Pinard,
J.
[Translation]:—On
June
4,
1986,
Her
Majesty
the
Queen
in
Right
of
Canada
obtained
from
this
Court,
under
Court
number
ITA-1665-86,
a
certificate
whose
effect
was
to
guarantee
the
debt
of
the
defendant,
Transport
Voyer
Inc.,
to
the
Department
of
National
Revenue
in
the
amount
of
$21,476.39
plus
interest
over
and
above
the
annual
rate
stipulated
by
the
Income
Tax
Act.
On
the
same
occasion,
Her
Majesty
the
Queen
obtained
a
writ
of
fieri
facias
ordering
the
sheriff
of
the
Québec
Judicial
District
to
deduct
the
aforementioned
amount
from
the
moveable
property,
securities,
real
estate
and
holdings
of
Transport
Voyer
Inc.
After
having
obtained
permission
to
amend
its
opposition
during
the
hearing,
the
opposant
argued
that,
through
subrogation,
it
had
a
commercial
pledge
on
the
seized
property
as
a
result
of
three
different
deeds:
a)
a
deed
of
pledge
by
Transport
Voyer
Inc.
in
favour
of
the
National
Bank
of
Canada,
registered
on
September
21,
1981
as
number
263876;
b)
a
deed
of
pledge
by
Transport
Voyer
Inc.
in
favour
of
Mr.
Laval
Dumas,
registered
on
February
4,1983
as
number
272594;
c)
a
deed
of
pledge
by
Transport
Voyer
Inc.
in
favour
of
the
Caisse
d'Entraide
Economique
de
Portneuf,
registered
on
April
7,
1981
as
number
260525;
The
opposant
therefore
asks
to
have
the
seizure
of
the
property
listed
in
its
opposition
quashed
because
of
its
“right
of
revendication
and
of
ownership
with
regard
to
that
property",
and
also
asks
to
be
released
from
the
seizure.
The
plaintiffs,
for
Her
Majesty
the
Queen
in
Right
of
Canada,
have
submitted
a
motion
contesting
the
opposition
to
the
seizure
of
moveable
property
by
a
third
party,
requesting
both
that
the
opposition
be
dismissed
and
that
the
sale
of
the
seized
goods
be
authorized.
The
plaintiffs
were
permitted
by
consent
to
submit
this
motion
after
the
time
limit
prescribed
by
the
Quebec
Code
of
Civil
Procedure,
which
applies
in
this
case
as
a
result
of
subsection
56(4)
of
the
Federal
Court
Act.
The
basic
issue
is
to
determine
if
the
holder
of
a
commercial
pledge
has
a
right
to
revendicate
in
the
meaning
of
article
597
of
the
Quebec
Code
of
Civil
Procedure
and
to
have
the
seizure
quashed,
or
if
he
must
be
limited
to
having
the
proceeds
of
the
sale
collocated
in
accordance
with
article
604
of
that
Code.
Article
597
C.C.P.
regarding
oppositions
to
a
seizure
of
moveable
property
reads:
The
opposition
may
also
be
taken
by
a
third
party
who
has
a
right
to
revendicate
any
part
of
the
property
seized.
Article
604
C.C.P.
reads:
The
creditors
of
the
debtor,
for
any
reason,
even
for
rental,
cannot
oppose
the
seizure
or
the
sale;
they
can
only
exercise
their
privilege
upon
the
proceeds
of
the
sale,
by
opposition
for
payment.
Such
opposition
must
be
served
at
the
latest
on
the
tenth
day
after
the
sale,
and
is
made
and
contested
in
the
manner
set
forth
in
articles
600,
601
and
602.
It
is
important
to
note
right
away
that
of
the
seized
property
listed
in
the
opposition,
one
item
—"One
1968
Fruehuaf
trailer,
serial
no.
DXD
635902"
—
is
not
specified
in
any
of
the
three
deeds
of
pledge
mentioned
above.
