Dockets:
ITA-13319-02
ITA-13320-02
[ENGLISH TRANSLATION]
Citation: 2005 FC
1657
Ottawa, Ontario,
December 5, 2005
Present:
THE HONORABLE MR. JUSTICE
GAUTHIER
In
the matter of the Income Tax Act,
In the
matter of an assessment or assessments
by the Minister of National Revenue under one or more
of
the following statutes: the Income Tax Act, the Canada
Pension
Plan and the Employment Insurance Act,
AGAINST:
ROGER
BLOUIN
Judgment
Debtor
AND:
ANNE-MARIE
BLOUIN
ROSE-HÉLÈNE
BLOUIN
MADELEINE
BLOUIN
Garnishees
and
Opposing
Parties
AND:
NATIONAL
BANK OF CANADA
Garnishee
REASONS
FOR ORDER AND ORDER
[1] Her
Majesty the Queen (the seizing creditor) requests that the Court issue a final
order confirming the garnishment provisionally directed by order of Justice
Michel Beaudry on March 4, 2003, in respect of the following three National
Bank of Canada investment certificates:
i)
certificate number
555134565403 in the amount of $77,253.24 issued in the name of Madeleine
Tardif-Blouin;
ii)
certificate number
555134561475 in the amount of $106,460.22 issued in the name of Rose-Hélène Blouin;
iii)
certificate number
555134561327 in the amount of $94,125.00 issued in the name of Anne-Marie
Blouin.
[2] Further
to declaring that they do not owe any amount whatsoever to Roger Blouin, the
judgment debtor, Madeleine Tardif-Blouin, Rose-Hélène Blouin, and her sister,
Anne-Marie Blouin filed objections to the garnishment under section 597 of
the Code of Civil Procedure, CQLR c. C-25. Responding to these
objections, the seizing creditor requests that the Court declare void all money
transfers made by Roger Blouin to the opposing parties, said transfers being
made in fraud of his rights. (sections 1631 et seq. of the Civil
Code of Québec, L.Q., 1991, c. 64 (C.C.Q.)). These provisions are presented
in Schedule 1.
[3] Finally,
with leave of the Court, Anne-Marie Blouin and Madeleine Tardif-Blouin made
additional applications for the Court to avoid all transactions through which
Roger Blouin claimed to have obtained loans from them and following such
annulment, declare repayments of the amounts into the opposing parties’ bank
accounts as not constituting an onerous contract, a gratuitous contract or
payments made pursuant to such contract under sections 1631 et seq. of
the C.C.Q.
BACKGROUND
[4] Madeleine
Tardif-Blouin is the mother of the debtor, Roger Blouin. On May 15, 2000, the
Superior Court of Quebec homologated a protection mandate she had given in
anticipation of incapacity pursuant to sections 2165 and 2166 of the C.C.Q.
After Jacques-François Blouin, the debtor’s brother, declined the
responsibility, Roger Blouin was confirmed as guardian and curator to Madeleine
Tardif-Blouin and her estate until he himself abdicated the responsibility in
June 2005 when Jacques-François Blouin took over.
[5] Anne-Marie
Blouin is the aunt of the debtor, Roger Blouin On November 23, 1998, she was
involved in a serious accident which left her completely incapacitated. Since
March 1999, she been staying at the Manoir Le Château. On April 18, 2001, she signed
a general mandate entrusting the administration of her estate to Roger Blouin.
In his affidavit, Jacques-François Blouin explains that he did not think it
wise to file for the homologation of an incapacity mandate at that time.
[6] However,
on July 30, 2002, a physician officially concluded that Madame Blouin was
suffering from confusion and was no longer able to take care of herself and her
business. On November 12, 2002, the Superior Court of the district of Québec
City homologated the mandate she had given in anticipation of her incapacity,
naming Jacques-François Blouin as mandatary to her property and person.
[7] It
appears that Roger Blouin subsequently continued to act as a de facto
representative of his aunt, Anne-Marie, with the consent of Jacques-François
Blouin, since the former was already charged with the management of the estates
of his other aunt, Rose-Hélène, and that of his mother, Madeleine.
Jacques-François Blouin has, since June 22, 2005, has been exercising his
mandate by a notarial deed.
