Date: 20060202

Docket: GST-5774-05

Citation: 2006 FC 119

Montréal, Quebec, February 2, 2006

PRESENT: RICHARD MORNEAU, PROTHONOTARY

IN THE MATTER OF THE EXCISE TAX ACT

AND

IN THE MATTER OF AN ASSESSMENT OR ASSESSMENTS BY THE DEPUTY MINISTER OF REVENUE OF QUEBEC UNDER THE EXCISE TAX ACT

BETWEEN:

DEPUTY MINISTER OF REVENUE OF QUEBEC

Judgment Creditor

and

BERTRAND BEAUPRÉ

Judgment Debtor and Opposing Party

and

MARTHE ST-GERMAIN

Opposing Party

and

BERTRAND BEAUPRÉ, DENIS MORIN AND JACQUES ST-PIERRE

Opposing Parties

REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, PROTHONOTARY

[1]               This is a decision on oppositions filed pursuant to articles 596 and 597 of the Quebec Code of Civil Procedure (C.C.P.) by three groups of opposing parties against a seizure in execution of movable property carried out by the judgment creditor on November 8, 2005, at the main residence and secondary residence of the tax debtor, Bertrand Beaupré.

[2]               Mr. Beaupré, pursuant to article 596 C.C.P., and his wife, Marthe St-Germain, pursuant to article 597 C.C.P., have each filed an opposition to the seizure which, by the time the matter reached the hearing stage, concerned only one item of property, respectively, namely, a portrait of Mr. Beaupré and another of Ms. St-Germain, both painted by artist Tom Hopkins.

[3]               Each of these portraits has a certain value, even outside the immediate family of the opposing parties, hence the interest of the judgment creditor, the Deputy Minister of Revenue of Quebec, in seizing and eventually selling off this property.

[4]               The third opposition was filed by three trustees (Denis Morin, Jacques St-Pierre and, once again, Bertrand Beaupré) and concerns a collection of art works (hereafter, the art collection). These three trustees together argue that the art collection is part of the trust patrimony to which it was transferred in 2003 by the settlor of the trust, Ms. St-Germain, the wife of the judgment debtor.

Analysis

[5]               The rule established by article 2644 of the Civil Code of Québec (C.C.Q.) is that all of the property of a debtor is the common pledge of his or her creditors, and any creditor may, under article 2646 C.C.Q., cause the property of the debtor to be seized and sold. Consequently, all of the debtor’s property is seizable; exemptions from seizure are the exception and must be interpreted restrictively.

[6]               Moreover, in cases of oppositions to seizures in execution, it is recognized that the burden of proof lies with the opposing party, who must establish his or her rights in this regard.

[7]               On the strength of these principles, we will now consider each of the oppositions in dispute.

I.          The Opposition by Bertrand Beaupré

[8]               Although Mr. Beaupré’s motion record makes no mention of it, and as the judgment creditor had presumed from the start, it came out at the hearing that Mr. Beaupré  is relying on

paragraph 553(2) C.C.P. in support of his opposition to the seizure of his portrait. The provision reads as follows:

[9]               First, it should be noted that this provision does not apply to just any portrait owned by a debtor or his or her family. On the contrary, the expression used in the C.C.P. is “family portraits”. Counsel did not submit to the Court any case law in which this expression in paragraph 553(2) was interpreted.

[10]           In terms of doctrine, counsel for Mr. Beaupré referred to a brief passage from a text by Charles Belleau, Précis de procédure civile du Québec, Vol. 2, 4^th ed., 2003, in which the author states that the purpose of paragraph 553(2) is to protect objects that have sentimental value. This statement is not very helpful in determining whether the expression “family portraits” can include a portrait of the judgment debtor himself.

[11]           According to the definitions submitted by the judgment creditor, however, it would appear that the expression “family portraits” covers only ancestors of the debtor, and not the debtor himself. At paragraphs 11 to 14 of his written submissions, the judgment creditor states the following:

[translation]

11.           Thus, the French dictionary Dictionnaire Quillet de la langue française gives the following definition of the term “portraits de famille”, or “family portraits”, under the entry for the word “portrait”:

portrait: Image of a person made by drawing, painting, photography, etc. Family portraits, ancestral portraits [in French, portraits des aïeux]. – Full-length portrait, a head-to-toe portrait of a person. – Fig. C’est son portrait, tout son portrait [i.e., a spitting image], said of a person who, in appearance or in character, strongly resembles someone else .

By anal. Presentation of the physical, moral or intellectual characteristics of a person or of a reality that is brought to life. Literary portraits.

COMMON EPITHETS: faithful, accurate, striking, living, lifelike, expressive, masterly, beautiful, admirable, celebrated, famous, pretty, fine, delicate, distinguished, brilliant, studied, flattering, embarrassing, grotesque, unflattering, faded, etc.

