Federal Court Decisions

Date: 20021011

Docket: T-712-01

Neutral citation: 2002 FCT 1069

OTTAWA, ONTARIO, OCTOBER 11, 2002

BEFORE: LUC MARTINEAU J.

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

for and on behalf of Her Majesty the Queen in right of Canada

(Minister of National Revenue)

Plaintiff

- and -

NATIONAL BANK OF CANADA

Defendant

REASONS FOR ORDER AND ORDER

            WHEREAS by a simplified action the plaintiff is claiming from the defendant the sum of $8,578.50 on account of source deductions withheld but not paid to Her Majesty by Transport Multi-Cargo Inc. (the debtor);

WHEREAS this claim is disputed by the defendant;

            WHEREAS the case at bar was heard with the action brought by the plaintiff against the same defendant, the National Bank of Canada, in Court file T-1006-01;

            IN VIEW OF the admissions, affidavits and exhibits entered in the record, the authorities cited by the parties and the arguments contained in the memorandums and made at the hearing held in Montréal on June 11, 2002, in files T-1006-01 and T-712-01;

FACTS

            WHEREAS the facts that follow were not in dispute;

WHEREAS the debtor owes the plaintiff the sum of $10,296.91 as of April 12, 2001, including $8,578.50 for source deductions withheld but not paid to Her Majesty:

(a)         the sum of $7,995.10 which it withheld from the remuneration paid to its employees under the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1 (the ITA), for the period from August 1, 1998 to April 30, 1999; and

(b)         the sum of $583.40 which it withheld from the remuneration paid to its employees as employee premiums payable by its employees under the Employment Insurance Act, S.C. 1996, c. 23 (the EIA) for the period from August 1, 1998 to April 30, 1999;

WHEREAS the plaintiff is now claiming the sum of $8,578.50 from the defendant as a result of the voluntary surrender by the debtor of two Utility brand refrigerated trailers owned by it ("the movable property") which the defendant took in payment in the circumstances set out above;

WHEREAS on August 9, 1999, the defendant, in accordance with articles 2748 et seq. of the Civil Code of Quebec, S.Q. 1991, c. 64 ("C.C.Q.") registered a prior notice of the exercise of a hypothecary remedy, namely taking in payment, in the Register of Personal and Movable Real Rights ("RPMRR");

WHEREAS on that date the debtor was in default in repayment of two loans made by the defendant and secured by movable hypothecs registered in the RPMRR on November 27, 1995, and February 6, 1996;

WHEREAS the defendant's hypothecary rights are prior to Her Majesty's beneficial right;

WHEREAS the defendant's two claims covered by the said prior notice amounted on the date of the latter in the one case to $1,783.33 and in the other $2,604.66;

WHEREAS on August 19, 1999, the debtor voluntarily surrendered the movable property to the defendant by a voluntary surrender agreement and taking in payment signed by the representatives of the debtor and the defendant;

WHEREAS by that agreement the debtor indicated that it did not intend to require the defendant to proceed to a judicial sale of the movable property;

WHEREAS on August 24, 1999, the defendant sold the movable property to a third party for $13,000;

WHEREAS on the date of taking in payment it is alleged by the defendant that the debtor was also owner of several other movable assets, which were never realized either by the defendant or by the plaintiff;

WHEREAS by a letter dated December 15, 1999, the plaintiff notified the defendant that the debtor owed Her Majesty source deductions totalling $9,113.46 and this amount was also covered by the deemed trust established by subsections 227(4) or (4.1) ITA and 86(2) or (2.1) EIA;

            WHEREAS by the same letter the plaintiff notified the defendant that it must forward the sum of $9,113.46 from the proceeds of the liquidation of any property subject to the deemed trust, before payment of any fees and disbursements and before any creditor is repaid;

            WHEREAS on April 26, 2001, following the defendant's failure to comply with this notification, the plaintiff brought the instant personal action against the defendant;

FEDERAL PROVISIONS

            WHEREAS the burden of proving that this claim against the defendant is valid rests with the plaintiff;

            WHEREAS the plaintiff based her claim against the defendant on subsections 227(4) and (4.1) ITA and 86(2) and (2.1) EIA (the federal provisions);

            WHEREAS the federal provisions create a deemed trust;

            WHEREAS the federal provisions create certain legal presumptions;

            WHEREAS under subsections 227(4) ITA and 86(2) EIA, a tax debtor is deemed to hold any amount deducted or withheld under the ITA or EIA in trust for Her Majesty;

            WHEREAS under subsections 227(4.1) ITA and 86(2.1) EIA, Her Majesty enjoys beneficial ownership of any property covered by the deemed trust, and in that case the said property is deemed not to be part of the tax debtor's estate;

            WHEREAS subsections 227(4.1) ITA and 86(2.1) EIA cover, first, the tax debtor's property, and second, the property held by his secured creditor within the meaning of subsection 224(1.3) ITA, which, in the absence of security within the meaning of that subsection, would be property of that person;

            WHEREAS these presumptions apply once a tax debtor fails to remit to Her Majesty the amounts contemplated by subsections 227(4) ITA and 86(2) EIA within the deadlines specified in the ITA;

            WHEREAS these presumptions apply despite other provisions of the ITA, the BIA (except subsections 81.1 and 81.2 BIA), any other legislative or provincial provision or any rule of law;

            WHEREAS the primary purpose of these presumptions is to facilitate recovery proceedings brought on behalf of Her Majesty against a tax debtor and prevent objections which exercise of Her Majesty's beneficial right may prompt from other creditors of the tax debtor, in particular secured creditors within the meaning of subsection 224(1.3) ITA;

            WHEREAS under subsections 227(4.1) in fine ITA and 86(2.1) in fine EIA, the proceeds of realization of this property are paid to the Receiver General in priority;

            WHEREAS the federal provisions do not indicate the manner or specific procedure whereby Her Majesty may assert her beneficial ownership and priority claim;

            WHEREAS under section 222 ITA, all taxes, interest, penalties, costs and other amounts payable under the ITA are debts due to Her Majesty and recoverable as such in the Federal Court or any other court of competent jurisdiction, or in any other manner provided by the ITA;

            WHEREAS the source deductions specified in section 153 ITA were exclusively to be made by the employer, here the debtor, the tax debtor;

            WHEREAS under subsection 223(3) ITA the Minister may cause to be registered in the Federal Court on behalf of Her Majesty a certificate stating that a tax debtor who has not made certain source deductions is indebted for the amount indicated in the said certificate;

            WHEREAS subsections 223(5) and (6) ITA also authorizes the registration on behalf of Her Majesty, in the province where the debtor's property is located, as a charge on the said property, in accordance with provincial law, of a document issued by the Federal Court evidencing the content of the certificate registered in the Federal Court pursuant to subsection 223(3) ITA;

            WHEREAS when execution proceedings are brought on behalf of Her Majesty against a tax debtor following registration of a certificate in the Federal Court pursuant to section 223 ITA, unless otherwise provided in the Rules, writs of seizure and sale are to be executed as nearly as possible in the manner determined by the law of the province in which the property to be seized is located, as provided in subsection 56(3) of the Federal Court Act, R.S.C. 1985, c. F-7 (the Act) and Rule 448 of the Rules;

            WHEREAS it was not alleged nor proven that recovery proceedings were brought by the plaintiff against the debtor under the ITA;

PROVINCIAL PROVISIONS

            WHEREAS since no specific procedure has been provided in the ITA or the EIA to assert the beneficial ownership enjoyed by Her Majesty under the federal provisions, the provincial rules of law apply in the alternative and by analogy, mutatis mutandis;

Beneficial ownership and trust

            WHEREAS the expression "beneficial ownership" contained in subsections 227(4.1) ITA and 86(2.1) EIA has not been defined by the federal legislator;

            WHEREAS the concept of "beneficial ownership" is a concept originating in the common law;

            WHEREAS in the province of Quebec it is the civil law in effect which governs matters of property and civil rights;

            WHEREAS the concept of "beneficial ownership" is unknown to Quebec civil law;

            IN VIEW OF articles 947 et seq. and 1260 et seq. C.C.Q.;

            WHEREAS under article 1261 C.C.Q. the trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right;

            IN VIEW OF article 1263 C.C.Q., by analogy, and also article 1290 C.C.Q.;

Priorities and hypothecs

            WHEREAS under article 2644 C.C.Q., the property of a debtor is charged with the performance of his obligations and is the common pledge of his creditors;

            WHEREAS under article 2646 C.C.Q., creditors may institute judicial proceedings to cause the property of their debtor to be seized and sold;

            WHEREAS if creditors rank equally the price is distributed proportionately to their claims, unless some of them have a legal cause of preference;

            WHEREAS under article 2647 C.C.Q., prior claims and hypothecs are the legal causes of preference;

            WHEREAS under article 2650 C.C.Q., a claim to which the law attaches the right of the creditor to be preferred over the other creditors, even the hypothecary creditors, is a prior claim;

            WHEREAS under article 2651(4) C.C.Q., claims of the State for amounts due under fiscal laws are a prior claim;