[8] For
her part, Roger Blouin’s second aunt, Rose-Hélène Blouin, who is also the third
opposing party, is over 80 years old, and has never been declared
incapacitated. Roger Blouin administers her estate pursuant to a notarized
general mandate dated December 3, 1999, which remains in force.
[9] In
his affidavit of March 19, 2003, Roger Blouin indicates that he borrowed the
following amounts from his mother and aunts:
i) Madeleine
Tardif-Blouin March 3, 2000
$35,000
June 9, 2000
$15,000
December 27, 2000 $19,000
Total
$69,000
ii) Rose-Hélène
Blouin June 9, 2000
$42,000
June 14, 2000
$28,000
December 27, 2000 $25,000
Total
$95,000
iii) Anne-Marie
Blouin January 21, 2001
$90,000
Total
$90,000
[10] The
cheques that Roger Blouin made payable to himself for said amounts were entered
into evidence, as was a letter of June 9, 2000, signed in the presence of his
wife, Francine Blouin, and Jacques-François Blouin, as witnesses. In said
letter, Roger Blouin acknowledges a debt of $42,000 owed to Rose-Hélène Blouin
and specifies that this amount was deposited in Roger Blouin’s name to account
number 511432 at the General Trust of Canada.
[11] In
another document dated August 5, 2000, Roger Blouin, in the presence of
Francine Blouin and Jacques-François Blouin as witnesses, recognizes a debt of
$50,000 owed to Madeleine Tardif or her successors ($35,000 on May 3, 2000, and
$15,000 on June 9, 2000).
[12] The
opposing parties also submitted several documents and affidavits in a bid to
establish the source of the amounts, which they claimed had been sitting in
their accounts well before 1997.
[13] Roger
Blouin attests that he borrowed those amounts to allow them to be consolidated
with his personal assets and to have them managed privately by General Trust of
Canada, where a minimum investment of $500,000[1] is required in order
to obtain the highest returns for the entire investment portfolio. He states
that he had to pay the opposing parties 5% in interest on the capital amount,
and that he intended to keep any additional profits accruing. According to him,
a 5% interest was higher than what the three opposing parties had received on
their investments to that point.
[14] In
January 2001, the Canada Customs and Revenue Agency launched an investigation
into the accounts of Roger Blouin and of the two companies in which he holds
shares, i.e. Les Placements Roger Blouin Inc. and 2735-5577 Québec Inc. Roger Blouin
was informed of this on January 24, 2001.
[15] After
receiving several assessment notices covering the reporting period ending
November 30, 1997, and particularly that of October 21, 2002, Mr. Blouin admits
in the affidavits filed in the opposing parties’ applications, that he had
requested that to protect the capital of Anne-Marie Blouin, Rose-Hélène Blouin
and Madeleine Tardif-Blouin, General Trust of Canada should liquidate his
long-term investments.
[16] However,
after General Trust of Canada had disposed of the investments, a deposit
totalling $404,281.83 was made in the name of Roger Blouin to an account that
had recently been opened at the Sainte-Anne-de-Beaupré branch of the National
Bank of Canada, ostensibly to facilitate funds transfers to the three opposing
parties, who had long had accounts at the same National Bank of Canada branch.
[17] Of
that amount, a total of $277,838.,35 was transferred on December 3, 2002, and
according to Roger Blouin, that represented the borrowed capital plus interest
of 5%:
Madeleine
Tardif-Blouin:
$77,253,25
Rose-Hélène
Blouin:
$106,460,22
Anne-Marie
Blouin:
$94,125
[18] The
$126,443.58 balance in Roger Blouin’s personal account at the National Bank was
seized by the seizing creditor and applied to the payment of certificates
registered by the latter.
[19] In
fact, on December 19, 2002, the seizing creditor submitted to the Court, in docket
ITA-13320-02, a certificate issued under the Income Tax Act, R.S.C.
(1985), c. 1 (5th Suppl.) (the Act) against Roger Blouin
for the sum of $402,021.26, as well as another certificate in docket
ITA-13319-02 for the sum of $529,189.68.
[20] The
provisional garnishment order by Beaudry J. was issued in the framework of the
execution of these certificates.