Since
no
other
link
has
been
established
between
this
particular
item
and
the
commercial
pledges,
the
opposition
is
groundless
with
regard
to
it.
As
for
the
other
seized
property
mentioned
in
the
opposition,
nothing
in
the
case
clearly
indicates
that
the
opposant
had
taken
possession
of
the
things
pledged
for
the
purpose
of
selling
them
at
auction.
Both
the
defendant
and
the
opposant
have
their
head
offices
on
Principale
Street
in
Ri-
viere-a-Pierre,
Port-Neuf
County,
where
the
property
was
seized.
It
is
evident
from
the
certificate
of
notice
that
Jean-Charles
Voyer,
the
guardian
of
the
seized
property,
is
an
officer
of
both
the
defendant
company
and
the
opposant
company.
If
the
property
was
really
in
the
opposant's
possession,
which
once
again
has
not
been
proven,
it
can
certainly
not
be
assumed
that
it
intended
to
have
it
sold
at
auction
in
a
foreseeable
time
period
since
it
argued
in
paragraph
3
of
its
opposition
that
the
things
pledged
were
necessary
for
and
useful
to
the
running
of
its
own
business.
Whatever
the
case,
the
onus
was
on
the
opposant
to
prove
that
he
had
taken
possession
of
the
things
pledged
with
the
purpose
of
selling
them
at
auction
in
accordance
with
the
terms
of
article
1979(i)
of
the
Civil
Code.
On
this
point,
my
views
are
the
same
as
those
expressed
by
Louis
Payette
in
a
study
published
in
the
Revue
du
Barreau
(1979),
39
R.
du
B.
1032,
at
page
1040:
[Translation]
It
seems
improper
to
permit
the
creditors
of
a
pledge
without
transfer
of
possession
to
oppose
the
seizure
of
the
thing
pledged
when
they
have
not
yet
taken
possession
of
it.
It
would
be
just
as
improper
to
deny
that
right
to
all
pledgees
who
are
in
possession
of
the
property,
whether
they
took
possession
when
the
contract
was
signed,
in
the
case
of
a
common
pledge,
or
when
the
default
occurred,
in
the
case
of
a
pledge
without
transfer
of
possession.
In
our
legal
tradition,
this
right
accompanies
the
legally
acquired
right
of
retention.
It
must
not
be
forgotten
that
in
all
cases
of
security
upon
moveable
property
without
transfer
of
possession,
the
creditor
is
bound
by
law
to
sell
the
property
once
he
has
taken
possession.
The
right
of
retention,
of
which
he
should
immediately
take
advantage,
cannot
therefore
be
exercised
ad
infinitum.
Articles
1980
and
1981
of
the
Civil
Code
in
effect
set
forth
two
basic
common
law
principles:
first,
whoever
incurs
a
personal
obligation
renders
his
property,
moveable
and
immoveable,
liable
for
its
fulfilment
and,
second,
the
debtor's
property
is
the
common
pledge
of
his
creditors.
These
two
articles
read
as
follows:
1980.
Whoever
incurs
a
personal
obligation,
renders
liable
for
its
fulfilment
all
his
property,
moveable
and
immoveable,
present
and
future,
except
such
property
as
is
specially
declared
to
be
exempt
from
seizure.
However,
a
creditor
may
agree
with
his
debtor
that
the
latter
will
be
bound
to
fulfil
his
obligation
only
on
the
property
they
describe
and
which
is
affected
with
a
legal
cause
of
preference
in
favour
of
the
creditor.
1981.
The
property
of
a
debtor
is
the
common
pledge
of
his
creditors,
and
where
they
claim
together
they
share
its
price
rateably,
unless
there
are
amongst
them
legal
causes
of
preference.
