Canada (National Revenue) v. Boily

Canada (National Revenue) v. Boily

On the balance of probabilities the Court found the sale and assignment constituted a gratuitous transaction made in fraud of the Crown's rights, that Boily was insolvent or rendered insolvent by the transaction, and therefore the sale and assignment are unenforceable against the Crown and the interim charging order must permanently encumber the immovable; costs awarded to the creditor.

Citation
2020 FC 490
Parties
Creditor: Her Majesty the Queen in Right of Canada; Judgment Debtor/respondent: Christian Boily; Garnishee: 9381-2592 Québec Inc.; Third Party: Luce Paquet
Court
Federal Court
Jurisdiction
Canada
Judgment Date
7 April 2020
Procedural Posture
Income Tax Recovery / Garnishment (certificate Under Income Tax Act) / Motion to Set Aside Interim Charging Order; Judgment on Motion
Outcome
Motion dismissed; sale and assignment declared unenforceable against the creditor; immovable permanently encumbered with a charge; costs awarded to the creditor.
Legal Topics
Paulian Action, Unenforceability of Transfers, Charging Order, Insolvency, Assignment of Sale Proceeds, Costs
Source Language
English
Tax Insolvency Property Law Civil Law (fraud/paulian Action) Paulian Action Unenforceability of Transfers Charging Order Assignment of Sale Proceeds +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 6 Authorities cited 11 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Her Majesty the Queen in Right of Canada

Creditor

Christian Boily

Judgment Debtor/respondent

9381-2592 Québec Inc.

Garnishee

Luce Paquet

Third Party

Procedural Posture

Income Tax Recovery / Garnishment (certificate Under Income Tax Act) / Motion to Set Aside Interim Charging Order; Judgment on Motion

Legal Issues

  1. 1 Whether the sale and assignment were made in fraud of the Crown under articles 1631 and 1633 CCQ
  2. 2 Whether the act was gratuitous within article 1381 CCQ and triggered the irrefutable presumption of fraud
  3. 3 Whether the debtor was insolvent at the time of the sale or rendered insolvent by it

Ratio Decidendi

On the balance of probabilities the Court found the sale and assignment constituted a gratuitous transaction made in fraud of the Crown's rights, that Boily was insolvent or rendered insolvent by the transaction, and therefore the sale and assignment are unenforceable against the Crown and the interim charging order must permanently encumber the immovable; costs awarded to the creditor.

Court Disposition

Motion dismissed; sale and assignment declared unenforceable against the creditor; immovable permanently encumbered with a charge; costs awarded to the creditor.

Orders

  • The motion of the judgment debtor, the garnishee and the third party to set aside the interim charging order dated August 19, 2019, is dismissed, with costs.
  • The sale and assignment of the immovable dated August 1, 2018, are unenforceable against the creditor.