[21] Be
it also noted that Tremblay-Lamer J. on December 19, 2002, issued an
authorization to proceed forthwith under section 225.2(2) of the Act and
that on February 18, 2003, Pinard J. dismissed the application by the judgment
debtor, Roger Blouin, for a review of said authorization (section 225.2(8) of
the Act).
[22] In
seeking to obtain this authorization to proceed forthwith from Tremblay-Lamer
J., the seizing creditor submitted, inter alia, a summary of a September
20, 2002, meeting prepared by Martin Desgagnés, account manager at General
Trust. During that meeting, the judgment debtor presumably mentioned his
tax-related problems to Mr. Desgagnés, and that he preferred not to have
anything in his name in order to protect his assets in the event of a
bankruptcy. He is said to have proposed certain scenarios, including
bankruptcy, transforming his RRSP into an unseizable RRSP, creating a trust
with no named beneficiary and returning the funds to his aunts’ names [translation] “arguing they were loans”.
Mr. Desgagnés also indicates that the amounts were obtained from investments
held in the names of Mr. Blouin’s aunts. Based on that document, the seizing
creditor argued that the amounts in the opposing parties’ accounts have in fact
always belonged to the borrower.
[23] Both
Roger Blouin and Mr. Desgagnés have since been cross-examined.
ISSUES
[24] The
Court must decide the following issues:
1) did
the money seized belong to the judgment debtor, Roger Blouin?
2) is
repayment or transfer of the amount of $277,838.35 enforceable against the
seizing creditor?
[25] For
the reasons I will provide hereinafter, the Court does not have jurisdiction to
rule on the validity of the transactions referenced by the additional
applications by Madeleine and Anne-Marie Blouin. Therefore, this matter will
not be considered.
ANALYSIS
Jurisdiction
[26] As
indicated by the Federal Court of Appeal in Canada (M.N.R.) v. Gadbois,
[2002] F.C.J. No. 836 (F.C.A.) (QL), there is no doubt that the Court has the
power to execute its rulings and that it may be called upon in an incidental
manner to rule on provincial law matters arising from such execution. Duly
registered Minister’s Certificates are deemed to constitute rulings by the
Court (subsection 223(3) of the Act). I am thus satisfied that the Court has
the jurisdiction to declare the transfers or repayments of December 3, 2002,
unenforceable against the seizing creditor, where the latter is able to
establish that the criteria stipulated in sections 1631 et seq. of the
C.C.Q. have been met.
[27] On
the other hand, the Court is not satisfied that it has jurisdiction to avoid
these acts which, according to Madeleine Blouin and Anne-Marie Blouin, were
carried out while they were incapacitated and while Roger Blouin knew of their
incapacity (see Gadbois, above, at paragraphs 19, 21 and 22). This
extends beyond what is required to ensure that these certificates are duly
executed.
Did
the money seized belong to the judgment debtor?
[28] During
the hearing, the parties focused their arguments on the application by the
seizing creditor to have the transfer or repayment of the money “borrowed” by
Roger Blouin declared unenforceable because it was in fraud of his rights.
However, the seizing creditor did not formally waive the first argument he
raised, which is that the money withdrawn from the accounts effectively
belonged to Roger Blouin.
[29] After
careful analysis of the evidence on the record, the Court is satisfied that
even considering the seizing creditor’s responses on the matter, the opposing
parties established by preponderance of evidence that the money that was
transferred from their accounts through cheques made out to Roger Blouin (See paragraph
10, above), was rightfully theirs.
[30] The
Court must therefore consider the question of unenforceability while assuming
that the money transfers to Roger Blouin made between March 3, 2000 and January
21, 2001 (see paragraph 9 above), were indeed borrowed as alleged. The only
other alternative would be to consider that Roger Blouin took possession of
these funds illegally, as alleged by the opposing parties in their additional
application. As indicated, the Court does not have jurisdiction to make that
determination. In any case, this alternative would not unburden the seizing
creditor.
Unenforceability
of the repayments or transfers
[31] Section
1631 of the C.C.Q. provides as follows:
A
creditor who suffers injury through a juridical act made by his debtor in fraud
of his rights, in particular an act by which the debtor 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.