            WHEREAS under article 2655 C.C.Q., prior claims may be set up against other creditors, or any third persons when they constitute a real right, without being published;

            WHEREAS, further, under article 2725 C.C.Q., legal hypothecs of the State, including those for sums due under fiscal laws, may be charged on movable or immovable property;

            WHEREAS such hypothecs take effect only from their registration in the proper register;

WHEREAS registration by the State of a legal movable hypothec for sums due under fiscal laws does not prevent it from exercising its prior claim;

            WHEREAS under article 2732 C.C.Q., a creditor who has registered his legal hypothec preserves his right to follow it on movable property which is not alienated in the ordinary course of business of an enterprise, as though he was the holder of a conventional hypothec;

Rights of hypothecary creditors

            WHEREAS in the province of Quebec, under the C.C.Q., a hypothecary creditor is not owner of the property covered by the security;

            WHEREAS the situation is different in other provinces, where property subject to fixed and specific common law charges confers a right of ownership on the secured creditor;

            WHEREAS under article 2748 C.C.Q., in addition to their personal right of action and the provisional measures provided in the Code of Civil Procedure, R.S.Q., c. C-25 ("C.C.P.") hypothecary creditors, when their debtor is in default and their claim is liquid and eligible, may exercise any of the following hypothecary rights:

            (a)        taking possession of the charged property to administer it;

            (b)        taking it in payment of their claim;

            (c)        having it sold by judicial authority; or

            (d)        selling it themselves;

WHEREAS under articles 2757 et seq. C.C.Q., before exercising one of these hypothecary rights a creditor must file a prior notice with the RPMRR, indicating the hypothecary right he intends to exercise on expiry of the period allowed in the notice for remedying the default;

            WHEREAS under article 2758 C.C.Q., the following formalities must be observed:

                         In a prior notice of the exercise of a hypothecary right, any failure by the debtor to fulfil his obligations shall be indicated, together with a reminder, where necessary, that the debtor or a third person has a right to remedy the default. In addition, the amount of the claim in capital and interest, if any, and the nature of the hypothecary right which the creditor intends to exercise shall be included in the notice, together with a description of the charged property and a call on the person against whom the right is to be exercised to surrender the property before the expiry of the period specified in the notice.

                         This period is of 20 days after registration of the notice in the case of a movable property, 60 days in the case of an immovable property, or 10 days if the creditor intends to take possession of the property; however, the period is of thirty days in the case of a notice relating to movable property charged with a hypothec constituted by an act accessory to a consumer contract;

            WHEREAS the plaintiff in the case at bar did not dispute that the said formalities were observed by the defendant;

Surrender and taking in payment

WHEREAS the surrender and the taking in payment of property following registration of prior notice of the exercise of a hypothecary right are governed by articles 2778 et seq. C.C.Q. and 795 et seq. C.C.P.;

WHEREAS under article 2763 C.C.Q. surrender is voluntary or forced;

WHEREAS under article 2764 C.C.Q. surrender is voluntary where, before the period indicated in the prior notice expires, the person against whom the hypothecary right is exercised abandons the property to the creditor in order that the creditor may take possession of it or consents in writing to turn it over to the creditor at the agreed time;

WHEREAS in the latter case, if the hypothecary right exercised is taking in payment, the surrender shall be attested in writing by the person surrendering the property and accepted by the creditor;

WHEREAS under article 2779 C.C.Q., subsequent hypothecary creditors or the debtor may, within the time allotted for surrender, require the creditor to abandon the taking in payment and sell the property himself or have it sold by judicial authority;

WHEREAS under article 2780 C.C.Q., a creditor required to sell shall proceed to do so unless he prefers to pay the subsequent creditors who served and registered the notice required by article 2779 C.C.Q. within the allotted time;

WHEREAS under article 2781 C.C.Q., where the default has not been remedied or the payment has not been made in the time allotted for surrender, the creditor takes the property in payment by the effect of the judgment of surrender, or of a deed voluntarily made, by the person against whom the hypothecary right is exercised, and accepted by the creditor, if neither the subsequent creditors nor the debtor have required him to proceed with the sale;

WHEREAS under article 2781 C.C.Q., the judgment of surrender or the deed voluntarily made and accepted constitutes the creditor's title of ownership;

WHEREAS under article 2782 C.C.Q., the taking in payment extinguishes the obligation and the creditor who has taken property in payment may not claim what he pays to a prior or hypothecary creditor whose claim is preferred to his;

WHEREAS under article 2783 C.C.Q., a creditor who has taken property in payment becomes the owner of it from the time of registration of the prior notice;

