Faculté de droit, Section de droit civil Maîtrise en Droit Notarial Université d'ottawa - Session Hiver 2008

Transcription

1 Examen des tites immobilies Aspects fiscaux DCL 5528 Faculté de doit, Section de doit civil Maîtise en Doit Notaial Univesité d'ottawa - Session Hive 2008 Textbook Pa Michel Mahe 1

2 Examen des tites Examen des tites immobilies Aspects fiscaux... 1 DCL ) Thèmes la supe-pioité... 1 a) Biens visés (incluant un immeuble dans le cas de l aticle 160) pa le cetificat d impôt impayé... 1 i) Cetitude de popiété : Cou pas de compétence pou tanche litige civil... 1 ii) Le bien doit avoi été tansféé en faude du fisc iii) Le bien doit appateni au débiteu b) Conditions pou que la saisie des poduits de la vente s applique i) Pésomption que les biens de la ésidence appatiennent à l occupant ii) Peuve d envoi de l avis de cotisation iii) Peuve d examen séieux des motifs en cas d avis d opposition c) Quelle dette est visée i) Une société Alte Ego de son actionnaie pincipal n est pas nécessaiement peuve de faude ii) Peuve d exactitude du montant d) Les Pesonnes visées pa la supe-pioité i) Doit ête le débiteu ou une pesonne ayant tansigé avec lui e) Comment econnaîte la validité du cetificat où l avis est enegisté f) Quelle sanction s applique ) Souces a) Loi i) Action Fiscale paulienne (1) Paagaphe 160(1) de la LIR ii) Sens de montant payable à la Loi de l impôt su le evenu, pa. 223(1) à (9) (1) [Sens de «montant payable»] (2) Cetificat (3) Enegistement à la cou (4) Fais (5) Chage su un bien (6) Chage su un bien (idem) (7) Pocédues engagées en faveu d'un extait (8) Pésentation des documents (9) Intediction de vende (10) Établissement des avis (11) Demande d'odonnance (11.1) Pésomption de gaantie (12) Contenu des cetificats et extaits iii) L Aticle 224, Saisie Aêt ou La Supe pioité du paagaphe 224(1.2) iv) Aticle v) Patie 3 Modifications elatives au Bijuidisme b) Notes explicatives i) Notes des modifications poposées au paagaphes 223(5)_ et (6) bijuidisme c) Doctine des auteus

3 i) L aticle 160 LIR ii) L aticle iii) L aticle 224(1.2) d) Documents palementaies e) Documents administatifs i) concenant l aticle i) Bulletins d'intepétation (1) Secondaie: IT-369R Attibution du evenu povenant d'une fiducie à un auteu ou disposant ii) Intepétations techniques (1) Receipt of Life Insuance Poceeds-Not a Tansfe of Popety, 29 octobe 1996, (2) Joint Liability Deemed Disposition and Joint Tenancy, 14 septembe 1995, (3) Assessment of Dissolved Copoation, 5 juillet 1994, iii) Ciculaies d'infomation (1) Disposition d allègement des contibuables (2) IC 98-1R2 Politiques de ecouvement f) Juispudence i) Sommaie (1) Aêts plein texte (a) Papy c. MNR, 72 DTC ) E-Texbook a) Loi b) Intepétation c) Décisions anticipées d) Doctine e) Juispudence

4 1) Thèmes la supe-pioité Les thèmes pésentés egoupent les éléments fondamentaux de la pioité de l ARC en vetu de l aticle 224 en egad de cetains biens ou sommes dues pa un contibuable débiteu fiscal. Aussi appelé la supe-pioité de l ARC cette mesue constitue un moyen efficace au téso afin de écupée les céances qui lui sont dues. a) Biens visés (incluant un immeuble dans le cas de l aticle 160) pa le cetificat d impôt impayé i) Cetitude de popiété : Cou pas de compétence pou tanche litige civil Wellgate Intenational Ltd. (Applicant) v. The Ministe of National Revenue (Respondent) 2000 DTC 6458 Fedeal Cout Tial Division June 19, 2000 (Cout File Nos. T and ITA ) Collection of tax Ganishment Ministe having issued cetain Requiements to Pay, and having obtained an ex pate ode fo ganishment in the Fedeal Cout Tial Division Ministe late applying fo a final ganishment ode, and an inteested paty applying fo a judicial eview of the Ministe's Requiements to Pay Whethe such applications should be stayed, pending the outcome of poceedings instituted by the Ministe in the Quebec Supeio Cout coveing many of the same issues aised by the Ministe in the Fedeal Cout Income Tax Act, R.S.C (5th Supp.), c. 1, as amended, ss. 223(2), 223(3), 224(1) and 225(2). M contolled Sevices M.L. Maengèe Inc. (the tax debto, heeafte efeed to as "Sevices MLM"). He was also the Chaiman of Wellgate Intenational Ltd. (the inteested paty, heeafte efeed to as "Wellgate"). On Apil 28, 1998, M and Sevices MLM tansfeed and assigned to Wellgate the contactual and economic benefits owed to them unde a cetain Settlement and Release Ageement. On Mach 5, 1999, the Ministe eassessed Sevices MLM fo 1995, 1996, and 1997, fo taxes, inteest, and penalties totalling $881,848. He also assessed Sevices MLM fo 1998 fo taxes, inteest, and penalties totalling $1,192,545. Afte issuing the usual Cetificate and egisteing it in the Fedeal Cout (unde subsection 223(3) of the Act), the Ministe obtained an ex pate ode fo ganishment diected to Richte and Associates Inc. He also sent to Richte and 1

5 Associates Inc. (and to seveal othe paties), Requiements to Pay unde subsection 224(1) of the Act, naming Wellgate as a tax debto, and equiing amounts payable to Sevices MLM and/o Wellgate to be paid not to them, but diectly to the Ministe. Wellgate applied to the Fedeal Cout Tial Division fo a judicial eview of the said Requiements to Pay, alleging pimaily that it was not a tax debto, but that only Sevices MLM could be so descibed. Since Richte and Associates Inc. had not esponded to the said ex pate ode fo ganishment, the Ministe applied fo an ode endeing such ganishment executoy. Held: Both the Ministe's and Wellgate's applications wee stayed pending the final disposition of an ongoing action in the Quebec Supeio Cout which had been commenced by the Ministe on Septembe 23, In this action the Ministe was seeking, on the gound of 2000 DTC 6458 at 6459 faud, to set aside the tansfe fom Sevices MLM to Wellgate on Apil 28, 1998 of the beneficial inteest in the said Settlement and Release Ageement. In the poceedings befoe the Fedeal Cout Tial Division, howeve, the Ministe was asking the Cout to lift the alleged copoate veil and to find that Wellgate was nothing moe than a figuehead fo Sevices MLM. In shot, the integal question hee and its esolution encompassed the validity of contacts enteed into between pivate paties. As a esult, thee was gave doubt that the Fedeal Cout had juisdiction to entetain these mattes. The Ministe was not simply seeking to ealize a debt of the judgment debto, but to establish that cetain ageements and contacts (between pivate paties) wee invalid and faudulent. Given the uncetainty concening the Fedeal Cout's juisdiction and the inadequacy of summay poceedings fo esolving the complex and difficult questions involved, the Quebec Supeio Cout was the pope foum fo the esolution of the dispute between the paties. That Cout cetainly had juisdiction ove the impugned contacts in issue. Counsel: A. Rodges fo the plaintiff; D. Beauchamp fo the defendant. Befoe: Rouleau, J. 223(2) 223(3) 224(1) 225(2) 2000 DTC 6458 Fedeal Cout Tial Division Supeio Fedeal Couts June 19, 2000 Rouleau (2000 DTC 6458 at 6459) 223(2) 223(3) 224(1) 225(2) 2000 DTC 6458 Fedeal Cout Tial Division Supeio Fedeal Couts June 19, 2000 Rouleau

6 Rouleau, J.: [1] These two applications aise fom the same facts and wee head togethe. In T , the applicant Wellgate Intenational Ltd. seeks, by way of judicial eview, an ode setting aside the Requiement to Pay notices issued by the espondent Ministe unde subsection 224(1) of the Income Tax Act (the "Act") which had been diected to Richte and Associates Inc. In ITA , the Ministe of National Revenue, having issued a cetificate against Sevices M.L. Maengèe Inc., a debto unde subsection 223(2) of the Act and having egisteed it in the Fedeal Cout pusuant to subsection 223(3) of the Act, obtained an ex pate ode fo ganishment also diected to Richte and Associates Inc. The ganishee, having not esponded, this application is diected to ende executoy the ganishment ode pusuant to Rule 451 of the Fedeal Cout Rules and is now being opposed by the judgment debto, Sevices M.L. Maengèe Inc. and the Inteested Paty, Wellgate Intenational Inc. [2] Michel Maengèe, though his pesonal sevices copoation, Sevices M.L. Maengèe Inc., had been etained as Chaiman and Chief Executive Office of Dominion Bidge Copoation in Febuay of 1995 and his pesonal copoation has filed annual income tax etuns. As a esult of infomation obtained in late 1998 and ealy 1999, the Ministe of National Revenue, on Mach 5, 1999, poceeded to eassess Sevices M.L. Maengèe Inc. fo the taxation yeas ending Septembe 30, 1995, 1996 and 1997 fo a total of aeas, inteest and penalties in the amount of $881,848. The Ministe futhe issued an assessment fo the 1998 taxation yea claiming taxes owing, inteest and penalties in the amount of $1,192,545. He poceeded to apply and obtained fom this Cout an Ode of Fofeitue unde subsection 225(2) of the Act. He also diected notices to ganishee pusuant to subsection 224(1) of the Act to Richte and Associates Inc.; finally, an ex pate ode was obtained fom this Cout in July, 1999, pusuant to ule 449 of the Fedeal Cout Rules. Both the latte poceedings ae the object of this debate. [3] To bette undestand this dispute, it is impotant to outline the association of vaious copoate entities. Sevices M.L. Maengèe Inc., a Quebec copoation contolled by M. Michel Maengèe; Wellgate Intenational Inc., a Bitish Vigin Island copoation of which M. Maengèe is Chaiman ("Wellgate"); and, Dominion Bidge Goup of Companies (the Dominion Bidge Goup), fomely the Ceda Goup. The Dominion Bidge Goup has seveal components. The paent Dominion Bidge Copoation ("DBC") is a Delawae holding copoation and Ceda Goup Canada Inc. ("Ceda Canada") is a wholly owned subsidiay of DBC and itself a holding company with inteests in fou sepaate units: Ceda Goup Austalia Pty Limited which owned 63.8% of an opeating engineeing fim known as McConnell Dowell ("McConnell"); Dominion Bidge Inc., a Canadian opeating company ("DBI"); Steen Contactos Ltd. ("Steen"), a Canadian company with two subsidiaies, Becke Contactos Ltd. and Les Entepises Becke Inc.; and, Davie Industies Inc., a shipyad opeato in Quebec ("Davie") with a wholly owned subsidiay M.I.L. Intemodal Inc. [4] On Febuay 1, 1995, a Sevices Ageement was enteed into between Ceda Goup Inc. (now DBC) and "Michel L. Maengèe", an individual esident in the Povince of Quebec, and his company "Sevices M.L. Maengèe Inc." which was to povide the sevices of M. Maengèe to DBC (the "Sevices Ageement"). Pusuant to the 3

