this subsection limits the liability of the transferor under any other provision of this Act.

• Marginal note:Fair market value of undivided interest or right

  (2) For the purpose of this section, the fair market value at any time of an undivided interest in, or for civil law an undivided right in, a property, expressed as a proportionate interest or right in that property, is, subject to subsection (5), deemed to be equal to the same proportion of the fair market value of that property at that time.

• Marginal note:Assessment

  (3) The Minister may at any time assess a transferee in respect of any amount payable by reason of this section, and sections 50 to 63 apply, with any modifications that the circumstances require.

• Marginal note:Rules applicable

  (4) If a transferor and transferee have, by reason of subsection (1), become jointly and severally or solidarily liable in respect of part or all of the liability of the transferor under this Act, the following rules apply:

  • (a) a payment by the transferee on account of the transferee’s liability shall, to the extent of the payment, discharge the joint liability; and

  • (b) a payment by the transferor on account of the transferor’s liability only discharges the transferee’s liability to the extent that the payment operates to reduce the transferor’s liability to an amount less than the amount in respect of which the transferee was, by subsection (1), made jointly and severally or solidarily liable.

• Marginal note:Transfers to spouse or common-law partner

  (5) Despite subsection (1), if at any time an individual transfers property to the individual’s spouse or common-law partner under a decree, order or judgment of a competent tribunal or under a written separation agreement and, at that time, the individual and the individual’s spouse or common-law partner were separated and living apart as a result of the breakdown of their marriage or common-law partnership (as defined in subsection 248(1) of the Income Tax Act), for the purposes of paragraph (1)(d), the fair market value at that time of the property so transferred is deemed to be nil. However, nothing in this subsection limits the liability of the individual under any other provision of this Act.

• Definition of property

  (6) In this section, property includes money.

Evidence and Procedure

Marginal note:Sending by mail

• 97 (1) For the purposes of this Act and subject to subsection (2), anything sent by registered, certified or first class mail is deemed to have been received by the person to whom it was sent on the day it was mailed.

• Marginal note:Payment

  (2) A person who is required under this Act to pay an amount is deemed not to have paid it until it is received by the Receiver General.

Marginal note:Proof of sending by mail

• 98 (1) If, under this Act, provision is made for sending by mail a request for information, a notice or a demand, an affidavit of an employee of the Agency, sworn before a commissioner or other person authorized to take affidavits, is evidence of the sending and of the request, notice or demand if the affidavit sets out that

  • (a) the employee has knowledge of the facts in the particular case;

  • (b) such a request, notice or demand was sent by registered or certified mail on a specified day to a specified person and address; and

  • (c) the employee identifies as exhibits attached to the affidavit the post office certificate of registration of the letter or a true copy of the relevant portion of the certificate and a true copy of the request, notice or demand.

• Marginal note:Proof of personal service

  (2) If, under this Act, provision is made for personal service of a request for information, a notice or a demand, an affidavit of an employee of the Agency, sworn before a commissioner or other person authorized to take affidavits, is evidence of the personal service and of the request, notice or demand if the affidavit sets out that

  • (a) the employee has knowledge of the facts in the particular case;

  • (b) such a request, notice or demand was served personally on a specified day on the person to whom it was directed; and

  • (c) the employee identifies as an exhibit attached to the affidavit a true copy of the request, notice or demand.

• Marginal note:Proof of failure to comply

  (3) If, under this Act, a person is required to make a return, an application, a statement, an answer or a certificate, an affidavit of an employee of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the employee has charge of the appropriate records and that, after a careful examination and search of the records, the employee has been unable to find in a given case that the return, application, statement, answer or certificate has been made by that person, is evidence that in that case the person did not make the return, application, statement, answer or certificate.

• Marginal note:Proof of time of compliance

  (4) If, under this Act, a person is required to make a return, an application, a statement, an answer or a certificate, an affidavit of an employee of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the employee has charge of the appropriate records and that, after a careful examination of the records, the employee has found that the return, application, statement, answer or certificate was filed or made on a particular day, is evidence that it was filed or made on that day.

• Marginal note:Proof of documents

  (5) An affidavit of an employee of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the employee has charge of the appropriate records and that a document attached to the affidavit is a document or true copy of a document made by or on behalf of the Minister or a person exercising the powers of the Minister or by or on behalf of a person, is evidence of the nature and contents of the document.

• Marginal note:Proof of no appeal

  (6) An affidavit of an employee of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the employee has charge of the appropriate records and has knowledge of the practice of the Agency and that an examination of the records shows that a notice of assessment was mailed or otherwise sent to a person on a particular day under this Act and that, after a careful examination and search of the records, the employee has been unable to find that a notice of objection or of appeal from the assessment was received within the time allowed for an objection or appeal to be filed under this Act, is evidence of the statements contained in the affidavit.

• Marginal note:Presumption

  (7) If evidence is offered under this section by an affidavit from which it appears that the person making the affidavit is an employee of the Agency, it is not necessary to prove the signature of the person or that the person is such an employee, nor is it necessary to prove the signature or official character of the person before whom the affidavit was sworn.

• Marginal note:Proof of documents

  (8) Every document purporting to have been executed under or in the course of the administration or enforcement of this Act over the name in writing of the Minister, the Commissioner or an employee authorized to exercise the powers or perform the duties of the Minister under this Act is deemed to be a document signed, made and issued by the Minister, the Commissioner or the employee, unless it has been called into question by the Minister or a person acting for the Minister or for Her Majesty in right of Canada.

• Marginal note:Mailing date

  (9) If a notice or demand that the Minister is required or authorized under this Act to send by mail to a person is mailed to the person, the day of mailing is deemed to be the date of the notice or demand.

• Marginal note:Date when assessment made

  (10) If a notice of assessment has been sent by the Minister as required under this Act, the assessment is deemed to have been made on the day of mailing of the notice of assessment.

• Marginal note:Proof of return

  (11) In a prosecution for an offence under this Act, the production of a return, an application, a certificate, a statement or an answer required under this Act, purporting to have been filed or delivered by or on behalf of the person charged with the offence or to have been made or signed by or on behalf of that person, is evidence that the return, application, certificate, statement or answer was filed or delivered by or on behalf of that person or was made or signed by or on behalf of that person.

• Marginal note:Proof of return — printouts

  (12) For the purposes of this Act, a document presented by the Minister purporting to be a printout of the information in respect of a person shall be received as evidence and, in the absence of evidence to the contrary, is proof of the return filed by the person.

• Marginal note:Proof of return — production of returns, etc.

  (13) In a proceeding under this Act, the production of a return, an application, a certificate, a statement or an answer required under this Act, purporting to have been filed, delivered, made or signed by or on behalf of a person, is evidence that the return, application, certificate, statement or answer was filed, delivered, made or signed by or on behalf of that person.

• Marginal note:Evidence

  (14) In a prosecution for an offence under this Act, an affidavit of an employee of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the employee has charge of the appropriate records and that an examination of the records shows that an amount required under this Act to be paid to the Receiver General has not been received by the Receiver General, is evidence of the statements contained in the affidavit.

• Marginal note:Probative force of copy

  (15) Any copy of an original record made under section 79 that is purported to be certified by the Minister or an employee to be a copy of the original record is evidence of the nature and content of the original record, and has the same probative force as the original record would have if it were proven in the ordinary way.