SYN. – see EFFIGY and PAINTING

[Emphasis added.]

12.           The same dictionary gives the following definition for the word “aïeul”:

aïeul, n. Grandfather. In some contexts, ancestor. – pl. Aïeuls, grandparents.

AÏEUX, n.pl., ancestors.

SYN. – Aïeux, those people who came long before today’s generations: Nos aïeux les Gaulois [Our ancestors, the Gauls]. – Ancêtres, the most ancient of those who lived before us: Our prehistoric ancestors. – Pères [Forefathers], those who came before us in life: Life was different in the time of our forefathers.

[Emphasis added.]

13.           Meanwhile, the dictionary Dictionnaire Larousse Universel en 2 volumes gives the following definition of the term “portrait de famille”, or “family portrait”, in the entry for the word “portrait”:

portrait n.. from portraire. Image of a person, reproduced by painting, drawing, photography, etc.; Hyacinthe Rigaud left some remarkable portraits. Object bearing a perfect resemblance: enfant qui est le portrait de son père [child who is the spitting image of his father]. Lit. Description of traits or character, of an era, etc.: La Bruyère excelled at portraits. Full-length portrait, a head-to-toe portrait of a person. Portrait parlant [speaking likeness], portrait so lifelike that it seems to

speak. Family portrait, one that represents a family ancestor. Pop. Face: s’abimer le portrait [to mess up one’s face]

[Emphasis added.]

14.           The same dictionary gives the following definition of the word “aïeul”:

aïeul. Grandfather, grandmother. Pl. aïeuls, aïeules, n. pl. Les aïeux, les ancêtres [ancestors]. Said of those who arrived before others in an enterprise: Renaudot a été l’aïeul des journalistes. [Renaudot was the father of all journalists.]

[Emphasis added.]

[12]           In my view, the approach proposed by the judgment creditor should be adopted. Therefore, I find that Mr. Beaupré cannot rely on paragraph 553(2) C.C.P. to have the portrait of him painted by artist Tom Hopkins exempted from seizure. Consequently, his opposition to the seizure will be dismissed without costs.

II.        The Opposition by Marthe St-Germain

[13]           As already mentioned, Ms. St-Germain is also seeking to have a portrait exempted from seizure, namely, a portrait of her by the same artist, Tom Hopkins. She claims to be the owner of this portrait and to have paid for it in cash. It is thus in her capacity as owner that she is revendicating this portrait. Her approach is therefore different from that of her husband.

[14]           Although her motion record and examination on affidavit disclose that she does not have any proof in writing of ownership, I nevertheless find that pages 35 and 36 of the stenographic notes of her examination are sufficient to persuade me that Ms. St-Germain is the valid owner of this particular portrait. Her testimony on the circumstances surrounding the production and purchase of

this specific item convinces me that she may be regarded as its owner. Consequently, her opposition to the seizure of this property is granted without costs.

III.       The Opposition of the Three Trustees in Respect of the Art Collection

[15]           In November 2003, Ms. St-Germain constituted a trust by notarial act so as to give her husband, the judgment debtor, and their children an art collection. However, according to a 1998 appraisal report of this property, Mr. Beaupré and Ms. St-Germain were the joint owners of the art collection. Moreover, the examination on affidavit shows that the works comprising the art collection were purchased by both of them and that neither could prove which of them had bought a given work.

[16]           Ms. St-Germain is the sole donor under the notarial act that created the trust. There is nothing in the motion record, as constituted, to indicate that Mr. Beaupré made any donations to the trust from his share of the art collection between 1998 and 2003.

[17]           Therefore, I am of the view that the trustees have not clearly established on a balance of probabilities that they may revendicate the entire art collection or any part thereof. In light of this conclusion, there is no need for me to rule on the other ground for opposition raised by the judgment creditor, that is, that the trust in question was constituted for the purpose of committing fraud.

[18]           Consequently, I must dismiss the trustees’ opposition, with costs to the judgment creditor.

“Richard Morneau”

Certified true translation

Michael Palles

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                      GST-5774-05

STYLE OF CAUSE:                                      In the matter of the Excise Tax Act,

- and -

In the matter of an assessment or assessments by the Deputy Minister of Revenue of Quebec under the Excise Tax Act

DEPUTY MINISTER OF REVENUE OF QUEBEC

v. BERTRAND BEAUPRÉ and MARTHE ST-GERMAIN and BERTRAND BEAUPRÉ, DENIS MORIN AND JACQUES ST-PIERRE

PLACE OF HEARING:                                Montréal, Quebec

DATE OF HEARING:                                  December 19, 2005

REASONS FOR ORDER BY:                     Prothonotary Morneau

DATED:                                                         February 2, 2006

APPEARANCES:

SOLICITORS OF RECORD: