Date:
20061211
Docket:
T-601-01
Citation: 2006 FC 1481
[ENGLISH
TRANSLATION]
Ottawa, Ontario,
December 11, 2006
PRESENT: The
Honourable Madam Justice Gauthier
BETWEEN:
In the matter of the Excise
Tax Act,
- and -
In the matter of one or several
assessments raised
by the Quebec Deputy Minister of
Finance
under the Excise Tax Act
Plaintiff
and
ALAIN DÉZIEL,
FIDUCIE AVILLA, REPRESENTED BY
TRUSTEES ALAIN DÉZIEL AND CHANTAL
GARCEAU,
REGISTRAR FOR THE
CHAMPLAIN REGISTRATION DIVISION
AND REGISTRAR FOR THE
TROIS-RIVIÈRES REGISTRATION
DIVISION
Defendants
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Her
Majesty the Queen is asking the Court to find that the donation of twelve
residential buildings by its debtor, Alain Déziel, to Fiducie Avilla in January 2000
is unenforceable under article 1631 et seq. of the Civil Code of
Québec (C.C.Q.).
Background
[2]
What
stood out from the submitted evidence is that the most relevant events are as
follows.
[3]
On
July 16, 1999, a notice of assessment (GST) for the period from April 1,
1994 to June 30, 1996 was issued for Alain Déziel in the amount of
$226,900.
[4]
On
August 17, 1999, another notice of assessment, this time regarding the
Québec sales tax and for the same period, was issued in the amount of
$207,784.77.
[5]
In
late August 1999, Alain Déziel consulted Mr. Jean-Guy Diamond, notary and
financial planner, regarding those assessments. The mandate that he gave Mr. Diamond
is in a document dated September 10, 1999. Among other things, Mr. Diamond
must coordinate the objections to those assessments. He has
authority to negotiate all agreements and make all representations to the
Ministère du Revenu du Québec (the Ministère) regarding those assessments. He
must also set up a protective trust for Alain Déziel’s rental buildings and
obtain consent from Mr. Déziel’s creditors. Lastly, he can also retain the
services of experts who are necessary to carry out his mandate.
[6]
On
August 25, 1999, Mr. Diamond communicated with Mr. Bouchard, the
collections officer with the Minstère du Revenu du Québec who is tasked with
Mr. Déziel’s file regarding his two assessments.
He indicated that he must prepare a budget in order to present a proposal.
Mr. Bouchard testified that he gave Mr. Diamond until
September 17 to present him with such a proposal on behalf of
Mr. Déziel.
[7]
In
late August or early September, Mr. Bouchard went to Trois-Rivières to
verify whether the various buildings about which he had spoken with the auditor
in this file were properly registered in the debtor’s name. At the City Hall,
he compiled a list of those buildings with their respective municipal
assessments. Mr. Bouchard said that he had
prepared two different lists. The first included the buildings that are free of
any guarantee, such as the residence on Maheux Street, the large vacant plot of
land located on Marion Street (2 lots) and the plots of land in
Ste-Marthe-du-Cap. The second listed twelve residential buildings that have
many hypothecs. He testified that at that stage, given the objections that are
underway, he had no intentions of getting guarantees for the buildings with
many hypothecs. During cross-examination, he confirmed that at first glance,
those twelve residential buildings had some equity (around $50,000 each) when
comparing the amount of the mortgage and the amount of the municipal
assessment.
[8]
According
to Mr. Bouchard, on September 16, 1999, Mr. Diamond told him that
Mr. Déziel had nothing to give to the Ministère du Revenu du Québec
because he received only $12,000 in net rental income per year and he proposed
to pay $50 per month, which was refused. Mr. Diamond testified that he did
not recall that conversation or the amounts discussed with Mr. Bouchard.
[9]
In
the notes from Mr. Bouchard used during his cross-examination, it appears
that it was also on September 16 that he decided to register a legal
hypothec on the large vacant plot of land on Marion Street that is assessed at
$122,000 and on the residence of Mr. Déziel, which is assessed at
$200,000.
[10]
According
to Mr. Diamond, in September 1999, Mr. Bouchard allegedly told him
instead that he assessed the residence of Mr. Déziel at $250,000 and the
large plot of land on Marion Street at $550,000. As for Mr. Bouchard, he
indicated during his main testimony that after his visit to Trois-Rivières, he
had assessed the residence at around $150,000.
[11]
Lastly,
it appears that Mr. Bouchard notified Mr. Diamond on
September 16, 1999 that he intended to register a legal hypothec on those
buildings.
[12]
According
to the journal entries used during the cross-examination of Mr. Bouchard,
it appears that on September 22, 1999, Mr. Diamond communicated with
Mr. Bouchard to notify him that Mr. Déziel would like to free up [translation] “the vacant land to
construct a building”. Mr. Bouchard allegedly refused because according to
him, it was the only guarantee. The parties did not clarify which land this
was. However, we can deduce that this was probably the land on Marion Street.
[13]
Also
on September 22, 1999, Mr. Bouchard received a medical certificate on
October 26, 1998 from Mr. Diamond showing that Mr. Déziel, who was
the victim of a serious accident in 1994, suffers from serious post-traumatic
symptoms.
[14]
On
September 21, 1999, a certificate dated September 16 and bearing the
GST number 3538-99 was registered with the Federal Court under section 316
of the Excise Tax Act, R.S.C., 1985, c. E-15,
(the Act) in the amount of
$231,085.08. That certificate indicated that a penalty of 6% per year and
interest at a rate prescribed by the Act, capitalized daily, are payable on
this amount starting on September 17, 1999, until it is fully paid. It
appears that Mr. Bouchard had difficulty in having Mr. Déziel sign
that document.
[15]
On
September 23 and 29, 1999, two legal hypothecs were registered with Revenu
Québec only and to guarantee payment of the QST on the following buildings:
i.
Residence
located on 3365 Maheux Street in Trois-Rivières (Lot #1208304)
ii.
Large
vacant plot of land on Marion Street in Trois-Rivières (Lots #1206290 and
#1206291)
iii.
Vacant
land in Ste-Marthe-du-Cap (Lots # 2304591 and #2304575)
[16]
On
October 19, 1999, Mr. Diamond indicated to Mr. Bouchard that
Mr. Déziel wanted to develop the lands in Ste-Marthe-du-Cap.
Mr. Bouchard replied that he would need to file a letter of indemnity with
him for an amount that is equal to the value of those buildings and that he
will thus need to have an assessment done. It also appears that Mr. Déziel
wanted to develop the large vacant land on Marion Street in Trois-Rivières in
order to sell a portion of it to a developer and keep the mortgage on the rest.
[17]
Aside
from the testimony from Mr. Diamond, who said that Mr. Bouchard told him
during a conversation that the value of Mr. Déziel’s residence and the
large land on Marion Street was around $750,000, there is no evidence before
the Court that these two parties had other discussions before the transfer of
residential buildings to Fiducie Avilla.
[18]
On
January 26, 2000, Fiducie Avilla was constituted by Alain Déziel as the
settlor, with Mr. Déziel and his common-law spouse, Chantal Garceau, as
trustees and Alain Déziel as the sole beneficiary.
[19]
That
same day, Alain Déziel gave Fiducie Avilla, represented by trustees Alain
Déziel and Chantal Garceau, the twelve buildings consisting of one hundred and
eight (108) residences. Donation contracts specify that this is done for free.
