Belliard v. Deputy M.N.R.
A-504-94
Létourneau J.A.
23/12/97
20 pp.
Seizure-Appeal from decision of Judge of Trial Division dismissing opposition of appellant, lawyer in private practice, to seizure of following property for amounts owing under Excise Tax Act: motor vehicle, computer, fax, wooden desk, chair, computer table-This property, except motor vehicle, seized at his residence-Contended 30% of professional activity carried out at home and that rest consisted of criminal law cases assigned to him by Martin Tremblay, and acknowledged having had access to support services at Mr. Tremblay's firm-Appellant argued exemption from seizure under Code of Civil Procedure (CCP), art. 552 (instruments of work needed for personal exercise of professional activity) and Act, s. 130 respecting the Barreau (records of advocate, account books, filing cabinets, law books and other documents of professional nature)-Appeal dismissed, except in respect of computer-General principle property of debtor common pledge of creditor (Civil Code, art. 2644), privilege of exemption from seizure being exception-Then up to debtor to rebut presumption property may be seized, and to establish, on balance of probabilities, (1) exercising professional activity, (2) seized property debtor seeking to have released from seizure instruments of work under CPP, art. 552(3), (3) instruments of work needed for exercise of professional activity, and (4) exercise of that activity personal as relating to debtor and not constituting carrying on of enterprise-Decision property not subject to seizure must be made on basis of nature and intensity of professional activity exercised, nature, quality and quantity of instruments of work in issue and circumstances that characterize debtor's activity in terms of time, place, manner, cause and condition-Court must also ensure debtor's claim as to nature, quantity and quality of instruments of work reasonable and that quantity of instruments claimed reasonably proportionate to needs engendered by exercise of professional activity-Computer, used for accounting, operational and management purposes, and containing client files, nominative and personal information, legal information and model pleadings, instrument of work needed by appellant and not subject to seizure, in instant case, under Act, s. 130 respecting the Barreau-Fax may be seized-It is useful but not needed, appellant having admitted he could work without it-Having regard to evidence, office equipment not needed by appellant for personal exercise of profession and subject to seizure-As to motor vehicle, none of duties which form essence of appellant's professional activity requiring instrument of work in nature of motor vehicle in order to be carried on or exercised-Therefore not exempt from seizure under provisions of CPP, art. 552(3)-Code of Civil Procedure, R.S.Q., c. C-25, art. 552(3)-Act respecting the Barreau, R.S.Q., c. B-1, s. 130-Civil Code of Québec, art. 2644.