Docket: T-1967-10
Citation: 2016 FC 1249
[ENGLISH
TRANSLATION]
Ottawa,
Ontario, November 9, 2016
PRESENT: The Honourable Madam Justice Gagné
BETWEEN:
DÉOGRATIAS NKUNZIMANA,
IRIKUJIJE BELLANCILLE,
EVELINE IRADUKUNDA,
MÉDIATRICE IRAKOZE,
ALYVERA IRAMBONA,
ERIC MUHIZI-IRAKOZE
Applicants
and
HER MAJESTY THE QUEEN
Defendant
ORDER
AND REASONS
[1]
This is a motion from the defendant, which I
would describe as sui generis, dealing with a final decision that I
rendered on July 23, 2014. At the time, I allowed the applicants’ action, in
part, and made the following orders against Her Majesty the Queen:
THE COURT’S
JUDGMENT is that:
1. The applicants’ action is allowed
in part;
2. The
defendant is ordered to pay applicant Déogratias Nkunzimana the sum of $10,000
with interest at the legal rate and the additional indemnity set out in
Section 1619 of the Civil Code of Québec (C.C.Q.) starting on November 22,
2010;
3. The
defendant is ordered to pay applicant Irikujije Bellancille the sum of $27,500
with interest at the legal rate and the additional indemnity set out in
Section 1619 of the C.C.Q. starting on November 22, 2010;
4. The
defendant is ordered to pay applicant Eveline Iradukunda the sum of $27,500
with interest at the legal rate and the additional indemnity set out in
Section 1619 of the C.C.Q. starting on November 22, 2010;
5. The
defendant is ordered to pay applicant Médiatrice Irakoze the sum of $27,500
with interest at the legal rate and the additional indemnity set out in
Section 1619 of the C.C.Q. starting on November 22, 2010;
6. The
defendant is ordered to pay applicant Alyvera Irambona the sum of $27,500 with
interest at the legal rate and the additional indemnity set out in
Section 1619 of the C.C.Q. starting on November 22, 2010;
7. The
defendant is ordered to pay applicant Eric Muhizi-Irakoze the sum of $27,500
with interest at the legal rate and the additional indemnity set out in
Section 1619 of the C.C.Q. starting on November 22, 2010;
8. Costs
are awarded to the applicants.
[2]
On January 14, 2015, counsel for the defendant,
informed by applicant Nkunzimana that the applicants were no longer represented
by counsel, sent him a cheque for $187,890.20 payable to him, covering all sums
owed to all applicants for principal, interest and costs. Without ensuring that
this sum would be shared in accordance with the judgment rendered, counsel for
the defendant obtained a final release only from applicant Nkunzimana.
[3]
In May 2016, counsel hired by applicants
Médiatrice Irakoze, Alyvera Irambona and Eric Muhizi-Irakoze informed counsel
for the defendant that they had never received the sums owed to them under the
terms of the judgment.
[4]
Initially based on paragraph 399(2)(a) of
the Federal Courts Rules, SOR/98-106, the defendant filed a motion with
the Court to amend the findings of the judgment and to order applicant
Nkunzimana to pay the sums owed to the other applicants. The defendant
maintained that the fact that Mr. Nkunzimana refused to comply with the
judgment constituted a new fact.
[5]
During a conference call held on August 10,
2016, I was sceptical that paragraph 399(2)(a) could apply to this
situation, since no new fact, subsequent to the delivery of the judgment, would
have been likely to induce me to make an order other than those made; quite the
contrary. I therefore asked the defendant to amend her motion and instead
request the Court’s assistance in executing the judgment in accordance with Federal
Courts Rules applicable to the execution of judgments and C.C.Q. provisions
that allow a debtor to recover money paid in error. I also said it would be
desirable for the defendant to pay the amount owing to the applicants, who
should not be involved in this new litigation, in order to avoid incurring
unnecessary costs.
[6]
The defendant’s amended motion, based on
Sections 3, 4, 359, 399(2)(a) and 423 of the Federal Courts
Rules, Sections 1491 and 1554 of the Civil Code of Québec and
Section 657 of the Code of Civil Procedure, CQLR c C-25.01,
requests that the Court:
Declare that the Receiver General for Canada
has paid Déogratias Nkunzimana an amount of $187,890.20 on January 14,
2015, which represents the total amount of damages awarded by the Court to all
applicants;
Declare that on January 14, 2015,
Irikujije Bellancille, Eveline Iradukunda, Médiatrice Irakoze, Alyvera Irambona
and Eric Muhizi-Irakoze were each entitled to a $34,339.59 payment, which
included the $27,500 amount awarded by the Court, plus interest and the
additional indemnity payable from November 22, 2010 to the date of payment,
January 14, 2015 ($34,339.59);
Declare that on January 14, 2015,
Déogratias Nkunzimana was entitled to a $10,000 payment for damages plus interest and the additional indemnity
($12,487.12);
Order Déogratias Nkunzimana to pay the sum
of $171,697.95 , which represents the portion of
the damages awarded by the Court to the children ($34,339.59 x 5), to
the Attorney General of Canada’s representative, within five (5) days following
the order of this Court.