7 ageement, M. Maengèe was to act as Chaiman and Chief Executive Office of DBC 2000 DTC 6458 at 6460 and all the attendant esponsibilities fo the Dominion Bidge Goup as a whole. The sevices wee to be pefomed pimaily in Monteal fo a thee yea tem subject to a futhe thee yea enewal clause. (2000 DTC 6458 at 6460) 223(2) 223(3) 224(1) 225(2) 2000 DTC 6458 Fedeal Cout Tial Division Supeio Fedeal Couts June 19, 2000 Rouleau [5] On Septembe 26, 1997, a Cedit Ageement was enteed into between the Bank of New Yok ("BNY Financial") as lead lende and othes and Ceda Canada, as boowe, with its fou business units as guaantos. The cedit povided to Ceda Canada was a evolving line of cedit of up to $40 million, the poceeds of which would be used to epay cetain indebtedness of Ceda Canada to BT Commecial Copoation, to finance the woking capital equiements of Ceda Canada, and DBI Steen and Davie in the odinay couse of business and to pay fees and expenses incued in connection with the tansaction. [6] On Apil 6, 1998, anothe Cedit Ageement was enteed into between Lama Investments, Inc. and Wellgate Intenational Ltd. as lendes and Ceda Goup as boowe with its fou business units as subsidiay guaantos. The fist ecital of this ageement povided as follows: A. The Boowe has equested that the Lendes make available to the Boowe cedit accommodations in an aggegate pincipal amount at any one time outstanding not to exceed $14,800,000, the poceeds of which will be used to finance the payments owing to Wellgate unde the Settlement, Release and Dischage Ageements between the Paent and Messs. Maengèe, Matossian and Amyot, (the "Settlement Obligations"), to epay cetain outstanding tax obligations owed to Revenue Canada and to finance woking capital equiements of the Boowe and DBI, Steen and Davie in the odinay couse of business and to pay fees and expenses incued in connection heewith. [7] On Apil 28, 1998, as the esult of a falling out between DBC and Michel Maengèe as well as two othe Canadian copoate executives, thei sevices wee teminated and Settlement and Release Ageements wee enteed into with each of the thee copoate executives totalling compensation of $4.8 million U.S. The ageement was "among MICHEL L. MARENGÈRE, (`M. Maengèe'), a esident of Quebec, Canada, SERVICE M.L. MARENGÈRE INC., a Canadian sevices copoation (`Sevices MLM' and othes), and DOMINION BRIDGE CORPORATION, a Delawae copoation (the 4

8 `Copoation')." Sevices MLM is to be compensated fo the emaining potion of the pesonal sevices contact as well as damages. The cucial povision of the Settlement and Release Ageement which is of pimay inteest in this dispute states: The Copoation agees to pay Sevices MLM o its assignees fo the said temination and the exta contactual damages, the sum of Two Million Seven Hunded Thousand Dollas ($2,700,000). These payments will be made by delivey at the time of execution of this Ageement to Pouliot Mecue as tustee fo Wellgate Intenational, Ltd. ("Wellgate") of the Copoation's 11.5% Convetible Note (the "Note") in the pincipal amount of Fou Million Eight Hunded Thousand Dollas ($4,800,000), in which Sevices MLM will have a beneficial inteest equal to $2,700,000. The Note is convetible into shaes of Common Stock, $.001 pa value pe shae, of the Copoation at the convesion ate of $2.60 pe shae. A copy of the Note is attached heeto as Exhibit B. [8] The ageement also povided that as an incentive to Sevices MLM and Wellgate to accept the Note, Dominion Bidge would issue a common stock puchase waant to Wellgate to puchase 333,708 shaes of common stock at $.001 pa value pe shae of the Copoation at $3.00 pe shae fo a thee yea peiod commencing on Apil 28, 1998, duing which time Sevices MLM would have a beneficial inteest to puchase 187,711 shaes. The note fo $4.8 million U.S. payable to Sevices M.L. Maengèe Inc. In which it etained a beneficial inteest of $2.7 million U.S. was due 18 months afte the execution of the Settlement and Release Ageement o soone in the event that DBC was unable to meet the epayment undetakings as povided in the Loan Ageement of Apil 6, [9] On the same date, Apil 28, 1998, Michel Maengèe pesonally and though Sevices MLM, his pesonal sevices copoation, tansfeed and assigned to Wellgate the contactual and economic benefits owed to them by DBC unde the Settlement and Release Ageement. Othe assignos joining in the instument include Nicolas V. Matossian, pesonally and Geyhose Resouces (Canada) Ltd. ("Geyhose"), a Canadian sevices copoation contolled by M. Matossian and Rene Amyot (the two othe executives fomely employed by DBC who etained the beneficial inteest of the emainde of the $4.8 million U.S.). M. Maengèe and M. Matossian, as offices of Wellgate, executed the document accepting as assignee the tansfe and assignment. This instument stated that in consideation fo the assignment and tansfe, Wellgate "heeby issues a convetible pomissoy note to the Assignos in the pincipal amount of U.S. $4,800,000". [10] On Octobe 26, 1998, BNY, as a secued cedito, petitioned the Quebec Supeio Cout (Bankuptcy and Insolvency Division) in the matte of Ceda Canada's poposal unde the Bankuptcy and Insolvency Act. The objective was to foce the sale of the McConnell shaes, which was the most significant asset owned by Ceda Canada DTC 6458 at