[32] Action
by the seizing creditor is not required in order for him to benefit from this
remedy. The procedural vehicle used is inconsequential and as herein, can
render opposition to the seizure unenforceable (National Bank of Canada v.
Bitar, [2000] J.Q. No. 471 (C.A.)[2], at paragraph 37).
[33] However,
just like the former Paulian appeal, an unenforceability appeal is subject to
strict conditions. It is not worthwhile discussing what has not been debated
before me.
[34] The
opposing parties dispute that the creditor owes a liquid and exigible debt
(section 1632 of the C.C.Q.) and that Roger Blouin’s insolvency has been
established. They equally argue that it has not been shown by preponderance of
evidence that they had a fraudulent intention or were active participants in
this fraud. They hold that the Court cannot therefore declare transfers they
received to be unenforceable against the seizing creditor.
[35] The
seizing creditor submits that it is section 1631 of the C.C.Q. that stipulates
the conditions for the exercise of this remedy. He believes that once it has
been established that the transfer was made in fraud of his rights, the burden
of proof of good faith falls on the opposing parties.
[36] The
Court is satisfied that the seizing creditor owes a due and payable debt
because duly registered Minister’s certificates are deemed to constitute
rulings by the Court (subsection 223(3) of the Act). Filing a notice of
appeal of a notice of assessment does not change this situation.
[37] On
the matter of Roger Blouin’s insolvency, as indicated by the Quebec Court of
Appeal through its adoption of the position of authors Jean-Louis Baudouin and
Pierre-Gabriel Jobin at paragraph 40 of its ruling in Bitar, above:
[translation]
The
existence of insolvency is a question of fact left to the sole discretion of
the courts. The latter have always refrained from limiting themselves to a very
rigorous definition and to adopt the technical definitions provided in the Bankruptcy
and Insolvency Act or in the Winding-Up and Restructuring Act. To
some authorities, insolvency is simply the state of a person’s liabilities
exceeding his assets. Generally speaking, jurisprudence adopts a broad view and
recognizes anyone who has stopped honouring his commitments as they become due
or who is unable to meet his responsibilities or pay his debts as insolvent.
Being an “accounting fact”, insolvency must be proven by all means of evidence,
even by direct testimony.
[38] The
Court is satisfied that the seizing creditor has established that the sum of
Roger Blouin’s assets was insufficient to enable him to pay his debts,
including his 1997 tax debt, on that date.
[39] The
opposing parties submitted no evidence to contest the assessment of Roger
Blouin’s assets contained at paragraph 24 of André Tremblay’s affidavit of
August 29, 2003.
[40] Furthermore,
as indicated by the authors cited above in Les Obligations, 5th Edition,
Les Éditions Yvon Blais inc., 1998, at paragraph 711, insolvency is no longer
the sole measurement of prejudice required under section 1631 of the C.C.Q.
[41] There
is no doubt that the seizing creditor essentially incurred damages as a result
of the transfers of December 3, 2002.
[42] With
regard to the matter of the opposing parties’ intention to defraud, the Quebec
Court of Appeal in Bitar, above, clearly decided that the presumption
in section 1632 of the C.C.Q. was a rebuttable presumption, and that
unenforceability could not be entertained against third parties where they have
proven good faith, even where they had knowledge of the debtor’s insolvency.
Such a position necessarily means that to successfully claim unenforceability,
the creditor must prove that the third party was preferred to him intended to
act fraudulently.
[43] The
Court of Appeal of Quebec further reconfirmed this position in St-Cyr (Re),
[2002] Q.J. No. 3569, at paragraphs 21 to 24.
[44] To
facilitate proof that the debtor and third party had fraudulent intentions,
legislation includes a number of presumptions.
[45] In
the situation under consideration, that is, one involving the performance of an
onerous contract, the intention of the opposing parties is deemed fraudulent if
they knew of the insolvency of the debtor or of the fact that the latter was
rendering or seeking to render himself insolvent by repaying them.
[46] The
debtor, on the other hand, will be deemed to have fraudulent intentions if it
is demonstrated that he rendered himself or sought to render himself insolvent
by moving these monies or preferred the opposing parties, despite full
knowledge of his insolvency.