However, although Mr. Déziel was not personally released and remains personally
responsible for the affected financial institutions, the donor agrees to assume
the repayment of existing loans on each of the buildings.
[20]
Lastly,
the donation was also accompanied by a condition such that the given property
and all amounts resulting from their sale and their resulting incomes, along
with the property acquired by the use and re-use of those amounts, will be
unseizable by the donor for a period of one hundred years.
[21]
Mr.
Diamond testified that he obtained written consent from all mortgage creditors
holding guarantees registered for the buildings given to Fiducie Avilla before
proceeding with the transaction. However, he confirmed that he did not ask for
the consent of the Ministère du Revenu du Québec or Her
Majesty the Queen, stating that those consents were not necessary and that
those creditors may invoke their right set forth under article 1631 et
seq. of the C.C.Q. in the year following the transaction. Mr. Diamond
said that he did a summary analysis of the buildings’ value to ensure that
there was no prejudice against “creditors”. He did not indicate his assessment
of the property. According to him, Mr. Bouchard told him that he was very
secure and that he had no problems, since the debts owing to Her Majesty the
Queen and the Ministère du Revenu du Québec were sufficiently guaranteed by the
residence and the large land on Marion Street ($750,000).
[22]
On
January 31, 2000, legal hypothecs guaranteeing the amount
owing in GST to Her Majesty the Queen were registered on buildings that were
already burdened by a legal hypothec in favour of the Ministère du Revenu du
Québec since September 2000.
[23]
On
February 9, 2000, Mr. Diamond called Mr. Bouchard to tell him that Mr. Déziel
would still like to develop the two plots of land in Ste-Marthe-du-Cap, as well
as the one on Marion Street in Trois-Rivières. That same day, Mr. Bouchard
sent an assessment request to Mr. Gilles Vézina for the land in Ste-Marthe-du-Cap.
It appears that a note indicating a value of $10,500 for each was written in
March 2000.
[24]
Mr.
Bouchard said that in July 2000, he received confirmation from the person
responsible for the objection file that his review was practically complete and
that the assessments would be maintained almost in their entirety. He then
decided to register additional legal hypothecs, this time, on Mr. Déziel’s
twelve residential buildings. He also asked the affected land registers to send
him an uncertified copy of the inputs regarding those buildings. He testified
that those documents were received on or around August 10, 2000 and that
it was only at that time that he learned of the transaction on January 26,
2000. He stated that he immediately requested a copy of the registered deeds
and verified the impact of those transactions on the rights of Her Majesty and
the Ministère.
[25]
On
October 24, 2000, he gave instructions to his counsel to institute a Paulian
action. This action was filed on April 5, 2001. A similar action was filed
with the Superior Court of Québec in the district of Trois-Rivières on March 30,
2001, to assert the rights of the deputy minister of Quebec regarding the sales
tax that remained unpaid.
[26]
Meanwhile,
on September 27, 2000, the minister decided to formally object by issuing
a notice of reassessment (GST) in the amount of $226,346.57. Mr. Déziel
appealed that assessment at the Tax Court of Canada (TCC), which dismissed his
appeal with costs on December 6, 2002. On March 18, 2004, the Federal
Court of Appeal partially allowed Mr. Déziel’s appeal and only to
acknowledge the admission by Her Majesty such that $22,718.98 had to be granted
as input credits. Thus, the Court of Appeal essentially affirmed the TCC’s
decision. Her Majesty the Queen received costs in both instances.
[27]
It
is appropriate to note that for the purposes of this action, the parties agreed
that the Court could if necessary use the market value assessments of the
twelve residential buildings as established by Tardif J. of the TCC in his
decision.
[28]
Mr.
Déziel’s appeal of the assessment regarding the QST was also dismissed. On
August 22, 2001, Mr. Bouchard obtained an administrative seizure of
one of Alain Déziel’s accounts at a Caisse populaire for QST payment. On May 13,
2005, he proceeded with a garnishing of the Desjardins trust and received
$36,465.38 from the liquidation of an RRSP filed under Mr. Déziel’s name.
This amount was also entirely used to repay the QST owed to the Ministère du Revenu
du Québec.
[29]
On
May 24, 2005, the special clerk of the Superior Court of Québec made an ex
parte judgment that set the conditions of sale for the buildings that were
burdened by a legal hypothec in favour of the Deputy Minister of Finance. Mr. Déziel
then tried to obtain a retraction of that judgment, but it was refused. The
Quebec Court of Appeal also dismissed his appeal in that matter. In his
judgment, the special clerk authorized a sale by private agreement of the
buildings for an amount equal to 70% of their market value in January 2000,
such as those that had been established by Mr. Vézina, an assessment expert at
the Ministère, in 2003.
[30]
On
September 29, 2005, Mr. Bouchard obtained a letter of indemnity for
$200,000 in order to delete the legal hypothec on Mr. Déziel’s former
residence. He exercised his rights under that letter
of credit on February 16, 2006.
[31]
Mr.
Paré, the acting officer during the sale of the other buildings burdened by a legal
hypothec, said that he sold the two plots of land in Ste-Marthe-du-Cap by
private agreement to the owner of an adjacent property for $18,500 and the
large plot of land on Marion Street to the owner of a neighbouring lot for
$185,000. He indicated that he was satisfied that the offers received from
those persons were well above the minimum price indicated in the special clerk’s
judgment. He therefore did not engage in any publicity or attempt to find
better offers.
[32]
It
also appears that the owner of the neighbouring land who bought the large plot
of land on Marion Street had already tried to buy it from Mr. Déziel. This
buyer had also contacted Mr. Bouchard in 2002 to show his interest and he
had even sent him an offer for $100,000.
[33]
Given
the state of the order of priority of creditors approved by the Superior Court
of Québec following the sale under legal process of the buildings burdened with
legal hypothecs, on June 12, 2006, Alain Déziel still owed Her Majesty
$214,678.16 for the GST.
[34]
In
this case, the Court had suspended the action at the request of the parties
until a final decision on the GST assessment was made.
[35]
At
the hearing, Mr. Déziel represented himself. However, Mr. Dury,
whom the Court had refused permission to withdraw from the case before the
start of the hearing, continued to represent Fiducie Avilla.
[36]
The
plaintiff had two ordinary witnesses: Mr. Bouchard and Mr. Paré. It also had Mr. Vézina testify as an expert in real
estate appraisal in order to establish the value of the buildings charged with legal
hypothecs in January 2000.
[37]
The
defendants had Mr. Déziel and Mr. Jean-Guy Diamond testify, as well as Mr. Louis
George Baril, another expert in assessment. Mr. Baril filed a report on
the market value of the buildings charged with legal hypothecs in July 2003.
He also filed a “letter of opinion” on the value of the large plot of land on
Marion Street in June 2006.
[38]
Although
each party challenged the merits of the assessments that were presented by the
expert from the opposing party, they accepted that Mr. Vézina and Mr. Baril
were qualified to give an opinion on the market value of the buildings in
question.
[39]
The
defendants argued that Mr. Vézina, who essentially works for the Ministère
du Revenu du Québec, was not an independent witness and because of that, the
Court should not give any weight to his testimony.
[40]
Lastly,
at the start of the hearing, Mr. Déziel presented a very lengthy motion to
strike the statement. After the filing of written submissions, the plaintiff
moved to re-open the investigation. Both of those motions were dismissed.
