T-1806-78
In re Income Tax Act, the Canada Pension Plan
and the Unemployment Insurance Act, 1971 and
in re Constant Beaudry
Trial Division, Marceau J.—Montreal, September
11; Ottawa, September 15, 1978.
Practice — Jurisdiction and scope of regulatory powers —
Objection to Court's making absolute a provisional order
establishing charge on land — Enforcement proceedings
brought pursuant to Rule 2400 — Whether or not Rule 2400
exceeding scope of regulatory powers conferred by s. 46 of the
Federal Court Act because of that Rule's purpose to create a
privilege — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
ss. 46, 56(1) — Federal Court Rule 2400.
APPLICATION.
COUNSEL:
Suzanne Marcoux-Paquette for plaintiff.
Michel Nault for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Gagné, Gagné & Nault, Montreal, for
defendant.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: Respondent is here objecting to
the Court making absolute a provisional order
establishing a charge on land, made by this Court
on June 7 last, affecting an immovable owned by
him and enforcing the judgment outstanding
against him as a result of the registration by the
Minister of National Revenue of a certificate
attesting to a debt which he owed Her Majesty the
Queen in right of Canada (Income Tax Act, S.C.
1970-71-72, c. 63, s. 223(2)).
Respondent's objection, submitted in writing by
special leave of the Court, could not be based on a
more decisive argument. It is that Rule 2400, one
of the Rules and orders of this Court in accord
ance with which the enforcement proceedings at
bar were brought, is void because it is ultra vires
the regulatory powers conferred on judges of the
Court by section 46 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, for the purpose of
creating these General Rules of practice and
orders. If I understand correctly, he argues that
the Rule is ultra vires because, since its purpose is
to "create a privilege", it exceeds the scope of
section 46, which is concerned strictly with the
procedure for the exercise of rights.
In my y opinion, this claim by respondent is based
on a mere ambiguity, which results in part from
the unfortunate use of the term "privilege" in
documents of the Court, but which can easily be
resolved by analysis of the provision in question.
Neither the purpose nor the effect of Rule 2400 is
to create a privilege in the strict sense in which the
term is used in Quebec law.' Its provisions, it is
true, are of an exceptional nature in the Quebec
legal context, but their scope is not for that reason
difficult to understand. They are similar to the
provisions of the Civil Code relating to the judicial
hypothec (articles 2034 et seq. and article 2121 of
the Civil Code). In my opinion, an application
under Rule 2400 partakes of the nature of both a
registration of a judicial hypothec and a hypothe-
cary action which would be limited to conclusions
for a declaration of hypothec. "A charge imposed
by an order under paragraph (1) made absolute
under this rule shall have the same effect, and the
judgment creditor in whose favour it is made shall
have the same remedies for enforcing it, as if it
were a valid charge effectively made by the judg
ment debtor." The purpose and effect of the Rule
is the creation of a charge on the debtor's immov
able pursuant to a judgment, affecting the said
immovable when that judgment is enforced.
Accordingly, therefore, it is simply a means of
enforcing a judgment, a means which is less
draconian than a simple execution and which may
be employed by the creditor of any judgment in
specie made by the Court, if he is inclined to wait
for the effective realization of the right which the
Court has recognized that he possesses.
' Article 1983 of the Civil Code of the Province of Quebec
contains a clear definition of a privilege: "A privilege is a right
which a creditor has of being preferred to other creditors
according to the origin of his claim. It results from the law and
is indivisible of its nature."
Having made this clarification I need only, in
order to dispose of respondent's objection, cite
certain provisions of the Federal Court Act which
clearly indicate the power conferred on the judges,
subject to approval of the Governor in Council, to
make rules relating to the method of enforcement
of judgments of the Court.
46. (1) Subject to the approval of the Governor in Council
and subject also to subsection (4), the judges of the Court may,
from time to time, make general rules and orders not inconsist
ent with this or any other Act of the Parliament of Canada,
(b) for the effectual execution and working of this Act and
the attainment of the intention and objects thereof;
(i) dealing with any other matter that a provision of this Act
contemplates being the subject of a rule or the Rules.
(2) Rules and orders made under this section may extend to
matters arising out of or in the course of proceedings under any
Act involving practice and procedure or otherwise, for which no
provision is made by that or any other Act but for which it is
found necessary to provide in order to ensure the proper
working of the Act and the better attainment of its objects.
56. (1) In addition to any writs of execution or other process
that are prescribed by the Rules for enforcement of its judg
ments or orders, the Court may issue process against the person
or the property of any party, of the same tenor and effect as
those that may be issued out of any of the superior courts of the
province in which any judgment or order is to be executed; and
where, by the law of that province, an order of a judge is
required for the issue of any process, a judge of the Court may
make a similar order, as regards like process to issue out of the
Court.
There is therefore no basis for respondent's
objection and the application of Her Majesty the
Queen for an absolute order to be issued must be
allowed. An absolute order will accordingly be
issued establishing a charge on the immovable
described in the provisional order of June 7, 1978.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.