Denault,
J.:
—The
garnishee
has
applied
for
revocation
of
judgment
and
is
seeking
to
be
relieved
of
its
failure
to
make
a
declaration
upon
service
of
a
seizure.
The
party
seeking
rescission
argued
that
there
was
a
postal
delay,
while
the
party
subject
to
the
rescission
argued
that
the
debt
was
not
payable.
The
parties
filed
written
submissions
with
the
Court
and
asked
that
the
case
be
decided
under
Rule
324,
without
personal
appearance
by
counsel.
We
should
review
the
facts
briefly.
On
June
30,
1989,
a
certificate
was
filed
with
this
Court
indicating
that
Automobile
Norvoie
Inc.
was
indebted
to
the
Department
of
National
Revenue
in
the
amount
of
$11,047.31
plus
interest,
compounded
daily.
On
October
10,
1989,
payment
not
having
been
made,
the
Department
of
National
Revenue
obtained
an
interim
seizure
order
compelling
the
garnishee
to
appear
before
this
Court
at
Ottawa
on
November
14,
1989
to
declare
the
amounts
of
money
owing
by
it
to
the
judgment
debtor.
It
appears
from
the
application
for
revocation
of
judgment
and
the
affidavit
of
the
garnishee
in
support
that
on
November
6,
1989
the
garnishee
made
its
declaration
which
it
sent
to
the
Court
Registry
in
Ottawa.
A
letter
from
its
solicitor
dated
November
6,
1989
indicates
that
the
document
arrived
at
the
Court
only
on
November
20,
1989.
On
November
14,
unaware
that
the
debtor
had
filed
a
declaration,
Muldoon,
J.
granted
a
final
order
of
seizure.
When
the
garnishee
was
advised
of
this
judgment,
it
filed
this
application
for
revocation
of
judgment,
for
an
extension
of
time,
and
to
be
relieved
from
its
failure
to
make
a
declaration,
relying
on
Rules
337(5)(b)
and
2300(5)
of
the
Rules
of
this
Court
and
Article
634
of
the
Code
of
Civil
Procedure.
I
believe
that
the
reference
to
Rule
337(5)(b)
is
inappropriate,
because
this
is
clearly
not
a
case
in
which
"some
matter
that
should
have
been
dealt
with
has
been
overlooked
or
accidentally
omitted”
by
the
Court.
This
rule,
which
is
known
as
the
“slip
rule",
operates
only
to
permit
a
judgment
to
be
corrected
by
the
judge
who
pronounced
it,
if
it
is
not
consistent
with
the
reasons
given
or
if
it
does
not
deal
with
a
matter
which
was
before
the
Court.
As
it
happens,
the
rules
relating
to
seizures
(2300
to
2303)
do
not
cover
the
case
at
bar,
and
we
must
turn
to
Rule
5,
which
refers
us
to
the
final
paragraph
of
Article
634
of
the
Code
of
Civil
Procedure:
A
garnishee
may,
however,
obtain
leave
to
make
his
declaration
at
any
time,
even
after
judgment,
upon
payment
of
all
costs
incurred
by
his
default.
In
this
case,
I
believe
that
the
judgment
pronounced
against
the
garnishee
upon
its
failure
to
make
its
declaration
is
not
attributable
to
any
fault
of
the
garnishee,
but
rather
to
Canada
Post,
which
took
14
days
to
deliver
a
letter
from
La
Sarre
to
Ottawa.
The
garnishee
must
therefore
be
relieved
of
its
failure
to
make
its
declaration.
However,
it
is
probable
that
if
another
postal
service
(registered
mail,
priority
post)
had
been
used,
the
declaration
would
have
been
delivered
on
time
and
accordingly
the
garnishee
must
pay
the
costs
incurred
by
its
default
which,
in
any
event,
are
required
under
the
provisions
of
article
634.
It
remains
to
decide
the
case
on
its
merits.
In
both
the
declaration
of
November
6,
1989
and
the
declaration
in
support
of
its
application
for
revoca
tion,
the
president
of
the
garnishee
submitted
that
his
company's
debt
to
the
judgment
debtor
was
not
payable.
He
relied
on
a
contract
of
sale
of
the
assets
of
the
business
which
the
parties
entered
into
on
February
8,
1985,
under
the
terms
of
which
Radiateur
La
Sarre
Inc.,
now
known
by
the
business
name
Automobile
Norvoie
Inc.
(the
judgment
debtor)
sold
the
assets
of
its
business
repairing
and
selling
radiators
to
Radiateur
La
Sarre
(1985)
Inc.
The
contract
states
that
the
purchaser
(the
garnishee)
paid
$60,000
cash
and
agreed
to
pay
the
balance
($15,000)
to
the
judgment
debtor
[Translation]
"without
any
fuller
provision
for
the
method
of
repayment
and
without
interest”.
This
clause
was
included
in
order
that
the
garnishee
itself
could
decide
when
it
should
repay
the
judgment
debtor.
The
garnishee
believes
that
the
$15,000
debt
does
not
really
exist
since
there
is
no
obligation
to
repay
it
at
a
specific
time
and
payment
depends
entirely
on
the
will
of
I
the
garnishee.
It
also
believes
that
if
the
parties
had
truly
intended
to
create
a
mutual
obligation
with
respect
to
the
$15,000,
they
would
certainly
have
agreed
on
some
penalty
in
the
event
of
non-payment,
which
they
did
not
do.