[47] The
Court is satisfied that the seizing creditor has established that the debtor
intended fraud. The evidence (for example, the liquidation of investments at
General Trust at a loss before their due date, discussions with Mr. Desgagnés,
family relations, Roger Blouin’s affidavits and cross-examination) appears to
indicate that Roger Blouin considered himself insolvent and sought to prefer
his mother and aunts. As I have already emphasized, Roger Blouin also admitted
as much in his affidavits of March 19, 2003 (see paragraph 23 of the opposing
party Anne-Marie Blouin’s record, paragraph 29 of the opposing party Rose-Hélène
Blouin’s recod and paragraph 25 of Madeleine Tardif-Blouin’s record).
[48] What
remains now is to determine if the seizing creditor has established an
intention to defraud by the opposing parties.
[49] The
seizing creditor argues that he benefits from the presumptions in section 1632
of the C.C.Q. because Roger Blouin’s knowledge of his own insolvency must apply
to the opposing parties over whom he has an incapacity mandate.
[50] In
fact, in his additional written claims, the seizing creditor indicates that the
payments of December 3 were legal actions in which Roger Blouin wore two hats:
firstly, as a debtor and secondly, as the creditors’ representative.
[51] He
emphasizes that this situation is exceptional as it is a breach of mandate
rules. In fact, under normal circumstances, a representative cannot be party to
an act concluded in the name of his mandator and should therefore not wear two
hats. However, he adds that Roger Blouin is responsible for finding himself in
this unfortunate situation and should not benefit from it.
[52] The
seizing creditor submits that the Court should follow the ruling by the Supreme
Court of Canada in Wilks v. Matthews (1913), 49 S.C.R. 91, where
the Court deemed that the preferred third party knew about the insolvency of
the person he had authorized to receive payments on his behalf, in this case
his wife.
[53] The
seizing creditor further argues that the general mandate issued by Rose-Hélène
Blouin to Roger Blouin expressly states at paragraph 7 a) that the latter is
authorized to receive payments on her behalf.
[54] In
the case of Madeleine Tardif-Blouin and Anne-Marie Blouin, the seizing creditor
argues that both were incapacitated on December 3, 2002, and that since payment
is a legal act, Roger Blouin must be deemed to have represented them.
[55] As
is apparent from Pierre Painchaud’s affidavits submitted by the seizing
creditor, the transactions they are seeking to have the Court declare
unenforceable are transfers made by Roger Blouin from his private account into
the private bank accounts of each opposing party and not payments he received
on their behalf into his own account.
[56] Under
the circumstances, it is clear that Rose-Hélène Blouin had the full capacity to
receive the transfer or repayment from Roger Blouin. This action has nothing to
do with the general mandate that authorizes Roger Blouin to represent her
before third parties. The authorization paragraph 7 a) of the mandate enables
third parties to make payments to Roger Blouin as an authorized representative under
subsection 1557(1) of the C.C.Q.; nevertheless, it does not remove Rose-Hélène
Blouin’s capacity to receive such payments directly. And as I stated, the
transfer was indeed made to her directly on December 3, 2002.
[57] In
the present context, the Court cannot presume that Rose-Hélène Blouin knew of
her nephew’s insolvency merely because they are blood relations. There is no
other evidence to buttress this conclusion.
[58] Since
the seizing creditor has not proved that Rose-Hélène Blouin was in the know, he
cannot benefit from the presumption under section 1632 of the C.C.Q. and has
therefore not met the burden to prove fraudulent intention on the part of the
creditor who was preferred to him. The seizure of certificate number
555134561475 must be avoided.
[59] Let
us now move on to the acts involving the other two opposing parties. None of
the decisions cited by the seizing creditor, including Wilks, above,
concerns a situation involving incapacity. The seizing creditor also admits
that there is no precedent in which knowledge of the personal circumstances of
the authorized representative was assimilated to the person issuing the mandate
based on information the latter obtained within the framework of the mandate.
[60] These
distinctions are important, and the Court is not convinced that the principles
of Wilks, above, are applicable to this case.
[61] Whatever
the case, the parties agree that even if the opposing parties are legally
incapacitated, they still retain the ability to receive payments, if this
action can be considered as a juridical fact. However, they do not agree on the
nature of the payment.