9 (2000 DTC 6458 at 6461) 223(2) 223(3) 224(1) 225(2) 2000 DTC 6458 Fedeal Cout Tial Division Supeio Fedeal Couts June 19, 2000 Rouleau [11] On Febuay 17, 1999, the Quebec Supeio Cout (in bankuptcy) diected Richte and Associates Inc. to sell the McConnell shaes fo $84,000,000 (Austalian funds), to eceive the funds and deposit them into a tust account in a Canadian chateed bank to be dealt with in accodance with the applicable povisions of the Civil Code of Quebec and the Civil Code of Pocedue. [12] On Febuay 19, 1999, Wellgate filed a claim with Richte and Associates Inc. claiming the $4.8 millions U.S. due unde the Settlement and Release Ageement which had been assigned to it by Sevices M. L. Maengèe Inc. and othes. [13] It is alleged, unde the Cedit Ageement of Apil 6, 1998, that Wellgate made available to Ceda Canada a loan in the amount of U.S. $4,800,000 which was secued by a specific chage on the McConnell shaes. [14] Having eassessed Sevices M. L. Maengèe Inc. fo the taxation yeas 1995, 1996 and 1997 and having assessed the copoation fo the 1998 taxation yea, and being awae of the claim by Wellgate, on Mach 15, 1999, the Ministe issued to Richte and Associates Inc. Requiements to Pay unde subsection 224(1) of the Income Tax Act, naming Wellgate Intenational Ltd. as a "tax debto". On the same day, the Ministe tansmitted a numbe of lettes unde the same section of the Act to vaious paties, equiing them to pay to the Ministe amounts payable by them to Sevices M.L. Maengèe Inc. and/o Wellgate Intenational Ltd. [15] Wellgate Intenational Ltd. now bings an application in file T fo judicial eview seeking an ode setting aside the Requiement to Pay notices issued by the Ministe unde subsection 224(1) of the Act alleging pimaily that it is not a "tax debto" and only Sevices M.L. Maengèe Inc. could be so descibed. [16] The Ministe then bought an ex pate motion befoe this Cout unde Rules 449 and 451 of the Fedeal Cout Rules fo a ganishment ode against Sevices M.L Maengèe Inc., Richte & Associates Inc., and Wellgate Intenational Ltd. By ode dated July 19, 1999, the Cout ganted the ganishment ode in favou of the Cown. A heaing was scheduled to poceed on Novembe 3, 1999 befoe Pothonotay Moneau with espect to obtaining a final ganishment ode. The heaing was escheduled to the week of Apil 11, 2000, at which time it was ageed by the paties that since the application in file ITA dealt with the same issues as those aised in the judicial eview application in T , the mattes would be head togethe. That heaing took place befoe me in Monteal on Apil 18, [17] I have given caeful consideation to the aguments and submissions of the paties and am satisfied that the pope couse to follow in both applications is to stay these 6

10 mattes pending the final disposition of an ongoing action in the Quebec Supeio Cout (cout file no ) commenced Septembe 23, In the action befoe the Supeio Cout of Quebec, the Ministe is seeking to set aside the tansfe of the beneficial inteest that Sevices M.L. Maengèe Inc. has assigned to Wellgate claiming faud and ultimately setting aside the copoate veil. [18] Wellgate disputes owing any money to Revenue Canada and futhe denies any esponsibility fo the alleged debts of Sevices M.L. Maengèe Inc. The undelying basis of the Ministe's position on the othe hand, is that the validity of the tansactions and contacts enteed into in Apil of 1998 ae faudulent and invalid theeby endeing Wellgate esponsible fo the money owed. [19] The Ministe agues in his submissions that thee is no possible claim that Wellgate can asset vis-à-vis the Ceda Goup since thee was no consideation advanced by Wellgate to the Ceda Goup pusuant to the ageement enteed into on Apil 6, 1998 and since thee was no actual loan the contact should be set aside. He elies on Aticle 2314 of the Quebec Civil Code which states as follows: At Le simple pêt At A simple loan is est le contat pa lequel a contact by which the le pêteu emet une lende hands ove a cetain cetaine quantité d'agent quantity of money o othe ou d'autes biens qui se popety that is consumed consomment pa l'usage à by the use made of it, to l'empunteu, qui s'oblige the boowe, who binds à lui en ende autant, de himself to etun a like même espèce et qualité, quantity of the same kind apès un cetain temps. and quality to the lende afte a cetain time. [20] He futhe assets that the assignment between Sevices M.L. Maengèe Inc. and othes to Wellgate should be set aside because of the doctine of simulation and efes the Cout to Aticle 1451 of the Quebec Civil Code which povides as follows: At Il y a At Simulation simulation losque les exists whee the paties paties conviennent agee to expess thei tue d'expime leu volonté intent, not in an appaent éelle non point dans un contact but in a secet contat appaent, mais dans contact, also called a un contat secet, aussi counte lette. appelé conte-lette. Between the paties, a Ente les paties, la counte lette pevails 7