However,
it
must
be
remembered
that
in
the
present
case
the
opposant,
who
was
subrogated
to
the
rights
of
the
three
creditors
holding
the
commercial
pledge,
has
not
proven
that
he
forced
the
debtor
Transport
Voyer
Inc.
into
default
before
he
launched
his
opposition;
in
other
words,
the
opposant
has
not
satisfactorily
proven
that
he
first
exercised
his
privilege
to
take
possession
of
the
things
pledged
so
as
to
sell
them
at
auction.
On
this
point,
my
views
are
also
the
same
as
those
expressed
by
Louise
Mailhot,
J.,
of
the
Quebec
Superior
Court,
as
she
then
was,
in
Le
sous-
ministre
du
Revenu
du
Quebec
v.
Fountainhead
Fun
Centre
Ltd.
and
Léon
Friedman
et
al.,
[1981]
R.D.F.Q.
105
at
108:
[Translation]
In
the
Court's
opinion,
granting
the
right
to
revendicate
and
quash
a
seizure
of
moveable
property
to
debtors
of
guarantees
without
transfer
of
possession
would
expand
the
scope
given
to
article
597
C.C.P.
by
the
Court
of
Appeal.
Although
this
right
is
not
limited
to
full
owners,
the
lawmakers
have,
in
article
734,
paragraph
1,
only
granted
a
right
of
seizure
before
judgment
to
those
with
a
right
of
possession
and
retention.
If
the
lawmakers
had
intended
to
extend
the
right
to
the
holder
of
a
commercial
pledge
or
pledge
of
agricultural
property,
they
would
have
done
so
by
adding
the
creditor
of
a
commercial
pledge
or
pledge
of
agricultural
property
to
the
list
in
article
734,
paragraph
1.
Those
types
of
pledges
without
transfer
of
possession
were
created
in
1962
and
1940
respectively,
before
the
Code
of
Civil
Procedure
was
recast
in
1965.
Then,
at
page
109,
Mailhot,
J.,
states:
[Translation]
With
respect
for
contrary
views
expressed
either
at
the
preliminary
stage
of
a
motion
to
dismiss
an
opposition
(art.
600
C.C.P.)
or
after
inscription
of
a
contestation
on
the
merits
(art.
601
C.C.P.),
the
Court
considers
that
the
potential
right
of
the
creditor
of
a
commercial
pledge
cannot
be
considered
to
be
a
current
right
of
possession
bringing
the
article
597
C.C.P.
right
to
revendicate
and
the
quashing
of
the
seizure
into
effect
when
the
pledgee
has
not
yet
taken
possession.
It
is
important
to
stress
that
this
decision,
pronounced
in
1981,
was
a
change
of
direction
in
the
case
law
and
was
followed
by
a
number
of
other
decisions
taking
the
same
direction.
It
is
enough
to
refer
to
the
following
decisions:
In
Banque
de
Montréal
v.
Terminor
Inc.
and
Fiducie
du
Québec,
a
decision
of
the
Quebec
Superior
Court
delivered
on
March
7,
1983
(Court
no.
460-05-000205-810),
in
the
District
of
Bedford,
Savoie,
J.,
said
the
following
in
referring
to
the
decision
of
Mailhot,
J.,
beginning
at
page
3:
[Translation]
That
interpretation
of
the
articles
of
the
Code
and
of
the
deed
of
trust
is
in
conformity
with
the
changes
brought
about
by
the
amendments
to
the
Code
of
Civil
Procedure,
which
eliminated
from
the
new
article
597
the
terms
of
the
old
article
646,
enacted
before
the
pledge
without
transfer
of
possession,
or
fiduciary
pledge,
was
introduced
to
the
Civil
Code.
In
Service
Finance
Corporation
v.
Decca,
Rinfret,
J.,
recalled
that
the
codifiers
had
in
fact
expanded
the
field
of
the
right
of
opposition
in
opening
it
up
to
every
party
with
a
right
to
revendicate;
this
ensured
that
it
would
fit
in
with
the
new
article
734
C.C.P.,
among
others.