WHEREAS the creditor then takes the property as it then stood, but free of all hypothecs published after his;

WHEREAS the provincial provisions are neither contrary to nor inconsistent with the federal provisions and do not prevent Her Majesty exercising her beneficial right and relying on her preferred claim;

            WHEREAS the federal provisions do not exempt Her Majesty from the duty to assert her beneficial right and preferred claim at the proper time, within the deadlines and in the manner specified in the Act;

CROWN IN RIGHT OF CANADA BOUND BY CIVIL CODE OF QUEBEC

AND CODE OF CIVIL PROCEDURE

            IN VIEW OF the argument cited by counsel for the plaintiff, that Her Majesty is not bound by the provisions of the C.C.Q. and the C.C.P. which may apply in the case at bar;

            IN VIEW OF sections 1, 42 and 61 of the Interpretation Act (Quebec), R.S.Q., c. I-16;

            IN VIEW OF sections 2, 17 and 35 of the Interpretation Act (Canada), R.S.C. 1985, c. I-21;

            IN VIEW OF the general rules laid down by the case law and commentary;

            WHEREAS the Crown may be subject to legislation not only in the event of an express provision binding it, but also when the context of a provision or its purpose indicates that Parliament intended to bind the Crown;

            WHEREAS subsections 227(4.1) ITA and 86(2.1) EIA refer expressly to the BIA, any other enactment of Canada or a province or any other rule of law;

            WHEREAS a contrario Her Majesty is bound by subsections 81.1 and 81.2 BIA, and by necessary implication by any other federal or provincial legislation or any rule of law relating to the purpose of the federal provisions, the trust, the property, securities and priorities, and which is also not contrary to or inconsistent with exercise of the beneficial ownership and priority conferred on Her Majesty by subsections 227(4.1) ITA and 86(2.1) EIA;

            WHEREAS when the federal provisions at issue are interpreted in the context of the other provisions of the ITA - such as sections 222 and 223 ITA and the Federal Court Act, supra, p. 8 - which refer to the application of rules of provincial law in matters of recovery, execution of judgments, registration and publication of rights -, it is clear that Parliament intended to bind the Crown in right of Canada, to the extent that the applicable provincial rules are not inconsistent with the provisions of the ITA;

            WHEREAS further the federal provisions and sections 222 and 223 ITA would lose all meaning if Her Majesty were not bound by the said rules of provincial law;

            WHEREAS making the rule of the Crown in right of Canada subject to the ordinary law is a requirement of the rule of law;

            WHEREAS in the province of Quebec the C.C.Q. and C.C.P. are the "ordinary law" of the province, although they are legislation;

            WHEREAS a distinction must be made between the nature of a right and the way in which that right is exercised;

            WHEREAS the provincial provisions of a general nature applicable in the case at bar apply to all creditors;

            WHEREAS the said provisions do not diminish the beneficial ownership and do not negate the priority claim Her Majesty enjoys under the federal provisions;

            WHEREAS, therefore, Her Majesty is bound by these provincial provisions;

            WHEREAS, in the action at bar brought against the defendant, the plaintiff is seeking to rely on the provisions of the C.C.Q., since in the conclusions of her action she asks, inter alia, that the Court order the defendant to pay her, in addition to the amount of the claim, the additional indemnity mentioned in article 1619 C.C.Q.;

WHEREAS when the Crown chooses to rely on the law, it assumes the obligations and disadvantages of so doing;

            WHEREAS under subsection 39(1) of the Federal Court Act, except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions in force in any province between subject and subject apply to any proceedings in the Court in respect of any cause of action arising in that province;

            WHEREAS since the federal provisions indicate no deadline for asserting Her Majesty's beneficial ownership and priority claim, she should have asserted them within the deadlines which the creditors of a debtor must observe;

            WHEREAS if Her Majesty decided not to institute a personal action herself against the tax debtor or not to exercise the remedies conferred on her by the ITA for realizing her priority claim, she cannot assert her beneficial right unless she herself observes the provincial provisions applicable in the case at bar;

LEGAL ACTS WHICH MAY BE SET UP AGAINST HER MAJESTY

            WHEREAS voluntary surrender and taking in payment of the debtor's movable property were carried out in accordance with the conditions laid down in the C.C.Q. and C.C.P.;

WHEREAS Her Majesty could have taken recovery proceedings against the debtor under the ITA or registered a legal hypothec on the debtor's property;

WHEREAS in such a case, within the time allotted for surrender, the plaintiff as hypothecary creditor could have required the defendant to abandon the taking in payment and itself sold the movable property, or had it sold by judicial authority;