11 conte-lette l'empote su le contat appaent. ove an appaent contact. (2000 DTC 6458 at 6462) 223(2) 223(3) 224(1) 225(2) 2000 DTC 6458 Fedeal Cout Tial Division Supeio Fedeal Couts June 19, 2000 Rouleau [21] He then efes me to Aticle 1452 of the Quebec Civil Code stating that thid pesons in good faith have a ight to claim an inteest: Aticle Les ties de Aticle Thid pesons bonne foi peuvent, selon in good faith may, leu intéêt, se pévaloi accoding to thei du contat appaent ou de inteest, avail themselves la conte-lette, mai s'il of the appaent contact o suvient ente eux un the counte lette; conflit d'intéêts, celui howeve, whee conflicts of qui se pévaut du contat inteest aise between appaent est péféé. them, pefeence is given to the peson who avails himself of the appaent contact. [22] He futhe submits that this tansaction is fictitious and disguises tue meaning; that thee was in fact an intent to deceive and the ageement should be set aside. [23] He also efes to Aticles 317 and 1631 of the Quebec Civil Code stating that the ageement should be set aside because of faud and that a debto cannot ende himself insolvent in such a way as to defeat a valid cedito and that such conduct o ageement may be set aside: Aticle 317. La pesonnalité juidique d'une pesonne moale ne peut ête invoquée àl'enconte d'une pesonne de bonne foi, dès los qu'on invoque l'abus de doit ou une contavention à une ègle intéessant l'ode public. Aticle 317. In no case may a legal peson set up juidical pesonality against a peson in good faith if it is set up to dissemble faud, abuse of ight o contavention of a ule of public ode. 8

12 Aticle Le céancie, s'il en subit un péjudice, peut faie déclae inopposable à son égad l'acte juidique que fait son débiteu en faude de, ses doits, notamment l'acte pa lequel il se end ou cheche à se ende insolvable ou accode, alos qu'il est insolvable, une péféence à un aute céancie.. Aticle A cedito who suffes pejudice though a juidical act made by his debto in faud of his ights, in paticula an act by which he endes o seeks to ende himself insolvent o by which, being insolvent, he gants pefeence to anothe cedito may obtain a declaation that the act may not be set up against him [24] Finally, the Ministe seeks to have the Cout lift the alleged copoate veil and find that Wellgate is nothing moe than a figuehead fo Sevices M.L. Maengèe Inc. In shot, the integal question hee and its esolution encompasses the validity of contacts enteed into between pivate paties. As a esult, I have gave doubts as to whethe this Cout has juisdiction to entetain these mattes. [25] The Supeme Cout of Canada has developed a thee-ponged test fo the detemination of Fedeal Cout juisdiction. In ITO-Int. Teminal Opeatos Ltd. v. Miida Electonics Inc., [1986] 1 S.C.R. 752, the Cout stated at p. 766: The geneal extent of the juisdiction of the Fedeal Cout has been the subject of much judicial consideation in ecent yeas. In Quebec Noth Shoe Pape Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R and in McNamaa Constuction (Westen) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the essential equiements to suppot a finding of juisdiction in the Fedeal Cout wee established. They ae: 1. Thee must be a statutoy gant of juisdiction by the fedeal Paliament. 2. Thee must be an existing body of fedeal law which is essential to the disposition of the case and which nouishes the statutoy gant of juisdiction. 3. The law on which the case is based must be a "law of Canada" as the phase is used in s. 101 of the Constitution Act, [26] In ode to satisfy the second equiement fo this Cout's juisdiction, the existing body of fedeal law must be "essential to the disposition of the case" and must "nouish" the statutoy gant of juisdiction. The question which continues to aise in cases aising a 9

13 juisdictional issue is how much fedeal law is sufficient to confe juisdiction. In McNamaa the Supeme Cout held that the mee fact that the fedeal Cown is plaintiff is not enough. No is it enough that the cause of action depends upon anothe cause of action that is within the Cout's juisdiction. In R. v. Thomas Fulle Const. Co. (1958) Ltd., [1980] 1 S.C.R. 695, the majoity of the Supeme Cout ejected the agument that a thid paty poceeding by the Cown fo contibution and indemnity against a pivate paty came within the Fedeal Cout's juisdiction because it aose fom and was dependent upon the plaintiff's claim against the Cown, which itself was founded upon fedeal law. The majoity held that the Fedeal Cout was without juisdiction to entetain the thid paty poceeding because fedeal law could not be said to embace the issues on the thid paty notice, since that claim aose not out of liability of the Cown, but only out of the contact of indemnity and the povincial legislation. [27] The question of the Cout's juisdiction was again canvassed by Bastaache, J. of the Supeme Cout of Canada in the case Canadian Human Rights Commission v. Canadian Libety Net, [1998] 1 S.C.R Thee is no doubt that in this paticula case the Cout was dealing with a fedeal tibunal ove which the Fedeal Cout of Canada had some supevisoy juisdiction DTC 6458 at 6463 The Supeme Cout analyzed and put fowad cetain tests fo detemining the existence of juisdiction as opposed to the appopiateness of execising juisdiction. At page 653, Bastaache, J. wote the following passage fom Pofesso Hogg: (2000 DTC 6458 at 6463) 223(2) 223(3) 224(1) 225(2) 2000 DTC 6458 Fedeal Cout Tial Division Supeio Fedeal Couts June 19, 2000 Rouleau Section 101 does not authoize the establishment of couts of geneal juisdiction akin to the povincial couts. It only authoizes couts "fo the bette administation of the laws of Canada". This has two impotant consequences. Fist, it means that the Fedeal Cout of Canada has no inheent juisdiction; its juisdiction is confined to those subject mattes confeed upon it by the Fedeal Cout Act o othe statute. Secondly, it means that the Fedeal Cout can be given juisdiction ove only subject mattes govened by the "laws of Canada". [28] At pages , Bastaache, J. wote the following: As is clea fom the face of the Fedeal Cout Act, and confimed by the additional ole confeed on it in othe fedeal Acts, in this case the Human Rights Act. Paliament intended to gant a geneal administative juisdiction ove fedeal tibunals to the Fedeal Cout. Within the sphee of contol and execise of powes ove administative decisionmakes, the powes confeed on the Fedeal Cout by statute should not be intepeted in 10