Issues
[41]
In
his written submission, the defendant Alain Déziel raised several questions
that are not relevant to the action that is presently before the Court. Among
others, he asked the Court:
i.
to
reject all affidavits signed by Mr. Bouchard;
ii.
to
order the payment of penalties totalling $552,500 in order to remedy the injuries
that he has suffered over the years in this case;
iii.
to
bar the defendant from any further legal action against Mr. Déziel in
order to spare him from any new stress and confusion;
iv.
to
order exemplary damages totalling $3,000,000 in favour of the defendant to
compensate for the psychological problems and moral damages that he has
suffered;
v.
to
issue a favourable opinion regarding the errors by Tardif and Richard JJ.
in their judgment that diminished Mr. Déziel with respect to the credibility
of his illness.
[42]
The
Court does not have the authority to examine the questions described in
subparagraphs ii) to v). Mr. Déziel did not file a counterclaim
against the defendant. Additionally, in any case, the Court does not have
jurisdiction, for example, to issue an opinion on the judgment of the TCC and
the Superior Court. Those decisions were affirmed and cannot be attacked
indirectly by Mr. Déziel. As for the affidavits filed by Mr. Bouchard
at other steps in the action and mentioned in subparagraph 42i), they are
not before the Court at the trial stage. However, the Court is considering Mr. Déziel’s
arguments in that matter in its assessment of Mr. Bouchard’s credibility.
Lastly, the Court notes that it cannot consider the facts mentioned in the
parties’ written submission that were not submitted as evidence before it.
[43]
For
the defence, Alain Déziel and Fiducie Avilla only raised the following
questions:
i.
the
Crown debt had not received a final decision prior to the filing of defence;
ii.
Her
Majesty had not suffered any prejudice because the transactions on January 26
did not render Mr. Déziel insolvent and the plaintiff herself acknowledged
through Mr. Bouchard that the buildings charged with legal hypothecs had
sufficient value in itself to guarantee her claimed debt;
iii.
the
trust was created in good faith and with no intention of defrauding the rights
of the plaintiff;
iv.
the
action is statute barred.
[44]
The
Court must therefore rule on the following questions:
i.
Is
the action statute barred?
ii.
Did
the plaintiff establish the conditions that are essential to her remedy:
i.
a
certain and exigible claim;
ii.
prejudice;
iii.
a
donation in fraud of her rights?
[45]
Lastly,
some evidence was heard subject to an objection from the plaintiff as to their
relevance. During the review of the questions listed above, I will deal with it
if it proves necessary.
Analysis
[46]
As
the Federal Court of Appeal indicated in Canada (MNR) v. Gadbois, [2002]
F.C.J. no 836, (F.C.A.)(QL), there is no doubt that the Court has the
power to ensure that its judgments are enforced, and in that context, it may be
required to dispose incidentally of issues under provincial law that are raised
against that enforcement. The certificate registered with the Court in
September 1999 is deemed to be a judgment rendered by the Court
(subsection 316(2) of the Act). I am therefore satisfied that the Court
has jurisdiction to declare the donation made by Alain Déziel to Fiducie Avilla
invalid if Her Majesty succeeds in establishing that she has fulfilled the
criteria that are applicable to such an action and that her action is not
statute barred.
Limitation
period
[47]
Under
article 1635 of the C.C.Q., the Paulian action is forfeited unless it is
brought within one year from the day on which the creditor learned of the prejudice
resulting from the act which is attacked. The defendants did not submit
evidence indicating that Mr. Bouchard had in fact learned of the donation
on January 26, 2000 before August of that year. However, they argue that
the Court should presume that Mr. Bouchard learned of that transaction,
considering that it was duly registered in the public register in January 2000.
[48]
In
Realstar Hotel Services Corp. c. 3099-1103 Québec Inc., 2005 QCCA 555,
[2005] J.Q. no. 6838 (QL), the Quebec Court of Appeal rejected that same
argument, which was presented by a debtor as part of a Paulian action. In that
case, the issue was knowing whether the only publication of a bill of sale in
the land register caused an almost irrefutable presumption against a creditor
who had instituted that action.
[49]
In
paragraph 15 of the decision, André Rochon J. found that that
proposal has no legal basis and that the registration of a bill of sale at the
Registry Office does not have the scope regarding third parties or any person
acquiring or publishing a right in the same property and is identified by
article 2943 of the C.C.Q., which creates a simple presumption of
knowledge.
[50]
As
I have said, Mr. Bouchard testified that he only learned of the donation in
August 2000. His testimony as to the timeline of events is partially
corroborated by the letters that he sent on July 11, 2000 to the registry
offices of Trois-Rivières and of Champlain, as well as by the invoices received
by those offices dated July 18 and approved for payment on August 10,
2000.
[51]
As
mentioned, the Court considered the various arguments raised by Mr. Déziel
to attack the credibility of this witness. The Court can only find that Mr.
Bouchard was not a credible witness whose testimony must be completely
rejected. On that particular point, the Court is satisfied that the plaintiff
established that the action was instituted before the deadline specified in
article 1635 of the C.C.Q.
Certain and
exigible claim
[52]
Article 1634
of the C.C.Q. specifies that the claim must be certain at the time the action
is instituted, and must be liquid and exigible at the time the judgment is
rendered.
[53]
There
is no doubt that the Crown debt precedes the donation and that given the
registration of GST certificate 3538-99 in September 1999, which is
equivalent to a judgment by this Court, the claim was certain at
the time the action is instituted, even though the notice of assessment was
being objected. There is now no doubt that this claim is liquid and exigible.
Prejudice
[54]
For
a Paulian action to succeed, the creditor must establish that he suffered a prejudice
and Mr. Déziel denies that Her Majesty suffered any prejudice whatsoever
in this case. He submits that he was completely solvent at the time of the
transactions and after. In addition, he argues that Her Majesty has held
sufficient sureties to protect her debt since September 1999. Lastly, he
says that through Mr. Bouchard, the plaintiff had him and his legal
counsel believe that she was also satisfied that the value of the buildings
outside of the trust ($750,000) was sufficient to cover that debt ($750,000).
[55]
Mr.
Déziel submits that the Court cannot consider the amounts that were obtained
during the sale of his assets in 2005 because those properties were sold for
well below their genuine market value in 2005. According to him, it was only to
let her establish a prejudice that the plaintiff failed to have the market
value of those properties assessed at the time of the sale by private
agreement. Lastly, he said that if he was missing assets in his personal
patrimony, it is because Mr. Bouchard failed to take legal hypothecs on
twelve residential buildings when he could have in September 1999.
According to the defendants, Mr. Bouchard had the duty to take sufficient
sureties to ensure the payment of that debt. He did not submit any expert
opinions in that regard.
[56]
In
her written representations, Her Majesty argues that the Count can find that by
donating his residential buildings in January 26, 2000, Mr. Déziel
not only diminished and weakened his patrimony, but he was placed in a
situation of insolvency. In fact, according to the plaintiff, he no longer had
the means to deal with his debts, particularly when we consider that the
amounts due increased with no end in sight due to applicable penalties and
interest.
[57]
According
to the plaintiff, the buildings outside of the trust were only worth $284,000.
At the time, the debtors also had an RRSP of around $40,000, which was
unseizable.
[58]
Mr.
Déziel received indemnities from the SAAQ, which were also unseizable under
section 83.28 of the Automobile Insurance Act, R.S.Q., c. A-25.
