Richard Morneau Prothonotary:
Introduction (L14/R4592/T0/BT0) test_marked_paragraph_end (1498) 1.023 0046_7481_7613
This is an opposition taken under article 597 of the Code of Civil Procedure by three opposing parties to a seizure of movable property carried out on October 11, 1995 in a residence at 4322 Chemin St-Éloi in Jonquiére.
Both counsel for the seizing creditor and counsel for the opposing parties agreed to argue this motion before me notwithstanding that the motion under review may not be within the jurisdiction of a prothonotary of this Court; this issue might become the subject of an appeal to the trial division in another matter.
Facts (L14/R5186/T0/BT0) test_marked_paragraph_end (920) 1.048 0047_1133_1265
Following the seizure referred to earlier, the three opposing parties, Linda Lagacé, Thérèse Roy-Lagacé and Albert Lagacé, took an opposition on October 18, 1995 and each signed an affidavit on the same date. We will be coming back to the claims and content of these affidavits.
Linda Lagacé is the spouse of the debtor René Désabrais, who appears to be liable to the creditor for a significant amount of taxes. René Désabrais and Linda Lagacé inhabited the residence in which the seizure was carried out, as tenants according to the allegations (but paying no rent, although they were responsible for some housekeeping expenses).
The real owners of the residence (henceforth the cottage) were the other two opposing parties before the Court, Thérèse Roy-Lagacé and Albert Lagacé, the mother and father of Linda Lagacé.
The opposition of the three opposing parties was not filed and served until January 18, 1996. The Court record does not appear to contain any explanation as to the delay between October 18, 1995 and January 18, 1996.
Notwithstanding the rather sparse contents of the three affidavits in support of the opposition, the creditor cross-examined the three opposing parties on their affidavits.
Thérèse Roy-Lagacé was cross-examined on March 22, 1996. The transcripts of her cross-examination — and of the other cross-examinations
— are in the Court record and I read them more than once.
On March 22, 1996 as well, Linda Lagacé was cross-examined for the first time. On that occasion she undertook to produce some documents to the creditor. It will be noted that these undertakings were not fulfilled until November 1 1, 1996, two days before the hearing scheduled for November 14, 1996 by order of this Court dated July 10, 1996.
As a result of this production of documents on November 11, the creditor moved for a postponement of the hearing to enable him to cross-examine Linda Lagacé again. The hearing was therefore postponed, by order, to December 18, 1996 and finally on consent to January 13, 1997. At the hearing of January 13, some further documents were produced in Court.
Albert Lagacé was cross-examined on July 17, 1996 after the creditor had obtained in the preceding days an order to that effect.
We might also mention that on November 8, 1996 Rouleau J. of this Court refused the opposing parties the right to be heard orally in Court during the hearing on the merits that was originally to be held on November 14, 1996. The creditor was also at that time refused a similar request, which in all likelihood was in response to that filed by the opposing parties.
Analysis (L4/R4926/T0/BT0) test_marked_paragraph_end (4590) 1.037 0048_1773_1939
The opposing parties’ thesis, from what the Court can gather at the conclusion of the argument, appears to be the following, in gist.
None of the movable property that was seized at the cottage belongs to the debtor, who was inhabiting the cottage as a tenant although he had in the past acted like an owner in regard to the building (e.g., enlarging the cottage).
All of the property is said to be part of the opposing parties’ patrimonies.
Linda Lagacé is alleged to be the owner of a major share of the property, which is said to have been given to her by her spouse, the debtor, in repayment of a loan of some $50,000 she made to him in the past with a view to his purchase of a residence situated at 882, 4 Rue in Ville de la Baie. The other property is said to be purchases by her.
The other two opposing parties, Linda Lagacé’s father and mother, claim a share of the seized property on the ground that they are still the owners of some of the property notwithstanding their departure from the cottage more than two years prior to the seizure.
From the outset the opposing parties knew or were presumed to know that they had to discharge their onus of persuading the Court of their claims on the strength of their written testimony.
In spite of this, they all chose to sign an affidavit that they characterize as “detailed” but which, in each case, attests to only two basic facts. Linda Lagacé’s affidavit will suffice as an example. In the fifth and sixth paragraphs she states:
[Translation]
5. I am the owner of the following seized property... [and there follows a list of about 77 miscellaneous movables]
6. Notwithstanding a number of searches, I am unable to produce all of the documents pertaining to the purchase of my property, such documents being undiscoverable.