The
new
article
734
lists
the
categories
of
debts
giving
a
right
to
revendicate:
those
of
the
owner,
pledgee,
depositary,
usufructuary,
institute,
substitute
and
unpaid
vendor.
The
pledgee
and
trustee
are
not
mentioned,
so
it
must
be
concluded
that
the
right
to
revendicate
applies
only
to
a
person
in
possession
of
the
property
or,
in
other
words,
a
person
who
has
a
current
right
to
possess
the
property,
with
the
exception
of
the
unpaid
vendor,
who
must
satisfy
the
requirements
of
article
1999
of
the
Civil
Code.
In
Sous-ministre
du
Revenu
du
Québec
v.
Servi
De’li
Ltée,
a
Quebec
Superior
Court
decision
delivered
on
March
25,
1983
(Court
no.
550-05-00297-82),
in
the
District
of
Hull,
the
Judge
mentioned
at
page
5:
[Translation]
A
certain
number
of
cases,
motions
to
dismiss
oppositions
to
seizure
involving
the
rights
of
the
holder
of
a
commercial
pledge,
have
held
that
such
oppositions
are
not
clearly
unfounded
at
that
stage.
Moreover,
a
constant
theme
in
the
case
law
concerning
the
merits
of
such
oppositions
holds
that,
when
the
creditor
has
not
exercised
his
privilege
to
take
possession
of
the
property
under
the
commercial
pledge
and
the
property
is
still
in
the
debtor's
possession,
it
can
be
seized
by
another
creditor
through
a
seizure
in
execution.
Finally,
in
Le
Sous-ministre
du
Revenu
du
Québec
v.
Restaurant
chez
Gisèle
Forget
Ltée
and
the
Caisse
Populaire
St-Edmont
de
St-Jean,
opposant,
[1984]
C.S.
488
at
490,
Forest,
J.,
stressed
that
the
Servi
Déli
Ltée
judgment
just
mentioned
has
since
ben
followed
constantly;
he
specifically
referred
to
the
following
decisions:
Sous-ministre
du
Revenu
v.
Benoît
Robidoux
Inc.;
Sous-ministre
du
Revenu
du
Québec
v.
Automobiles
Gilles
Deblois
Inc.;
Sous-ministre
du
Revenu
du
Québec
v.
Benro
Inc.;
Sous-ministre
du
Revenu
du
Québec
v.
Restaurant
Bar
La
différence;
Banque
de
Montréal
v.
Terminer
Inc.;
Sous-ministre
du
Revenu
du
Québec
v.
Meubles
Arpec
Ltée;
Sous-ministre
du
Revenu
du
Québec
v.
96864
Canada
Ltée;
Sous-ministre
du
Revenu
du
Québec
v.
Equipments
Laporte
Inc.
and
Sous-ministre
du
Revenu
du
Québec
v.
Transport
Sirois
Ltée.
The
opposant's
attorney
referred
the
Court
to
only
a
single
decision
contrary
to
that
delivered
in
Fountainhead
Fun
Center
Ltd.,
supra,
from
later
than
1981.
It
is
a
decision
of
the
Quebec
Superior
Court,
District
of
Chicoutimi
(Court
no.
150-05-000014-839),
delivered
on
July
15,
1985
in
the
case
of
Sous-ministre
du
Revenu
du
Québec
v.
Léonce
Bédard
et
al.,
and,
like
the
Restaurant
chez
Gisèle
Forget
Ltée
case,
supra,
has
been
appealed.
This
is
therefore
another
issue
to
be
dealt
with
by
the
Quebec
Court
of
Appeal.
Under
the
circumstances,
I
am
perfectly
comfortable
to
fall
in
with
the
new
majority
that
has
developed
since
1981.
For
all
these
reasons,
I
must
uphold
the
motion,
dismiss
the
opposition
and
authorize
the
sale
of
the
seized
goods
listed
in
the
opposition,
with
costs
against
the
opposant.
Motion
allowed.
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