[59]
Lastly,
the net rental income of $12,000, which Mr. Déziel received before the
transaction, was transferred to the Fiducie and was unseizable by the donee.
[60]
Even
if the amount of $284,000 may have been relevant in August 2000 when Mr. Bouchard
learned of the transfer of the residential buildings, the Court cannot limit
itself to that approximation in order to determine whether in the facts, Mr. Déziel
was or became insolvent when he transferred his residential buildings to the patrimony
of the Fiducie.
[61]
In
fact, the Court cannot ignore the fact that Her Majesty submitted into evidence
three assessment reports from Mr. Vézina, which indicated that on January 26,
2000, the buildings outside of the trust were worth $455,700.
[62]
As
for Mr. Déziel, although he disputes Mr. Vézina’s assessments, he did
not present assessments from Mr. Baril establishing the value of those
buildings on January 26, 2000.
[63]
However,
it appears that this expert agreed with the assessment for the residence on
Maheux Street prepared by Mr. Vézina, since Mr. Vézina used his 2003
assessment as a starting point. Afterwards, in 2003, both experts agreed on an
appreciation rate of 9% between 2000 and 2003 for that particular sector.
[64]
Although
Mr. Déziel, owing to his expertise in construction, testified that he assessed
the value of his residence in 2000 at $250,000, the Court prefers the
assessment on which both experts agree in the matter: $208,300.
[65]
Mr.
Déziel also stated that the vacant plot of land on Marion Street had [translation] “a very high value”.
However, he never assessed that value.
[66]
During
his re-examination, Mr. Baril indicated that the appreciation rate of 9%
may in theory be applied to the plot of land on Marion Street. However, the
Court understands from his testimony that the plot of land on Marion Street was
in a fast-developing area and that in fact, it is a much higher percentage of
appreciation that he would have had to apply if he had to prepare an assessment
in January 2000. Since Mr. Déziel did not file or call attention to any
expert reports in that matter, Mr. Dury did not have permission to
elaborate further on the topic in re-examination.
[67]
Moreover,
Mr. Baril testified that the value of the plots of land in
Ste-Marthe-du-Cap was stable and that there had not been any real appreciation
in that area between 2000 and 2003. The Court understands that the value
established by Mr. Baril for his lands in 2003, which was $45,000 (more
than double Mr. Vézina’s assessment), would have been the same in 2000.
[68]
In
light of the foregoing, the Court finds that the market value of the buildings
outside of the trust was between $455,700 and $478,360. Mr. Déziel may also
liquidate his [UCEI] if he would like in order to pay his debts.
[69]
Mr.
Déziel’s known debts (aside from the mortgage loans)
then reached a bit over $430,000 ($440,722 if we use the amounts indicated in
the legal hypothecs).
[70]
As
indicated by Jean-Louis Baudoin in Les obligations, 4th edition,
Les Éditions Yvon Blais Inc., at no. 677, page 372:
[translation]
The existence of insolvency is a
question of fact left to the supreme discretion of the courts. They have always
refused to let themselves be hemmed in by a definition that is too rigorous and
adopt something in which the technical definitions of that status, given by the
Bankruptcy Act or the Winding-up Act. For some authors, insolvency
is simply the status for a person whose patrimonial liabilities exceeds the
assets. Case law, as a general rule, tends towards a broad conceptualization and
recognizes ‘insolvent’ as persons who have stopped honouring their obligations regarding
their deadlines and who are unable to fulfill their commitments or pay what
they owe…
[71]
Mr.
Déziel described his situation in September 1999 as being rather
precarious, since he feared being driven into bankruptcy [translation] “if something happened” and
his mortgage lenders panicked. However, the Court is not satisfied that he was
insolvent at the time of the transaction or that the transfer made him
insolvent. The plaintiff simply did not meet her burden for proving this
question of fact within a balance of probabilities.
[72]
However,
insolvency is not a condition for carrying out a Paulian action and that
finding does not mean that the donation did not cause prejudice to the
plaintiff within the meaning of article 1631 of the C.C.Q. It will only
have an impact on the application of the presumptions under articles 1633
and 1634 of the C.C.Q.
[73]
In
recent decisions, the Quebec Court of Appeal clearly decreed that courts must
take a broad view of prejudice so as not to unduly limit the scope of remedy
under article 1631 of the C.C.Q.
[74]
In
Duchesne v. Demers, [2004] R.J.Q. 2909, [2004] J.Q. no. 11666
(QL) at paragraph 33, it states that:
[translation]
It is a
reduction of patrimony when the debtor, through the attacked juridical act,
becomes insolvent or aggravates his insolvency, but also when, whether
insolvent or not, he disposes of a property for free or next to nothing
or enters into a juridical act without valid or sufficient compensation7… (Emphasis added)
[75]
The
Court of Appeal also indicates that it is a prejudice when the debtor acts in a
way that deprives his creditors of the inherent guarantee that they have over
his property or when he makes the collection of their debts more difficult by
reducing his patrimony.
[76]
Naturally,
the Quebec Court of Appeal noted that caution remained appropriate so as not to
unduly trigger the immobilization or the freezing of debtors’ patrimony.
However, it also says that the concept of prejudice must remain broad enough in
order to cover the variety of factual situations caused by the ingenuousness of
some debtors and so that it can even cover situations in which the debtor
disposed of a property at a fair price. (Duchesne, above, at paragraph 38.)
[77]
Apart
from another decision involving Mr. Déziel,
this is the first time that a court has examined this question as part of a
transfer of property to a trust that was specifically created to protect a
debtor’s assets.
[78]
The
Court does not have to decide whether the plaintiff sought to artificially
create a prejudice by selling the assets below their value in 2005. In fact, the
Court does not intend to consider the amounts obtained during the sale by legal
process in order to determine whether the transaction in January 2000
caused a prejudice to the plaintiff.
[79]
That
being said, the Court is nevertheless satisfied that the transfer of the
residential buildings from Alain Déziel’s patrimony to the separate patrimony
of the Fiducie caused a prejudice to the plaintiff because, without a shadow of
a doubt, that reduced a debtor’s patrimony of assets for which there was
sufficient equity to justify the registering of additional mortgages in August 2000.
[80]
By
carrying out this transfer, Mr. Déziel effectively ended the right of Her
Majesty to register guarantees against those buildings without any valid
compensation returning to her patrimony. Even if the Court accepts that the
value of the buildings outside of the trust was slightly higher than the amounts
owing in January 2000, the Court finds that Mr. Déziel reduced and
jeopardized his patrimony, the common pledge for both of his creditors at that
time, Her Majesty in particular, who is the plaintiff in this action.
[81]
Despite
that finding, can the Court refuse to grant Her Majesty the remedy that she is
seeking if she, through Mr. Bouchard, in fact acquiesced to that transfer
or expressly acknowledged that it would not cause her prejudice?
[82]
It
must first of all be said that Her Majesty had not yet registered any mortgage
whatsoever at the time of transfer. In that regard, it is important not to
confuse the two debts of Mr. Déziel. Mr. Bouchard was therefore not
able to make any representations on behalf of Her Majesty as to the sufficiency
of the legal hypothecs in place.
[83]
Thus,
vis-à-vis Her Majesty, Mr. Déziel’s argument is summarized in saying that
Mr. Bouchard allegedly admitted that the residence and vacant land on
Marion Street was worth less than $750,000 and that there was sufficient equity
in both properties to satisfy the debts owing to the Ministère and Her Majesty.