In
short,
it
believes
that
it
could
decide
never
to
pay
the
debt
without
risking
any
penalty
and
that,
in
law,
this
is
an
obligation
that
is
conditional
purely
on
the
will
of
the
party
promising
and
is
therefore
void
(Article
1081
of
the
Civil
Code).
The
judgment
creditor
argues,
on
the
contrary,
that
according
to
the
very
terms
of
the
deed
of
sale
of
the
assets,
this
is
not
an
obligation
which
is
conditional
purely
on
the
will
of
the
party
promising,
but
rather
an
obligation
with
a
term
(Article
1089
of
the
Civil
Code).
Thus
it
is
an
obligation
where
the
debtor
agrees
to
pay
not
if
it
wishes,
but
when
it
can.
A
period
of
more
than
four
and
a
half
years
has
passed
since
the
sale
of
the
assets,
and
so
the
judgment
creditor
believes
that
enough
time
has
been
allowed
and
the
debt
is
now
due
and
payable.
We
read
in
the
literature
that
[Translation]
"a
person
who
agrees
to
perform
an
obligation
'if
he
or
she
wishes'
makes
no
genuine
and
serious
undertaking,
since
that
person
alone
has
the
power
to
perform
the
obligation,
at
his
or
her
discretion
or
whim.
Such
a
condition
is
classically
known
as
a
condition
that
is
dependent
purely
on
the
will
of
the
party
promising
[condition
purement
potestative]
and
in
theory
the
result
is
that
the
obligation
thereunder
is
void"
.
The
same
author
writes
that
“a
debtor's
obligation
to
pay
'when
he
can'
is
not
a
conditional
obligation
dependent
on
his
will
[obligation
conditionnelle
potestative],
but
rather
an
obligation
with
a
term
[obligation
à
terme]"
.
Such
a
condition
is
then
[Translation]
"subject
to
an
indefinite
term
which
the
court
may
be
asked
to
establish"
.
In
this
case,
I
find
on
reading
the
contract
for
the
sale
of
the
assets
and
the
affidavit
of
the
president
of
the
garnishee
that
this
was
indeed
an
obligation
with
a
term
and
not
an
obligation
dependent
purely
on
the
will
of
the
party
promising.
While
the
parties
to
the
contract
did
not
provide
for
any
method
of
repaying
the
$15,000
balance
of
the
sale
price,
they
did
provide
that
in
the
event
of
the
sale
of
the
immoveable
property
the
vendor
would
be
entitled
to
demand
immediate
repayment
of
the
balance
of
the
sale
price.
The
vendor
also
intended
to
protect
the
balance
of
its
sale
price
by
taking
back
a
mortgage
for
that
amount,
and
by
including
clauses
providing
for
insurance,
rent
transfer
and
payment
in
the
event
of
failure
by
the
purchaser
to
comply
with
all
the
clauses
and
conditions
of
the
contract.
The
purchaser
further
reserved
the
privilege
to
repay
the
balance
of
the
purchase
price
early.
[Translation]
"without
notice
or
compensation”.
Furthermore,
the
president
of
the
garnishee
did
not
deny
that
this
debt
existed,
but
argued
that
the
absence
of
any
repayment
method
was
designed
to
permit
the
garnishee
to
decide
itself
when
it
should
repay
the
debtor.
He
added
that
no
precise
date
had
yet
been
decided
for
repayment
of
the
amount,
and
in
the
detailed
affidavit
in
support
of
his
application
he
added
that
his
company's
financial
situation
is
still
precarious
and
it
is
therefore
not
possible
for
him
to
repay
the
$15,000
debt,
even
if
it
were
payable.
In
light
of
all
these
facts,
it
appears
to
me
to
be
clear
that
the
parties
agreed
to
an
obligation
with
a
term,
although
the
term
was
not
specified,
and
that
contrary
to
what
counsel
for
the
garnishee
argued,
this
was
not
an
obligation
dependent
purely
on
the
will
of
the
party
promising.
The
due
date
for
the
debt
may
therefore
be
decided
by
the
Court,
taking
into
account
all
the
circumstances
.
In
this
case,
more
than
five
and
a
half
years
have
now
passed
since
the
obligation
was
contracted
by
the
garnishee,
on
February
8,
1985.
It
appears
to
me
that
this
is
a
very
reasonable
period
of
time
and
that
we
may
declare
that
the
$15,000
balance
of
the
sale
price
is
now
due
and
payable,
particularly
since
the
evidence
of
the
precarious
financial
situation
of
the
garnishee
was
not
supported
and
is
insufficient.
For
these
reasons,
the
Court,
delivering
judgment
on
the
application
for
revocation
of
judgment,
for
an
extension
of
time
and
for
relief
from
the
failure
to
make
a
declaration:
—
Relieves
the
garnishee
from
its
failure
to
make
a
declaration;
—
Permits
the
garnishee
to
file
its
declaration:
—
Declares
that
the
garnishee
is
indebted
to
the
judgment
debtor
in
the
amount
of
415,000
and
that
the
said
amount
is
now
payable;
—
Declares
that
the
amount
of
$15,000
may
be
recovered
by
seizure;
—
Confirms
the
final
order
of
seizure
made
by
the
Honourable
Mr.
Justice
Muldoon
on
November
14,
1989,
in
all
other
respects;
—
Orders
the
garnishee
to
pay
costs.
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