14 a naow fashion. This means that whee an issue is clealy elated to the contol and execise of powes of an administative agency, which includes the inteim measues to egulate disputes whose final disposition is left to an administative decision-make, the Fedeal Cout can be consideed to have a plenay juisdiction. [29] He went on to conclude: Many fedeal Acts do not povide fo the execise of administative decision-making authoity. Whee that is the case, the easoning adopted hee with espect to the boad supevisoy juisdiction of the Fedeal Cout is inapplicable. I do not believe that anything in this appoach undemines the special position of s. 96 couts, o that thee is any likelihood of s. 101 couts acting beyond thei constitutional competence. The thid equiement of the ITO, supa, test that the law be a constitutionally valid law of Canada guaantees that fom a doctinal pespective. Fom an institutional pespective, i [sic] believe the ultimate guaantee is povided by this Cout, whose pupose is to seve as the cout of appeal fo the fedeal and each povincial supeio cout system, and to ensue tahat each emains within its juisdictional limits. No should anything which I have said in the foegoing be taken to undemine the longestablished pinciple that whee thee is no fedeal law in a matte of fedeal juisdiction, povincial supeio couts continue to have juisdiction by vitue of the doctine of inheent juisdiction. Even whee fedeal law has been enacted, but thee is no administative decision-make subject to the opeation of the Fedeal Cout Act o any othe gant of juisdiction to the Fedeal Cout in the Act in question, then s. 96 couts continue to execise an inheent juisdiction. (emphasis added) [30] I find that easoning equally applicable to the mattes now befoe me. When the "conclusions of the action" ae examined hee, it is clea that the Cown is not simply seeking to ealize a debt of the judgment debto. On the contay, what the Ministe is endeavouing to establish is that cetain ageements and contacts enteed into between pivate paties ae invalid and faudulent. Accoding to the Cown, if a finding of that natue is made, thee could be no question that the applicant owes the money in question and that the Requiement to Pay notices issued unde section 224 of the Income Tax Act wee pope and that a final ganishment ode unde the Fedeal Cout Rules is waanted. [31] In Le Bois de Constuction du Nod (1971) Ltée. v. The Queen [1986] 2 C.T.C. 227, the judgment debto, a company incopoated unde the Quebec Companies Act, was insolvent. Its only assets wee pomissoy notes. The company declaed a dividend of the amount due in on the notes. The notes wee then eplaced by notes in favou of the shaeholdes of the company. One of the shaeholdes and diecto of the company was also one of the patnes indebted unde the notes. The Ministe issued an assessment, egisteed it with the Fedeal Cout and obtained a povisional ode of seizue against the patnes. They appealed on the basis that they owed nothing. The Cown contested the 11

15 patnes' declaation that they did not owe any money, asking, inte alia, that the eplacement of the pomissoy notes be declaed illegal, faudulent and of no effect. The appellant's agued that the Cown's application was beyond the juisdiction of the Fedeal Cout as a matte of povincial law. [32] Maceau, J., in dissent, found that the Cout did not have juisdiction, stating his easons in pat as follows: The Cout's powe to ule on a point of povincial law which aises incidentally in the couse of execising its pope juisdiction is not in any doubt. It is clea that the powe confeed on the Cout to dispose of an action is not limited to that of uling on the existence of the ight claimed, but caied with it that of ensuing by legal means that the judgment is enfoced. Othewise its function would be a puely academic one. The powe of juisdiction implies the complementay one of compulsoy execution, a powe of execution which, be it said in passing, is necessaily the same whateve the souce of the powe of juisdiction, that is, whateve the Act of the Paliament of Canada on which the judgment is based. Just as the Cout has the powe to ule on a question of povincial law which aises incidentally in the couse of execising its juisdictional powe, so it has the powe to 2000 DTC 6458 at 6464 dispose of a question of povincial law which aises in execising its powe of execution. Accodingly, it cannot be concluded meely fom the fact that in the case at ba the objection made by the espondent to negative declaations ises question of povincial law that the Cout does not have juisdiction to detemine (2000 DTC 6458 at 6464) 223(2) 223(3) 224(1) 225(2) 2000 DTC 6458 Fedeal Cout Tial Division Supeio Fedeal Couts June 19, 2000 Rouleau The fact emains howeve that, even though what the appellants said in suppot of thei agument cannot be accepted, the agument itself may still have some basis. The powe of the Cout to conside the espondent's objection depends on one essential condition, namely that the poceeding is meely a phase of compulsoy execution, and to detemine whethe this condition is met it must fist be asked what is involved in compulsoy execution of a judgment which odes a paty to pay a sum of money, as is the case hee.... theefoe, the question is whethe the espondents's objection in the case at ba is in fact still within the limits of compulsoy execution. It can eadily be seen fom examining the conclusions of the action that it is not. The espondent does speak of a "faudulent tansaction", but the Cout must look at exactly what is involved. The espondent does not dispute that the ganishees did actually pay thei debt to the shaeholdes: what she is 12