[84]
As
I have mentioned, the testimonies from Mr. Bouchard and Mr. Diamond
in that regard are totally contradictory. Mr. Bouchard denies making any
representations whatsoever to Mr. Diamond as to the value of those
buildings and the sufficiency of the guarantees held by the Ministère (QST). He
says that he never assessed the value of those two assets at $750,000.
[85]
In
order to answer that question, the Court considered all of the evidence in
order to determine whose version appears to be the most plausible.
[86]
The
Court finds that Mr. Diamond’s testimony for that particular question is
neither plausible nor credible. That does not mean to say that this witness is
lying. It is possible that his imperfect memory of the case led him to testify
as he did. In that regard, it is important to mention that Mr. Diamond
said that he had not reviewed his file before coming to testify and that he did
not even know that he was testifying as part of a Paulian action. That
behaviour is rather surprising for a legal expert.
[87]
That
being said, as was indicated by notary Marie-Claire Riendeau in an article
published by the Association de planification fiscale et financière in
June 1996, [translation] “the
creation of a personal trust in Quebec civil law by means of transferring a
property to be protected to a trust is another way of reducing the property of
a person from the common pledge of possible creditors.” [translation] “The use of a protective trust
should always be addressed in a planning situation and not to remedy a
situation in which a client is already dealing with serious financial
difficulties, threatened with bankruptcy or wants to take away from a current
creditor.”
[88]
Here,
it is quite clear that in September 1999, Mr. Déziel was afraid of
bankruptcy and of losing everything if his mortgage creditors panicked. Mr. Diamond
himself said that he feared that the registration of legal hypothecs may
jeopardize Mr. Déziel’s credit. The goal of the Fiducie was to create a
barrier, apparently for the sole purpose of securing the mortgage creditors
from defendant Alain Déziel.
[89]
In
addition, as Mr. Diamond clearly noted, he knew that if the donation of the
buildings created a prejudice to Mr. Déziel’s past creditors, they would
have had a year to challenge it.
[90]
In
this context, if Mr. Bouchard has voluntarily reassured Mr. Diamond that
the value of the residence and land on Marion Street was clearly sufficient to
cover the amounts due to Her Majesty and the Ministère, we would expect him to
provide solid evidence in that regard. He would have easily been able to ask
for written confirmation from Mr. Bouchard or write him to confirm that
conversation. At the very least, that important information would have to have
been noted in his file.
[91]
If,
as Mr. Diamond said, that conversation took place in September 1999, why
was it that on September 16, Mr. Bouchard wrote in his journal that a
mortgage needed to be registered for the plot of land on Marion Street assessed
at $122,000 and the residence assessed at around $200,000 since there was a
risk of loss?
[92]
The
Court did not retain the testimony of Mr. Bouchard such that he had
assessed the residence at 150,000 during his visit to Trois-Rivières. It
prefers the assessment that he himself had entered on September 16 in his
journal. In the same manner, the Court must consider that reference when it
assesses the plausibility of Mr. Diamond’s testimony.
[93]
Strangely,
Mr. Déziel himself is the only witness who maintained that in 2000, his
residence was worth $250,000. In that regard, he submitted that it was his [translation] “assessment as a developer”
of the market value. Just before that, he also said:
[translation]
Well then, what I may add is that
when the notary had done the – he had done the assessments, that was a
lot for what I had. When he did that, that was worth, at minimum, my house was
worth two hundred and fifty thousand (250,000) …
(Emphasis added)
[94]
As
for the plot of land on Marion Street, Mr. Déziel did not doubt the fact that
Mr. Bouchard had no experience in real estate appraisal. According to Mr.
Bouchard’s testimony that was accepted by the Court, it also appears that in
that regard, the rule at the Ministère was to use the municipal assessments as
a starting point. How, therefore, did it reach a value of $500,000, which is
three times greater than the municipal assessment for that land? No one doubted
the fact that Mr. Bouchard did not have that land assessed by an expert at
that time. In fact, he even notified Mr. Diamond in October 1999 and
again in February 2000 that he should obtain a genuine assessment before
he could accept a letter of guarantee in order to write off the legal hypothecs.
[95]
As
mentioned earlier, the Court found that in January 2000, this land was
worth $225,000, the value established by Mr. Vézina. And no witnesses said
that this land was worth $500,000 in January 2000.
[96]
According
to Mr. Déziel, in September 1999, the filling of this land, which was
swamp-like when he purchased it, was not complete. Essentially, the zoning was
residential. There was no indication for a layman like Mr. Bouchard that
this land had such a value.
[97]
It
is also edifying to find that the amount of $500,000 perfectly matches the
amount that was offered by the mayor of Trois-Rivières to Mr. Déziel in
2003.
[98]
Once
again, the Court carefully considered the arguments raised by Mr. Déziel
in his written representations, particularly those regarding the credibility of
Mr. Bouchard, but one fact remains. In September 1999,
Mr. Bouchard had only been on that file for about a month and he had no
reason to mislead either Mr. Déziel or Mr. Diamond.
[99]
Therefore,
the Court prefers and accepts Mr. Bouchard’s version. Mr. Déziel also
did not establish that the plaintiff acquiesced in any way to the transaction
on January 26, 2000 or that she submitted to Mr. Diamond that the
residence and the land on Marion Street was worth $750,000.
Was the donation
in fraud of the rights of Her Majesty?
[100] As I
have indicated, the plaintiff cannot benefit from the presumptions under
articles 1633 and 1634 of the C.C.Q. She submits that the Court
nevertheless has sufficient evidence to find that she has established that the
donation had defrauded her rights.
[101] According
to her, doctrine and case law affirm her position, in which she does
not have to directly show a malicious intention on the part of Mr. Déziel, but
simply that he was aware and aware at the time of the donation of the negative
repercussions that this transfer would have had on his patrimony and the prejudice
that it would cause Her Majesty.
[102] She
also highlighted the following two passages:
Caisse
populaire Desjardins Terrebonne v. Bibeau, [1995] J.Q.
no. 3074, in which Clément Trudel J. indicated at paragraph 35:
[translation]
In matters of fraud related to
Paulian actions, a very broad interpretation should be given. It is not
necessary for a debtor to have acted with malice in mind. Paulian fraud is
defined as being the simple knowledge of prejudice that can be caused to those
creditors.
Petro-Canada
v. Les Pétroles Astro Inc., [2003] J.Q. no 15384, in which
Danielle Blondin J. says at paragraph 15:
[translation]
Article 1631 of the Civil Code of Québec also
requires that the creditor has established the fraudulent aspect of the
contract. More specifically, evidence of the intention to defraud the creditor
is required or at the very least, knowledge of the negative repercussions of
the act on the patrimony of the creditor and the effective participation of the
transactor.
(Emphasis added)
[103] In
addition, for Her Majesty, the Court can easily find that there was fraud and
intention to cause prejudice, given the context. Specifically, she highlights
the simultaneity between the raising of her assessment in August 1999 and
Mr. Déziel’s decision to go ahead with the creation of the Fiducie in September 1999.
Furthermore, she notes the particular conditions of the Fiducie: Mr. Déziel
was the settlor, the sole beneficiary and one of the trustees, and the donation
was unseizable.
[104] She
submits that the Court must consider Mr. Déziel’s general attitude in this
file. He never voluntarily paid anything whatsoever to the plaintiff, even
after a final judgment was made by the Federal Court of Appeal. The plaintiff
cited various passages from judgments made in other cases involving Mr. Déziel,
which, according to her, show the debtor’s intention.