Although the affidavit refers to a partial production of documents, none of the opposing parties attaches any document to his or her affidavit. No amended affidavit attaching any explanations or additional records was produced by any of the opposing parties prior to the cross-examinations on their affidavits referred to earlier. It was not until November 11, 1996 that Linda Lagacé produced certain documents that she had undertaken to produce on the previous March 22.
Within the context of its system for hearing motions based on affidavit evidence, the Court may and must assess the probative force of this testimony to determine the merits or lack thereof of a party’s submissions.
In my opinion, this assessment must be based as a general rule on a party’s attitude as disclosed in the Court record and on the factors referred to by Léo Ducharme at page 168 of the fourth edition of his work, Précis de la preuve:
[Translation] When assessing the value of testimony, the important factors are those governing the credibility of the witness, such as the grounds for the witness’s knowledge, his sense of observation, his reasons to remember, his experience, the reliability of his memory and his independence of the parties to the case. It is the duty of the party calling a witness to bring out the factors that are favourable to his credibility, and of the adverse party to highlight the unfavourable factors.
In my view the opposing parties ought to have been able, as of October 18, 1995, to indicate the factors favourable to their claims. On the contrary, however, they limited themselves on that date to executing a short affidavit in the hope, apparently, that the Court would take them at their word concerning their respective property titles.
Nor did they try to fill in any gaps during the lengthy period that elapsed between October 18, 1995 and the hearing of January 13, 1997.
The various cross-examinations on their affidavits by the creditor might have provided the desired opportunity for each of the opposing parties to elaborate on his or her testimony and possibly corroborate that of the other opposing parties.
Unfortunately for them, the transcripts in the Court file seriously suggest that they were unable to support their thesis with any relevant and essential information — any favourable factors — that might validate their claims. Yet the questions that were put to them offered many opportunities to do so.
If, in order to illustrate the preceding comments, we linger on the transcripts of Albert Lagacé’s cross-examination and the two cross-examinations of Linda Lagacé, we may observe (without drawing up a comprehensive list) the following facts.
Albert Lagacé does not remember when or where he signed his affidavit or whether other people were present at the time of signing (pages 9 to 12 of the transcripts). If he read his affidavit before signing it, it was, as he puts it, done very quickly (p. 12). This may explain why paragraphs 6 and 8 of his affidavit of 9 paragraphs are similar (and correspond to paragraph 6 of Linda Lagacé’s affidavit, reproduced earlier). Although there was some issue as to Mr. Lagacé’s health for the purposes of the cross-examination, there is no indication as to his having any disability whatsoever at the time he affixed his signature to the said affidavit.
Linda Lagacé, for her part, acknowledged at the outset and in the actual course of her cross-examination that much property of some consequence that she had stated in her affidavit belonged to her did not in fact belong to her (beginning and pages 11 and 12 of the first cross-examination). A similar thing happened at the cross-examinations of Albert Lagacé and his wife.
In terms of the search for documents referred to in her affidavit, Linda Lagacé is not very sure when this search was conducted (p. 8). We ultimately learn, during her second cross-examination, that the few documents she finally produced were located in a suitcase of documents in her home (p. 47, second cross-examination). (Albert Lagacé, for his part, does not appear to have engaged in any search for documents, despite what his affidavit states (p. 48).) Why, then, did Linda Lagacé not attach the documents to her affidavit instead of waiting until November 11, 1996 to act?
As mentioned previously, Linda Lagacé’s main argument is that a fair number of movable assets belonged to her on the day of the seizure since, shortly after her spouse René Désabrais had purchased them, he had given her this property in repayment of a loan of over $50,000 she had made to him in the past for the purchase of the residence they were living in before moving into the cottage.
Although at the end of the day a handwritten document was produced in relation to this loan, I am simply unable on the basis of the evidence as a whole to believe that the income earned by Linda Lagacé in the years between 1980 and 1990 could have enabled her to save enough to make the said loan, as was alleged.
Even if one were to accept that such a loan actually occurred, I have no way of knowing, from the rash of explanations offered in response to the questions, what property was in fact specifically contemplated by the said loan.
When all is said and done, the opposing parties have failed to convince me of their status as owners of the property for which they are seeking to have the seizure quashed.
If indeed there were some compelling evidence, it is buried too deeply to attract the Court’s attention. It is impossible in this case to separate the wheat from the chaff.
Accordingly, the opposition taken by the opposing parties will be dismissed, with costs.
Application dismissed.
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