[7]
By a directive issued on September 27, 2016, I
scheduled this motion to be heard on October 27, 2016, reminding the defendant
that it would be desirable for applicants Irikujije Bellancille, Eveline
Iradukunda, Médiatrice Irakoze, Alyvera Irambona and Eric Muhizi-Irakoze to
have received the sums due to them, by the hearing date, in order to avoid
incurring additional costs.
[8]
The applicant attended the hearing of the motion
and was represented by his counsel, while applicants Médiatrice Irakoze,
Alyvera Irambona and Eric Muhizi-Irakoze attended via video conference from Québec
and were represented by their counsel.
[9]
The day before the hearing, I received release
letters from Irikujije Bellancille and Eveline Iradukunda, ratifying the
$34,339.59 payment made by the defendant to Déogratias Nkunzimana in accordance
with Section 1557 of the Civil Code of Québec, which stipulates
that:
1557. Payment shall be made to the creditor or
to a person authorized to receive it for him.
Payment made to a third person is valid if the
creditor ratifies it; if it is not ratified, the payment is valid only to the
extent of the benefit that the creditor derives from it.
[10]
I therefore take note that Irikujije Bellancille
and Eveline Iradukunda ratified the sum paid to Déogratias Nkunzimana, which
was granted to them by the July 23, 2014 judgment, which included a release in
favour of the defendant.
[11]
That said, having heard the submissions of all
parties, I am still of the opinion that paragraph 399(2)(a) of the Federal
Courts Rules does not apply in this case and that my jurisdiction to act
and assist the defendant in executing the Court’s judgment is based rather on
Section 423 of the Federal Courts Rules, which stipulates that:
423. All matters relating to the enforcement
of orders shall be brought before the Federal Court.
[12]
Sections 3 and 4 of the Federal Courts Rules
invite me to seek a fair solution to the dispute that is as expeditious and
economical as possible and which, if the Rules are silent, refers the Court to
the practice of the most relevant Superior Court, in this case, the Superior
Court of Québec.
[13]
If Section 423 of the Rules were not
sufficiently specific to allow me to make this order, which I doubt, then I
could also draw inspiration from the new Code of Civil Procedure, which
stipulates that:
657. After the judgment, the court may issue
any order to facilitate execution, whether forced or voluntary, in the manner
that is most advantageous for the parties and most consistent with their
interests.
[14]
Given the wording of the findings of the July
23, 2014 judgment, it is clear that part of the payment made to applicant
Nkunzimana by the applicant was made in error and was not a final payment for
the defendant. He never released the defendant from the obligation to pay the
sum due to applicants Médiatrice Irakoze, Alyvera Irambona and Eric Muhizi-Irakoze
for principal, interest and additional indemnity. This portion of the payment
was made in error and the defendant has valid grounds to seek reimbursement
from applicant Nkunzimana.
[15]
Applicant Nkunzimana filed an affidavit in which
he argued that he was entitled to this money, that at the beginning of the
case, he was the only applicant and that his counsel at the time recommended
that he add his nieces and nephews. He added that he was suing this counsel for
professional liability before the Superior Court, in connection with this case.
[16]
Now, if applicant Nkunzimana was dissatisfied
with my judgment, he was free to appeal to the Federal Court of Appeal. He did
not. The indemnification paid to his nieces and nephews was intended to offset
the harm suffered by them. At any rate, if they had not been applicants in this
case, applicant Nkunzimana would not have been entitled to those amounts. In
the best case scenario for the applicant, he would have been entitled to the
damages awarded him by the judgment, and in the worst case scenario his action
would have been dismissed with costs.
[17]
I will therefore allow the defendant’s motion,
in part, to recover the money paid in error and order applicant Déogratias
Nkunzimana to reimburse her the sum of $103,018.77, i.e. the amount of damages
awarded to applicants Médiatrice Irakoze, Alyvera Irambona and Eric
Muhizi-Irakoze by the July 23, 2014 judgment, with interest and the additional
indemnity, starting on January 14, 2015.
[18]
On October 31, 2016, I was informed that, the
day after the motion was heard, the Assistant Deputy Minister had finally
approved payment of the sums due to Médiatrice Irakoze, Alyvera Irambona and
Eric Muhizi-Irakoze. Unfortunately, they were not exempted from attending and
being represented at the hearing of the motion, despite the Court’s warnings.
They will therefore be entitled to their costs against the defendant.
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