[105] Lastly,
the plaintiff is asking the Court to consider the testimony of Chantal Garceau
in another action between Claire Paquin and Mr. Déziel, in which Ms. Garceau
said that the Fiducie had been created [translation]
“to shelter Mr. Déziel’s buildings from being seized by his creditors due
to a GST and QST problem.” On the basis of that testimony, Michel Richard J.
of the Superior Court of Québec said in paragraph 86 of his decision from
April 26, 2006, (exhibit R-18) [translation]
“… she clearly highlighted that the trust had been created by Mr. Déziel
in cooperation with her for the purpose of keeping Mr. Déziel from paying
his creditors, particularly including the GST and the QST”.
[106] According
to the plaintiff, that was a judicial admission that binds Mr. Déziel and
particularly the Fiducie because Ms. Garceau was one of the two trustees
who represented the Fiducie during the donation. Her Majesty highlights that
Ms. Garceau indicated in the matter with Claire Paquin that she still takes
care of the Fiducie’s buildings (see para. 50 of the judgment).
[107] As I
said, Mr. Déziel argues that it was in good faith that he created the Fiducie
and transferred his residential buildings to it. He says that he acted on the
recommendation of his legal advisor and only after obtaining the consent of his
creditors, including the Ministère du Revenu du Québec.
[108] He
also submits that during the relevant period, he was extremely depressed and
was not in possession of all of his faculties. He was not able to make the
required decisions alone. He adds that he could not have had the intention of
defrauding Her Majesty because he did not even believe that he owed the amounts
for which he was assessed. It was also for that reason that he filed
objections.
[109] For
the reasons that were already expressed, the Court does not believe that Mr. Diamond
obtained Mr. Bouchard’s consent or that he told him that the value of the
buildings was $750,000 and that it was sufficient to cover both debts.
[110] The
Court also does not believe that Mr. Déziel was, as he said, aware of Mr. Diamond’s
efforts to obtain the Ministère’s consent. Mr. Diamond was very clear on that
topic. He did not believe that such consent was necessary and he did not try to
obtain it.
[111] The
Court did not hear testimony from any physician regarding Mr. Déziel’s
psychological condition. Mr. Déziel contented himself with filing a copy
of the decision by the Tribunal administratif du Québec
allowing his application for adjusting the benefits to be paid to him in
compliance with Quebec’s Automobile Insurance Act. In that matter, the
tribunal found that Mr. Déziel had in fact suffered psychological
after-effects from his accident and was not completely fit to work, given his
current psychiatric conditions and recent hospitalizations in a psychiatric
clinic.
[112] Although
the decision indicates that Mr. Déziel was hospitalized in March 1999
after a suicide attempt and was again hospitalized sometime early in 2000 for
about three weeks, the Court has no details on this matter. No other evidence
was submitted to the trial.
[113] Indeed,
the Court has sympathy for Mr. Déziel’s condition, but the evidence
presented by the defendant is not sufficient to establish that he had no
knowledge of the repercussions of the transfer of his Fiducie and particularly
that Her Majesty would no longer be able to seize his residential buildings or
register legal hypothecs on the assets of the Fiducie.
[114] The
Court understand the explanations given by Mr. Déziel that he generally
functions normally, but in stressful situations, he becomes extremely anxious
and depressive, and loses his faculties.
[115] In
the case before us, Mr. Déziel had several months to consider the situation. He
was able to discuss it with his legal advisor and decided in September 1999
that he wanted to go ahead with that transaction.
[116] Mr.
Déziel’s decision to act as a trustee implies that he felt that he was capable
of fully performing his duties and of making all of the required decisions for
managing the patrimony of the Fiducie. We are not dealing with a case in which,
given his psychological condition, a debtor created a trust that is managed by
other people who are more fit than him to make decisions and for which he is
the only beneficiary.
[117] In
the facts, the only thing that really changed after the transfer on January 26,
2000 is that Her Majesty and the Ministère du Revenu du Québec no longer had
direct access to the residential buildings. They could no longer seize them or
register legal hypothecs.
[118] Mr.
Déziel is an intelligent man and despite his difficulties since his accident,
the Court is satisfied that he understood exactly what the effect of that
transfer would be on his patrimony and the rights of Her Majesty. The Court is
satisfied that he had the intention of preserving his equity on his buildings
to the detriment of Her Majesty.
[119] In
that regard, the Court cannot ignore the general context. Mr. Déziel never
tried to pay that debt, even after a final judgment was made by the Federal
Court of Appeal in 2004.
[120] Even
as part of this action, it was difficult to set a trial date because Mr. Déziel
did not want to discuss settlement, as is required to be done in the Federal
Courts Rules, SOR/98-106 (see rule 257 and the order from Prothonotary
Morneau on February 24, 2005).
[121] It is
also appropriate to refer to paragraph 82 of the TCC decision, which
depicts the bad faith shown by Mr. Déziel and his representatives during
numerous requests to obtain relevant documents.
[122] In
paragraph 99 of that decision, Tardif J. also notes the presentation
of altered invoices and that the evidence submitted by Mr. Déziel clearly
showed systematic bad faith, unjustified obstinacy and recourse to all kinds of
schemes to avoid his obligations.
[123] As
mentioned, the Court does not have the authority to challenge the TCC’s
findings, which cannot be indirectly attacked. They are part of the general
context.
[124] However,
the Court did not at all consider the testimony of Chantal Garceau reported in
the decision by Richard J. To me, it is clear that the testimony of this
woman is not an admission that personally binds Mr. Déziel. Although
certain facts that were noted in the decision by Richard J. suggest that
Ms. Garceau was still involved in the management of the buildings, there
is no evidence before the Court that confirms that she was still a trustee for
Fiducie Avilla on the date of her testimony. Mr. Dury raised that problem
at the hearing and the plaintiff would have easily been able to confirm Ms. Garceau’s
position during Mr. Déziel’s cross-examination, but she did not do so. She
would have been able and had to call Ms. Garceau to testify if she wanted
the Court to consider Ms. Garceau’s version.
[125] That
being said, even without that testimony, I am satisfied by all of the evidence
before me that this donation was made in fraud of the plaintiff’s rights.
[126] In
this case, the Court does not have to examine the intention of Fiducie Avilla
because the Fiducie has no distinct juridical personality. It can only act
through its trustees.
[127] Article 1292
of the C.C.Q. also states the principle in which the trustee, the settlor and
the beneficiary are solidarily liable for acts in which they participate that
are performed in fraud of the rights of the creditors of the settlor or of the
trust patrimony. Evidence of Mr. Déziel’s knowledge and intention as a
trustee, settlor and beneficiary for Fiducie Avilla is therefore sufficient.
[128] The
Court finds that the Paulian action must be allowed. The donation from January 2000
is declared unenforceable against the plaintiff regarding any amounts that
remain due under GST certificate 3538-99, as well as costs awarded in this
matter (subsection 316(3) of the Act).
[129] The
plaintiff is entitled to costs and they will be assessed according to Tariff B,
Column III.
JUDGMENT
THE COURT ORDERS
that:
a. The
Paulian action is allowed with costs (Tariff B, Column III).
b. Alain
Déziel’s donation to Fiducie Avilla on January 26, 2000 and registered
under registration number 391799 is declared unenforceable against the
plaintiff for the balance of the amounts due to her under GST Certificate
3738-99, including the abovementioned costs.