16 asking if I undestand coectly is that the declaation of a dividend be uled illegal and be voided, thus making it clea that the debt to the shaeholdes was only appaent, which would establish that the tansfe of payment was a puely gatuitous act towads them. Even that is not all, fo even if the tansfe of payment and the payment wee gatuitous, it does not follow that the ganishees should pay again as if they had not made the payment. The payment is a matte of fact and it extinguished the debt. Fo the ganishees to be equied to pay again, thee would have to b a debt equivalent to that extinguished, but based on some othe cause that the one giving ise to the initial debt. I suppose it is quite possible fo the Cout to have the legal powe to give effect to this goup of claims on poof of faud, povided that all the paties concened ae in cout, the shaeholdes as well as the membes of the patneship, and possibly the othe ceditos as well, and thei position could then be detemined, each in espect of the othes, that is, who owes who and on what basis; but I think it is clea that the focus of such a goup of claims is no longe simply distaint on the assets of the debto and is completely outside the scope of execution poceedings. The espondent is not seeking to ealize a debt of the judgment debto, she is seeking to execise an action which belongs only to he. In my opinion, this Cout does not have juisdiction to entetain it. (emphasis added) [33] In agument befoe me, counsel fo the Cown admitted that what the Ministe is seeking is a lifting of the copoate veil and a finding that Wellgate Intenational is nothing moe than a figuehead fo Sevices M.L. Maengèe Inc. As suggested by Maceau, J., I suppose it is possible fo this Cout to have the powe to give effect to the Cown claims on poof of faud povided that all of the paties involved ae in Cout. But, as in Le Bois de Constuction du Nod, the focus of the Cown's position is no longe simply on the assets of the judgment debto. Instead, the judgment debto denies owing the money because of the validity of ageements between pivate paties while the Cown's position is based entiely on thei invalidity. What of the inteest of Matossian and Amyot who claim some beneficial inteest in the $4.8 million U.S. pomissoy note? [34] The contactual issue theefoe, cannot be consideed to be in some way incidental to the Cout's juisdiction no is it meely a phase of compulsoy execution. Neithe the Income Tax Act, which confes juisdiction on the Cout to eview the Ministe's discetion in issuing the Requiement to Pay notices, no the Fedeal Cout Rules, which gant juisdiction to issue a final ganishment ode, can in any way seem to bestow o nouish juisdiction on this Cout to undetake an examination of the cicumstances suounding the tansactions and ageements in question and to make a detemination with espect to the Cown's allegations of faud, allegations which concen incidents that occued some 8 months pio to this event. The question to be detemined hee and the emedies being sought ae, in my view, completely outside the scope of execution poceedings o judicial eview. [35] It should always be foemost in ou mind that the Fedeal Cout has no juisdiction except that assigned to it by statute. The complete ouste of juisdiction fom the 13

17 povincial supeio couts in favou of vesting exclusive juisdiction in a statutoy cout equies clea and explicit statutoy woding. [36] In any event, even if I am wong with espect to the juisdictional question, a esolution of the issues involved hee can not be faily o adequately achieved on the basis of affidavit evidence alone, by this o any othe Cout. The allegations of faud being made by the Ministe ae pofound and have fa-eaching consequences, not only fo the paties to the litigation, but fo the othe signatoies of the impugned ageements as well. A detemination of that natue equies that the best evidence be available to the Cout, namely, viva voce evidence subject to vigoous and meaningful coss-examination. It is undestandable that the best evidence is not available hee since the applications now befoe me ae clealy intended to be dealt with in a summay fashion. The elevant sections of the Income Tax Act and the Fedeal Cout Rules wee neve intended to deal with complex and inticate disputes of this natue no ae they pocedually designed to allow fo the type of inquiy which needs to be undetaken DTC 6458 at 6465 (2000 DTC 6458 at 6465) 223(2) 223(3) 224(1) 225(2) 2000 DTC 6458 Fedeal Cout Tial Division Supeio Fedeal Couts June 19, 2000 Rouleau [37] Given the uncetainty concening the Fedeal Cout's juisdiction and the inadequacy of summay poceedings fo esolving the complex and difficult questions involved, I am convinced that the Quebec Supeio Cout, whee an action has aleady been commenced, and which unquestionably has juisdiction ove the impugned contacts, is the pope foum fo the esolution of the dispute between the paties. [38] Fo these easons, both applications ae stayed pending the final disposition of the action in the Quebec Supeio Cout (cout file no ) o, in the altenative, esolution by the Fedeal Cout of Appeal o the Supeme Cout of Canada ultimately detemining the juisdiction of the Cout in this matte. The monies which have been deposited into a joint tust account by Richte & Associates in accodance with an ageement enteed into by the paties on July 23, 1999, ae not to be eleased until all issues have been esolved in the Quebec Supeio Cout, the Fedeal Cout Tial Division, the Fedeal Cout of Appeal o any othe cout of competent juisdiction. 14

18 ii) Le bien doit avoi été tansféé en faude du fisc Ministe of National Revenue (Plaintiff) v. Roge Papy (Defendant) and Candide Michaud and Geoges Dionne (Opposants) and Roland Daigneault (Mis-en-cause) 72 DTC 6474 Fedeal Cout Tial Division Septembe 22, 1972 Collection of unpaid taxes Ministe's cetificate egisteed in Fedeal Cout Seizue of cetain popeties Opposition to seizue by alleged ownes of popeties in question Income Tax Act, R.S.C. 1952, ss. 119(1) and (2) [see ss. 223(1) and 223(2) of the new Act]. It was established in a cetificate filed by the Ministe in the Fedeal Cout that the defendant owed a sum of moe than $80,000 in back taxes and accumulated inteest. Pusuant to a wite of seizue issued by the Cout, seveal popeties appaently owned by the defendant wee seized. Afte this, two individuals filed oppositions in espect of these seizues, alleging that they owned the popeties in question exclusively and that the defendant had no ight to them. While admitting that these popeties appeaed to belong to the opposants, the Ministe contended that the documents designed to establish this fact wee simulated and dawn up solely in ode to withdaw them fom the opeation of the law. The Ministe asked the Cout to declae these documents void and fictitious and to uphold the execution of judgment against the defendant. Held: The documents by which the defendant was alleged to have tansfeed owneship in the popeties to the opposants wee void, as being simulated and false and made to defaud his ceditos. The defendant was the tue owne of the popeties. The evidence on examination and at the heaing disclosed such an extensive seies of inconsistencies, contadictions and inexactitudes that the testimony given by the defendant and the opposants had to be completely ejected. The only conclusion to be eached was that the deeds by which the defendant pupoted to tansfe owneship in his popeties to the opposants wee caied out fo the sole pupose of attempting to defaud the defendant's ceditos. Thee was no doubt that a tansfe of popety could be declaed void when such a conclusion esulted fom gave, specific and consistent pesumptions. In the pesent instance such pesumptions wee moe than sufficient to conclude that all the alleged sales wee in fact simulated and faudulent tansfes of popety. Counsel: Denis Bouffad and Yvon Bisson fo the Ministe. Antoine Chagnon fo the defendant; Claude Nadeau fo the opposants. 15