[62] As
indicated by Pierre-Gabriel Jobin and Nathalie Vézina in Les
obligations, 6th Edition, 2005, at paragraph 673, the
nature of payments gave rise to a controversy in doctrine and jurisprudence.[3] Some
consider it as a mere juridical fact, which can be proven by any means, while
others consider it to be a juridical act, for which evidence is subject to the
rules stipulated under sections 2860 et seq. of the C.C.Q. The parties
agree however, that the doctrinal debate has never been examined from its
present perspective.
[63] Payment
is a mode of execution common to all obligations. According
to Maurice Tancelin in Des obligations : actes et responsabilités, 6rd Edition,
1997, at page 586:
[translation]
Execution,
just like its opposite, non-execution, is a juridical fact meaning it is a
concrete action to which the law attributes certain consequences.
Payments
can be broken down into two distinct components: the concrete component, which
enables its consideration as a juridical fact and the intentional component,
which also makes it a juridical act.
[64] The
evidence before me only establishes the concrete payment component, that is,
the physical transfer of funds directly into the opposing parties’ accounts on
December 3, 2002. There is no indication that in this case, the opposing
parties had to waive the benefit of a term or other conditions. None of the
parties has stipulated that Roger Blouin had released himself by abandoning
such conditions on behalf of the opposing parties. This notwithstanding, the
seizing creditor argues that the Court should find that the opposing parties
could not validly receive payments without the intervention of their representative.
[65] However,
irrespective of the juridical status of the payment, section 1558 of the C.C.Q.
establishes a special rule in favour of the creditors of an incapacitated
person since it confirms the validity of any payment made directly to such
person provided he benefits from the payment.
[66] It
is therefore possible that we are facing a situation involving an execution
with legally recognized consequences, even where the representative of the opposing
parties does not intervene.
[67] The
seizing creditor did not provide any evidence to justify the conclusion that
section 1558 of the C.C.Q. cannot apply in this situation. If the seizure were
set aside, then everything would indicate that the opposing parties benefited
from the payment. They clearly did not deplete that money.
[68] The
Court cannot take it for granted that Roger Blouin had to intervene. There is
thus no evidence that the two opposing parties had personal direct or inferred
knowledge of the debtor’s insolvency. The presumption in section 1632 of the C.C.Q.
is thus inapplicable.
[69] Although
Roger Blouin’s behaviour is clearly reprehensible, it does not rise to the
level of causing the transfers to be unenforceable against the seizing
creditor. Participation by Madeleine Tardif-Blouin and Anne-Marie Blouin has
not been shown.
[70] I
therefore find that the Court cannot declare the transfers made to Madeleine
Tardif-Blouin and Anne-Marie Blouin to be unenforceable against the seizing
creditor.
[71] The
seizures against certificates number 555134565403 and 555134561327 must also be
avoided.
[72] The
opposing parties applied for costs. The Court notes that the issues raised in this
case were new and that for various reasons, the parties had to collaborate
closely for adjudication of the applications. After consideration of all
relevant factors, the Court finds that each party must bear their respective costs
in this case.
ORDER
THE COURT ORDERS as follows:
1. The three objections are
allowed;
2. The seizure of certificates
of deposit bearing numbers 555134565403, 555134561475 and 555134561327,
following a requirement on December 20, 2002, and amended on February 7, 2003,
is avoided;
3. Each party will bear their
own costs.
“Johanne Gauthier”
Judge
APPENDIX
1
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|
|
Civil code of
Quebec,
S.Q., 1991, c. 64 :
1558. Payment
made to a creditor without capacity to receive it is valid only to the extent
of the benefit he derives from it.
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.
|
Code civil du
Québec,
L.Q., 1991, ch. 64 :
1558. Le
paiement fait à un créancier qui est incapable de le recevoir ne vaut que
dans la mesure où il en a profité.
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.
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Income Tax Act,
R.S.Q. 1985, c.1 (5th Supp.) :
152.(8)
An assessment shall, subject to being varied or vacated on an objection or
appeal under this Part and subject to a reassessment, be deemed to be valid
and binding notwithstanding any error, defect or omission in the assessment
or in any proceeding under this Act relating thereto.