“Johanne
Gauthier”
APPENDIX A
Code
of Civil Procedure, R.S.Q. c. C-25 Code civil de la province du
Québec,
L.R.Q.
c. C-25
|
1292. The trustee, the settlor and the beneficiary are solidarily
liable for acts in which they participate that are performed in fraud of the
rights of the creditors of the settlor or of the trust patrimony.
1631.
A creditor who suffers prejudice through a juridical act made by his debtor
in fraud of his rights, in particular an act by which he renders or seeks to
render himself insolvent, or by which, being insolvent, he grants preference
to another creditor may obtain a declaration that the act may not be set up
against him.
1632.
An onerous contract or a payment made for the performance of such a contract
is deemed to be made with fraudulent intent if the contracting party or the
creditor knew the debtor to be insolvent or knew that the debtor, by the
juridical act, was rendering himself or was seeking to render himself
insolvent.
1633.
A gratuitous contract or a payment made for the performance of such a
contract is deemed to be made with fraudulent intent, even if the contracting
party or the creditor was unaware of the facts, where the debtor is or
becomes insolvent at the time the contract is formed or the payment is made.
1634.
The creditor may bring a claim only if it is certain at the time the action
is instituted, and if it is liquid and exigible at the time the judgment is
rendered.
He
may bring the claim only if it existed prior to the juridical act which is
attacked, unless that act was made for the purpose of defrauding a later
ranking creditor.
1635.
The action is forfeited unless it is brought within one year from the day on
which the creditor learned of the injury resulting from the act which is
attacked, or, where the action is brought by a trustee in bankruptcy on
behalf of all the creditors, from the date of appointment of the trustee.
***
2943.
A right that is registered in a register in respect of property is presumed
known to any person acquiring or publishing a right in the same property.
A
person who does not consult the appropriate register or, in the case of a
right registered in the land register, the application to which the
registration refers, and the accompanying document if the application is in
the form of a summary, may not invoke good faith to rebut the presumption.
|
1292. Le fiduciaire, le constituant et le bénéficiaire sont, s’ils y
participent, solidairement responsables des actes exécutés en fraude des
droits des créanciers du constituant ou du patrimoine fiduciaire.
1631.
Le créancier, s’il en subit un préjudice, peut faire déclarer inopposable à
son égard l’acte juridique que fait son débiteur en fraude de ses droits,
notamment l’acte par lequel il se rend ou cherche à se rendre insolvable ou
accorde, alors qu’il est insolvable, une préférence à un autre créancier.
1632.
Un contrat à titre onéreux ou un paiement fait en exécution d’un tel contrat
est réputé fait avec l’intention de frauder si le cocontractant ou le
créancier connaissait l’insolvabilité du débiteur ou le fait que celui-ci,
par cet acte, se rendait ou cherchait à se rendre insolvable.
1633.
Un contrat à titre gratuit ou un paiement fait en exécution d’un tel contrat
est réputé fait avec l’intention de frauder, même si le cocontractant ou le
créancier ignorait ces faits, dès lors que le débiteur est insolvable ou le
devient au moment où le contrat est conclu ou le paiement effectué.
1634.
La créance doit être certaine au moment où l’action est intentée; elle doit
aussi être liquide et exigible au moment du jugement sur l’action.
La
créance doit être antérieure à l’acte juridique attaqué, sauf si cet acte
avait pour but de frauder un créancier postérieur.
1635.
L’action doit, à peine de déchéance, être intentée avant l’expiration d’un
délai d’un an à compter du jour où le créancier a eu connaissance du
préjudice résultant de l’acte attaqué ou, si l’action est intentée par un
syndic de faillite pour le compte des créanciers collectivement, à compter du
jour de la nomination du syndic.
***
2943.
Un droit inscrit sur les registres à l’égard d’un bien est présumé connu de
celui qui acquiert ou publie un droit sur le même bien.
La
personne qui s’abstient de consulter le registre approprié et, dans le cas
d’un droit inscrit sur le registre foncier, la réquisition à laquelle il est
fait référence dans l’inscription, ainsi que le document qui l’accompagne
lorsque cette réquisition prend la forme d’un sommaire, ne peut repousser
cette présomption en invoquant sa bonne foi.
|
Excise
Tax Act, R.S., 1985, c. E-15 Loi sur la taxe d’accise,
L.R. 1985, ch. E-15
|
Minister not bound
299. (1) The Minister is not bound by any
return, application or information provided by or on behalf of any person and
may make an assessment, notwithstanding any return, application or
information so provided or that no return, application or information has
been provided.
Liability
not affected
2) Liability under this Part to pay or
remit any tax, penalty, interest or other amount is not affected by an
incorrect or incomplete assessment or by the fact that no assessment has been
made.
Assessment
valid and binding
(3) An assessment, subject to being
vacated on an objection or appeal under this Part and subject to a
reassessment, shall be deemed to be valid and binding.
Binding
effect where unincorporated body
(3.1) Where a person (referred to in this
subsection as the “body”) that is not an individual or a corporation is
assessed in respect of any matter,
(a) the assessment is not
invalid only because one or more other persons (each of which is referred to
in this subsection as a “representative”) who are liable for obligations of
the body did not receive a notice of the assessment;
(b) the assessment is
binding on each representative of the body, subject to a reassessment of the
body and the rights of the body to object to or appeal from the assessment
under this Part; and
(c) an assessment of a
representative in respect of the same matter is binding on the representative
subject only to a reassessment of the representative and the rights of the
representative to object to or appeal from the assessment of the
representative under this Part on the grounds that the representative is not
a person who is liable to pay or remit an amount to which the assessment of
the body relates, the body has been reassessed in respect of that matter or
the assessment of the body in respect of that matter has been vacated.
Assessment
deemed valid
(4) An assessment shall, subject to being
reassessed or vacated as a result of an objection or appeal under this Part,
be deemed to be valid and binding, notwithstanding any error, defect or
omission therein or in any proceeding under this Part relating thereto.
Irregularities
(5) An appeal from an assessment shall
not be allowed by reasons only of an irregularity, informality, omission or
error on the part of any person in the observation of any directory provision
of this Part.
***
316.
(1) Any tax, net tax, penalty, interest or other amount payable or remittable
by a person (in this section referred to as the “debtor”) under this Part, or
any part of any such amount, that has not been paid or remitted as and when
required under this Part may be certified by the Minister as an amount
payable by the debtor.
Registration
in court
(2)
On production to the Federal Court, a certificate made under subsection (1)
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 thereon, as
if the certificate were a judgment obtained in the Court against the debtor
for a debt in the amount certified plus interest and penalty thereon as
provided under this Part to the day of payment and, for the purposes of any
such proceedings, the certificate shall be deemed to be a judgment of the
Court against the debtor for a debt due to Her Majesty and enforceable as
such.
Costs
(3)
All reasonable costs and charges incurred or paid in respect of the
registration in the Court of a certificate made under subsection (1) or in
respect of any proceedings taken to collect the amount certified are
recoverable in like manner as if they had been included in the amount
certified in the certificate when it was registered.