19 Befoe: Noël, A.C.J. 223(1) 223(2) 72 DTC 6474 Fedeal Cout Tial Division Supeio Fedeal Couts Septembe 22, 1972 Noël THE ASSOCIATE CHIEF J: Upon the filing by the Ministe of National Revenue of a cetificate establishing that, in accodance with assessments issued on Decembe 28, 1960, defendant Roge Papy owed the sum of $53, in income tax aeas fo the yeas 1954, 1955, 1956, 1957 and 1958 and in addition theeto an inteest at six pe cent on the sum of $29, fom Septembe 1, 1966 to the date of payment, which cetificate gas ecoded at the Excheque Cout of Canada on Januay 23, plaintiff was accodingly awaded judgment fo the afoementioned amount against defendant Papy, in application of s. 119(2) of the Income Tax Act. A wit of seizue was subsequently issued by this Cout (then the Excheque Cout), dated Januay 23, 1967, and the following popeties wee seized: 72 DTC 6474 at 6475 (72 DTC 6474 at 6475) 223(1) 223(2) 72 DTC 6474 Fedeal Cout Tial Division Supeio Fedeal Couts Septembe 22, 1972 Noël (1) an immovable situated in the city of Jacques-Catie, known as No Chatham Steet; (2) an immovable situated in the city of Jacques-Catie, known as No. 614 Matel Steet; (3) a site located in the city of Jacques-Catie, known as No Pine Steet; (4) an immovable located in the city of Jacques-Catie, known as No of the said Chambly Road; (5) a vacant lot situated in the city of Jacques-Catie, fonting on Chambly Road. Geoges Dionne filed an opposition to the seizue of immovables (1), (2) and (3) mentioned above, and Candide Michaud did likewise fo immovables (4) and (5). The two oppositions, which wee dafted in English, both contain simila allegations, to wit: 1. THAT he is the sole and tue popieto of the immoveable popeties seized heein and the defendant has no ight, title o inteest in o to the immoveable popeties seized; 16

20 2. THAT the immoveable popeties seized heein belong to Opposant exclusively, the whole as appeas fom a copy of Deed poduced as Exhibit 0-1; 3. THAT the seizue of the immoveable popeties heein is illegal, null and void. Both oppositions wee contested by the Ministe of National Revenue in identical allegations. Opposants' allegations denied by Ministe The Ministe denies all and evey one of the allegations of the two opposants. He admits that the immovables seized appea to be the popety of the opposants, but (contends) that the documents designed to establish this fact ae simulated and dawn up solely in ode to withdaw them fom the opeation of the law, He states that the opposants ae only the pête-nom of defendant Papy, a fact which, he adds, the latte has admitted. In the Ministe's submission defendant is the sole popieto of the seized immovables, and the oppositions befoe the Cout wee made by the Opposants on the instuctions of defendant Papy solely with a view to delaying execution of the judgment. He, theefoe, asks that this Cout declae the alleged deeds void, simulated and fictitious, that it ode the mis-en-cause, the Regista of the Registy Office, Chambly Division, Distict of Monteal, to egiste the judgment to be given in the ecods of the said Registy Office, dismiss the oppositions and uphold the wit of execution and the contestations. Defendant's backgound As defendant Papy filed no income tax etuns fo the yeas 1954, 1955, 1956, 195 and 1958 he was assessed on a net woth basis following an inquiy by the Depatment of National Revenue, and on Decembe 28, 1960 he eceived notice of assessments fo the yeas 1954, 1955, 1956, 1957 and At that time, Roge Papy was the owne of cetain immovables on which no lien o motgage was ecoded, namely the immovable located at 614 Matel Steet, in the City of Jacques-Catie, the municipal valuation of which was $7,720; 2517 Chatham, in the City of Jacques-Catie, the municipal valuation of which was $4,660; 1897 Pine Steet, Town of Lemoyne, County of Chambly, the municipal valuation of which was $4,400. These popeties ae now egisteed in the name of Geoges Dionne. Papy sold 2104 Chambly Road, City of Jacques-Catie, County of Chambly, valued at $4,400, on Febuay 12, 1959, and it is now egisteed in the name of Candide Michaud, Geoges Dionne puchased the two popeties located at 2517 Chatham Steet, Jacques-Catie City, and 614 Matel Steet, Jacques-Catie City, following the sale of these popeties fo unpaid taxes on Decembe 11, 1962, fo $ and $ espectively. The thid popety. namely the one located on Pine Steet, was bought by Geoges Dionne fo the sum of $500, and he states he futhe paid $900 in tax aeas to the Town of Lemoyne. The latte tansaction, accoding to Dionne, took place on Apil 5, 1963 o theeabouts. Fist opposant's testimony and backgound 17