Date: 19991116
Docket: ITA-4127-95
MONTRÉAL, QUEBEC, NOVEMBER 16, 1999
| BEFORE: RICHARD MORNEAU, PROTHONOTARY |
In re the Income Tax Act,
- and -
| In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, Canada Pension Plan and Employment Insurance Act, |
AGAINST:
158377 CANADA INC.,
Judgment debtor,
AND
AUBERGE BON CONSEIL (1998) INC.,
Garnishee,
AND
SOCIÉTÉ EN COMMANDITE NOTRE-DAME DU BON CONSEIL,
Objector.
Motion by the objector asking the Court to:
- ALLOW the instant motion:
| - DECLARE the seizure carried out on July 8, 1999 illegal, vacate it and give a release therefrom; |
| - FURTHER DECLARE that as the writ of attachment was issued against a garnishee which did not exist, it is of no validity, non-executory and impossible of execution; |
| - ORDER the real estate registry officer of the Drummond district to strike out and delete for all legal purposes the immovable seizure registered on July 8, 1999 as No. 1870 in the Drummond real estate registry office; |
| - ORDER the sheriff or deputy sheriff of the Drummond judicial district to repay the sum of $37,593.88 to the objector forthwith; |
| - ORDER the judgment creditor Revenue Canada to pay the objector the sum of $5,000 in compensation; |
| - RESERVE all the objector"s remedies and its right to amend its conclusions if necessary; |
| - DECLARE the judgment to be rendered executory notwithstanding appeal; |
The whole with all costs.
[Article 597 of the Code of Civil Procedure]
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] IN VIEW OF the motion by the Société en commandite Notre-Dame du Bon Conseil (hereinafter "the objector") under art. 597 of the Code of Civil Procedure in objection asking the Court to vacate an immovable seizure made on July 8, 1999 of an immovable which the objector claims as owner;
[2] WHEREAS the parties apparently only recently learned that the garnishee Auberge Bon Conseil (1988) Inc. (hereinafter "Auberge Bon Conseil") had had its registration officially struck off on or about July 31, 1987;
[3] WHEREAS this deletion, which resulted in the dissolution of Auberge Bon Conseil, was caused by the latter"s fault in reporting as required by the provincial legislation;
[4] WHEREAS further Auberge Bon Conseil left this deletion unchallenged even if since July 25, 1995 it had been subject to a provisional garnishment order herein;
[5] WHEREAS there was no evidence that since that deletion two of the entities which had a definite interest in seeking the revocation of the deletion, namely the then directors or shareholders of Auberge Bon Conseil or the objector, had in fact taken any action to this effect;
[6] IN ACCORDANCE WITH the four preceding paragraphs, the Court clearly cannot set up this deletion of Auberge Bon Conseil against the judgment creditor and consider that the final garnishment order issued on December 18, 1998 and the writ of execution issued on May 31, 1999 are invalid and non-executory;
[7] WHEREAS in the Court"s opinion under the Civil Code of Quebec ("C.C.Q.") it is conceivable that two Paulian actions may coexist, namely that of arts. 1776 to 1778 C.C.Q. and that of arts. 1631 to 1636 C.C.Q.;
[8] WHEREAS the judgment creditor is free to rely on arts. 1631 et seq. C.C.Q. ("the Paulian action"), especially as the Court considers that in the circumstances of the case at bar art. 1778(2) of the C.C.Q. means that the business sale provisions clearly do not apply to the sale of January 26, 1995 between Auberge Bon Conseil and the objector;
[9] WHEREAS based on Quebec (Sous-ministre du revenu) v. Deschênes (Court of Quebec, case 200-02-016759-971, October 17, 1997, Judge Bond) and the case law cited therein, the Paulian action may be relied on to challenge an objection to his seizure and accordingly a creditor may thus act and execute without first obtaining a court ruling that the act may not be set up against him;
[10] WHEREAS finally the written submissions of the judgment creditor filed on October 1 and October 14, 1999 persuade the Court that all the conditions for the Paulian action have been met;
[11] WHEREAS further the objector cannot claim damages in this Court in connection with a motion;
[12] In view of the foregoing, the objection to the seizure by the Société en commandite Notre Dame du Bon Conseil must be dismissed with costs.
| Richard Morneau Prothonotary |
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE No.: ITA-4127-95 |
| STYLE OF CAUSE: 158377 CANADA INC., |
Judgment debtor,
AND
AUBERGE BON CONSEIL (1998) INC.,
Garnishee,
AND
| SOCIÉTÉ EN COMMANDITE NOTRE-DAME DU BON CONSEIL, |
Objector.
PLACE OF HEARING: Montréal, Quebec
| DATE OF HEARING: October 4, 1999 |
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: November 16, 1999
APPEARANCES:
| Claude Bernard for Her Majesty the Queen |
| Maurice Laplante for the objector |
SOLICITORS OF RECORD:
| Morris Rosenberg for Her Majesty the Queen |
Deputy Attorney General of Canda
| Clair, Laplante, Côté for the objector |
Maurice Laplante
Drummondville, Quebec
| Federal Court of Canada Trial Division Date: 19991116 Docket: ITA-4127-96 Between: 158377 CANADA INC., Judgment debtor, AND AUBERGE BON CONSEIL (1998) INC., Garnishee, AND SOCIÉTÉ EN COMMANDITE NOTRE-DAME DU BON CONSEIL, Objector. REASONS FOR ORDER AND ORDER |