222.(2)
A tax debt is a debt due to Her Majesty and is recoverable as such in the
Federal Court or any other court of competent jurisdiction or in any other
manner provided by this Act.
(3) The
Minister may not commence an action to collect a tax debt after the end of
the limitation period for the collection of the tax debt.
223. (2)
An amount payable by a person (in this section referred to as a
"debtor") that has not been paid or any part of an amount payable
by the debtor that has not been paid may be certified by the Minister as an
amount payable by the debtor.
(3) On production
to the Federal Court, a certificate made under subsection 223(2) 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 thereon to the day of payment as provided by
the statute or statutes referred to in subsection 223(1) under which the
amount is payable and, for the purpose 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, enforceable in the amount certified plus
interest thereon to the day of payment as provided by that statute or
statutes.
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Loi de l'impôt
sur le revenu, L.R.C. (1985), ch. 1 (5e suppl.)
:
152.(8)
Sous réserve des modifications qui peuvent y être apportées ou de son
annulation lors d'une opposition ou d'un appel fait en vertu de la présente
partie et sous réserve d'une nouvelle cotisation, une cotisation est réputée
être valide et exécutoire malgré toute erreur, tout vice de forme ou toute
omission dans cette cotisation ou dans toute procédure s'y rattachant en
vertu de la présente loi.
222.(2)
La dette fiscale est une créance de Sa Majesté et est recouvrable à ce titre
devant la Cour fédérale ou devant tout autre tribunal compétent ou de toute
autre manière prévue par la présente loi.
(3) Une action
en recouvrement d'une dette fiscale ne peut être entreprise par le ministre
après l'expiration du délai de prescription pour le recouvrement de la dette.
223. (2)
Le ministre peut, par certificat, attester qu'un montant ou une partie de
montant payable par une personne -- appelée "débiteur" au présent
article -- mais qui est impayé est un montant payable par elle.
(3) Sur
production à la Cour fédérale, un certificat fait en application du
paragraphe (2) à l'égard d'un débiteur est enregistré à cette cour. 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 courus jusqu'à la date du paiement comme le prévoit les
lois visées au paragraphe (1) en application desquelles le montant est
payable, et toutes les procédures peuvent être engagées à la faveur du
certificat comme s'il s'agissait d'un tel jugement. Dans le cadre de ces
procédures, le certificat est réputé être un jugement exécutoire rendu par
cette cour contre le débiteur pour une dette envers Sa Majesté du montant attesté
dans le certificat, augmenté des intérêts courus jusqu'à la date du paiement
comme le prévoit ces lois.
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FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKETS:
ITA-13319-02
ITA-13320-02
STYLE
OF CAUSE: TAXATION
against
ROGER BLOUIN
-and-
ANNE-MARIE BLOUIN
ROSE-HÉLÈNE BLOUIN
MADELEINE BLOUIN
-and-
NATIONAL BANK OF CANADA
PLACE
OF HEARING: Québec City, Quebec
REASONS
FOR ORDER:
The Honourable Johanne Gauthier
AND
ORDER
DATED:
December 5, 2005
APPEARANCES:
Sophie
Matte
FOR
THE SEIZING CREDITOR
Hugues
LaRue
FOR
THE JUDGMENT DEBTOR AND GARNISHEES
SOLICITORS
OF RECORD:
John
H. Sims, Q.C.
FOR
THE SEIZING-CREDITOR
The
Deputy Attorney General of Canada
Pothier
Delisle
FOR THE JUDGMENT DEBTOR AND
GARNISHEES
Sainte-Foy,
Quebec
[1] In his affidavit, Guy
de Rico, an employee of the National Bank of Canada’s Sainte-Anne-de-Beaupré
branch, where the assets of the three opposing parties were located, confirmed
that he was the one who had suggested that Roger Blouin meet an employee of the
Trust to help him better understand private management products, considering
the amount of money he was managing. He confirms that these services are
offered to clients with assets of over $500,000.
[2] Also referred to as National
Bank v. Soracchi.
[3] N. Catala, La nature
juridique du paiement, Paris, L.G.D.J., 1961.
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