Boudreau v. Boudreau

Boudreau v. Boudreau

The adverse claimant failed to discharge the onus of proving the requisite special or exceptional circumstances under Rule 371 to permit oral testimony on a motion; affidavit evidence was considered sufficient, therefore leave to call viva voce evidence was refused and the motion dismissed.

Citation
2006 FC 1019
Parties
Judgment Creditor: Deputy Minister of Revenue of Quebec (representing Her Majesty the Queen in Right of Canada under the Excise Tax Act); Debtor: Réal Boudreau; Adverse Claimant: Hilaire Boudreau
Court
Federal Court
Jurisdiction
Canada
Judgment Date
24 August 2006
Procedural Posture
Excise Tax Act – Review of Assessment/seizure / Written Motion Review Under Rules 369 and 371 (without Appearance)
Outcome
Adverse claimant's motion under Rule 371 dismissed without costs; adverse claimant authorized to file a new detailed affidavit and procedural directions given for further steps
Legal Topics
Excise Tax Act, Seizure, Real Property Objection, Motions Practice, Rule 371 — Viva Voce Testimony on Motion
Source Language
English
Tax Law Procedural Law Federal Court Practice Excise Tax Act Seizure Real Property Objection Motions Practice Rule 371 — Viva Voce Testimony on Motion

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Parties

Deputy Minister of Revenue of Quebec (representing Her Majesty the Queen in Right of Canada under the Excise Tax Act)

Judgment Creditor

Réal Boudreau

Debtor

Hilaire Boudreau

Adverse Claimant

Procedural Posture

Excise Tax Act – Review of Assessment/seizure / Written Motion Review Under Rules 369 and 371 (without Appearance)

Legal Issues

  1. 1 Whether Rule 371 authorization to call a witness for oral testimony on a motion should be granted
  2. 2 Whether the adverse claimant established the exceptional or special circumstances required to permit viva voce evidence instead of affidavit evidence
  3. 3 Whether affidavit evidence is sufficient to decide the real property objection to the seizure

Ratio Decidendi

The adverse claimant failed to discharge the onus of proving the requisite special or exceptional circumstances under Rule 371 to permit oral testimony on a motion; affidavit evidence was considered sufficient, therefore leave to call viva voce evidence was refused and the motion dismissed.

Court Disposition

Adverse claimant's motion under Rule 371 dismissed without costs; adverse claimant authorized to file a new detailed affidavit and procedural directions given for further steps

Orders

  • Adverse claimant's motion under Rule 371 is dismissed without costs
  • Adverse claimant is authorized to serve and file a new detailed affidavit in support of his objection within ten (10) days of the order