WHEREAS the defendant was not obliged to liquidate the movable property, but could have taken it in payment;

            WHEREAS, unlike the situation considered by the Federal Court in the decision rendered on September 13, 2002, in Les Entreprises Forestières P.S. Inc. and NewCourt Financial Ltd., 2002 FCT 968, now on appeal, there was no seizure by Her Majesty of the debtor's movable property;

            WHEREAS, in the absence of a judgment rendered by a competent court quashing the taking in payment, this legal act must be considered valid and capable of being set up against the plaintiff and Her Majesty with their full effect;

NO REAL RIGHT OR RIGHT OF PURSUIT OVER MOVABLE PROPERTY

            WHEREAS subsections 227(4.1) in fine ITA and 86(2.1) in fine EIA apply to cases of judicial sales or other similar cases where the proceeds of realization of property must be shared between creditors;

            WHEREAS in a taking in payment made in good faith in accordance with the legal exercise of a hypothecary remedy involving surrender of property subject to the deemed trust, no money was remitted by the debtor to the creditor;

WHEREAS since there was no realization of the property, there are no proceeds resulting from sale of the property as the creditor took the property in payment, being free to keep or sell the said property;

WHEREAS the beneficial right set out in subsections 227(4.1) ITA or 86(2.1) EIA does not as such confer any real right or right of pursuit to the property;

NO PERSONAL ACTION AGAINST THE DEFENDANT

            WHEREAS the federal provisions confer no right to a personal remedy against a bona fide purchaser of property subject to the deemed trust, whether the latter is a creditor of the tax debtor or not;

            WHEREAS in the absence of clear language in the ITA the Court cannot accept the interpretation suggested by the plaintiff of the effect of subsections 227(4.1) ITA and 86(2.1) EIA, which in the absence of fraud or collusion amounts to holding secured or unsecured creditors and bona fide third party purchasers severally and personally liable for the non-payment of source deductions, which must be made exclusively by the tax debtor under section 153 ITA;

WHEREAS the plaintiff neither advanced to the defendant the money needed for the sale of the debtor's movable property nor in her action offered to repay the costs incurred by the defendant;

            WHEREAS the scheme of movable guarantees set out in the C.C.Q. is designed to ensure certainty in commercial transactions;

            WHEREAS the Court must interpret the federal provisions consistent with, first, the achieving of predictable results in commercial transactions, and second, the distribution of the exclusive powers assigned to Parliament and the provincial legislatures by sections 91 and 92 of the Constitution Act, 1867;

            WHEREAS if the Court accepted the interpretation suggested by the plaintiff of the federal provisions, this would be likely to create legal uncertainty that would be harmful to the security of commercial transactions and would also compromise the operation and effectiveness of the provincial provisions in the province of Quebec;

            WHEREAS when the federal Parliament decides to allocate liability for payment to a third party other than the tax debtor, it does so expressly, providing that a request for payment shall be sent to the third party, as in the case of section 224 ITA, where inter alia it has conferred a right of seizure in execution on the Minister when the particular conditions mentioned in that provision have been met;

            WHEREAS it would have been desirable for the federal Parliament to intervene clearly and to specify the joint liability of persons other than the tax debtor, as indicated inter alia in sections 160 or 227.1 ITA;

            WHEREAS Her Majesty has no right of action against a third party unless the latter was in a position in which he could have been held jointly and severally liable in a personal action brought by Her Majesty against the tax debtor;

            WHEREAS the sum of $8,578.50 claimed from the defendant personally is not a tax, interest, penalty, costs or any other amount payable by the defendant personally under section 222 ITA;

            WHEREAS the plaintiff has no cause of action under the federal provisions against the defendant and her claim is without basis;

            FOR THESE REASONS, THE COURT ORDERS THAT:

            The plaintiff's action is dismissed;

The whole with costs against the plaintiff.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                                  T-712-01

STYLE OF CAUSE:                                                     Attorney General of Canada and National Bank of Canada

PLACE OF HEARING:                                                Montréal, Quebec

DATE OF HEARING:                                                  JUNE 11, 2002

REASONS FOR ORDER AND ORDER BY:         MARTINEAU J.

DATED:                                                                           OCTOBER 11, 2002

APPEARANCES:

Nadine Dupuis                                                                  FOR THE PLAINTIFF

Patrick Vézina

Raynald Auger                                                                  FOR THE DEFENDANT

SOLICITORS OF RECORD:

Morris Rosenberg                                                              FOR THE PLAINTIFF

Deputy Attorney General of Canada

Kronstrom, Dejardins                                                        FOR THE PLAINTIFF

Ste-Foy, Quebec