Details
in certificates and memorials
(11)
Notwithstanding any law of Canada or of a province, in any certificate made
under subsection (1) in respect of a debtor, in any memorial evidencing the
certificate or in 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 aggregate of amounts
payable by the debtor without setting out the separate amounts making up that
aggregate; and
(b)
to refer to the rate of interest or penalty to be charged on the separate
amounts making up the amount payable in general terms as
(i)
in the case of interest, interest at the prescribed rate under this Part
applicable from time to time on amounts payable to the Receiver General,
without indicating the specific rates of interest or penalty to be charged on
each of the separate amounts or to be charged for any particular period of
time, or
(ii)
in the case of a penalty, a penalty of 6% per year on amounts payable to the
Receiver General.
***
Assessment
317.
(9) The Minister may assess any person for any amount payable under this
section by the person to the Receiver General and, where the Minister sends a
notice of assessment, sections 296 to 311 apply, with such modifications as
the circumstances require.
|
Ministre non lié
299. (1) Le ministre n’est pas lié par
quelque déclaration, demande ou renseignement livré par une personne ou en
son nom; il peut établir une cotisation indépendamment du fait que quelque
déclaration, demande ou renseignement ait été livré ou non.
Obligation
inchangée
(2) L’inexactitude, l’insuffisance ou
l’absence d’une cotisation ne change rien aux taxes, pénalités, intérêts ou
autres montants dont une personne est redevable aux termes de la présente
partie.
Cotisation
valide et exécutoire
(3) Sous réserve d’une nouvelle
cotisation et d’une annulation prononcée par suite d’une opposition ou d’un
appel fait selon la présente partie, une cotisation est réputée valide et
exécutoire.
Cotisation
exécutoire visant une entité
(3.1) Dans le cas où une cotisation est
établie à l’égard d’une personne (appelée « entité » au présent
paragraphe) qui n’est ni un particulier ni une personne morale, les règles
suivantes s’appliquent :
a)
la cotisation n’est pas invalide du seul fait qu’une ou plusieurs autres
personnes (chacune étant appelée « représentant » au présent
paragraphe) qui sont responsables des obligations de l’entité n’ont pas reçu
d’avis de cotisation;
b)
la cotisation lie chaque représentant de l’entité, sous réserve d’une
nouvelle cotisation établie à l’égard de celle-ci et de son droit de faire
opposition à la cotisation, ou d’interjeter appel, en vertu de la présente
partie;
c)
une cotisation établie à l’égard d’un représentant et portant sur la même
question que la cotisation établie à l’égard de l’entité lie le représentant,
sous réserve seulement d’une nouvelle cotisation établie à son égard et de
son droit de faire opposition à la cotisation, ou d’interjeter appel, en
vertu de la présente partie, pour le motif qu’il n’est pas une personne tenue
de payer ou de verser un montant visé par la cotisation établie à l’égard de
l’entité, qu’une nouvelle cotisation portant sur cette question a été établie
à l’égard de l’entité ou que la cotisation initiale établie à l’égard de
l’entité a été annulée.
Présomption
de validité
(4) Sous réserve d’une nouvelle
cotisation et d’une annulation prononcée lors d’une opposition ou d’un appel
fait selon la présente partie, une cotisation est réputée valide et
exécutoire malgré les erreurs, vices de forme ou omissions dans la cotisation
ou dans une procédure y afférent en vertu de la présente partie.
Irrégularités
(5) L’appel d’une cotisation ne peut être
accueilli pour cause seulement d’irrégularité, de vice de forme, d’omission
ou d’erreur de la part d’une personne dans le respect d’une disposition
directrice de la présente partie.
***
316.
(1) Tout ou partie des taxes, taxes nettes, pénalités, intérêts ou autres
montants à payer ou à verser par une personne — appelée « débiteur » au
présent article — aux termes de la présente partie qui ne l’ont pas été selon
les modalités de temps ou autres prévues par cette partie peuvent, par
certificat du ministre, être déclarés payables par le débiteur.
Enregistrement
à la cour
(2)
Sur production à la Cour fédérale, le certificat fait à l’égard d’un débiteur
y est enregistré. Il a alors le même effet que s’il s’agissait d’un jugement
rendu par cette cour contre le débiteur pour une dette du montant attesté
dans le certificat, augmenté des intérêts et pénalités courus comme le
prévoit la présente partie jusqu’au jour du paiement, et toutes les
procédures peuvent être engagées à la faveur du certificat comme s’il
s’agissait d’un tel jugement. Aux fins de ces procédures, le certificat est
réputé être un jugement exécutoire de la Cour contre le débiteur pour une
créance de Sa Majesté.
Frais
et dépens
(3)
Les frais et dépens raisonnables engagés ou payés pour l’enregistrement à la
Cour fédérale d’un certificat ou de l’exécution des procédures de perception
du montant qui y est attesté sont recouvrables de la même manière que s’ils
avaient été inclus dans ce montant au moment de l’enregistrement du
certificat.
Contenu
des certificats et extraits
(11)
Nonobstant les lois fédérales et provinciales, dans le certificat fait à
l’égard du débiteur en application du paragraphe (1), dans l’extrait faisant
preuve du contenu d’un tel certificat ou encore dans le bref ou document
délivré en vue de la perception d’un montant attesté dans un tel certificat,
il suffit, à toutes fins utiles :
a)
d’une part, d’indiquer, comme montant payable par le débiteur, le total des
montants payables par celui-ci et non les montants distincts qui forment ce
total;
b)
d’autre part, d’indiquer de façon générale le taux d’intérêt ou de pénalité
applicable aux montants distincts qui forment le montant payable comme étant
:
(i)
dans le cas d’intérêts, des intérêts calculés au taux réglementaire en
application de la présente partie sur les montants payables au receveur
général, sans détailler les taux d’intérêt ou de pénalité applicables à
chaque montant distinct ou pour une période donnée,
(ii)
dans le cas d’une pénalité, une pénalité de 6 % par année sur les montants
payables au receveur général.
***
Cotisation
317.
(9) Le ministre peut établir une cotisation pour un montant qu’une personne
doit payer au receveur général en vertu du présent article. Dès l’envoi de
l’avis de cotisation, les articles 296 à 311 s’appliquent, compte tenu des
adaptations de circonstance.
|
Federal
Courts Rules,
SOR/98-106 Règles des Cours fédérales, DORS/98-106
|
257.
Within 60 days after the close of pleadings, the solicitors for the parties
shall discuss the possibility of settling any or all of the issues in the
action and of bringing a motion to refer any unsettled issues to a dispute
resolution conference.
|
257.
Dans les 60 jours suivant la clôture des actes de procédure, les avocats des
parties discutent de la possibilité de régler tout ou partie des questions en
litige dans l’action et de présenter une requête demandant que les questions
non réglées fassent l’objet d’une conférence de règlement des litiges.
|
Automobile
Insurance Act,
R.S.Q. c. A-25 Loi sur l’assurance automobile, L.R.Q. c.
A-25
|
83.28. Income replacement
indemnities are deemed to be the salary of the person receiving them and are
seizable as a debt for support in accordance with the last paragraph of
article 553 of the Code of Civil Procedure (chapter C-25), adapted as
required. Such indemnities are unseizable in respect of any other debt.
|
83.28. Les indemnités de remplacement du revenu sont réputées être le
salaire du bénéficiaire et sont saisissables à titre de dette alimentaire
conformément au deuxième alinéa de l’article 553 du Code de procédure civile
(chapitre C-25), compte tenu des adaptations nécessaires. À l’égard de toute
autre dette, ces indemnités sont insaisissables.
|
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