Seizures before judgment: A new interpretation

January 2005

Seizures before judgment: A new interpretation

bouton-vers-francaisVincent Piazza
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The Code of Civil Procedure (C.C.P.) provides that in the course of legal proceedings, the plaintiff may, with the authorization of a judge, seize before judgment the property of the defendant, when there is reason to fear that without this remedy the recovery of his debt may be put in jeopardy.1
 
A seizure before judgment is a measure which only purports to place the seized property in the hands of justice pending suit2. It is also referred to as an extraordinary measure, because at this stage of the proceedings, the two parties have not yet had the opportunity to submit their respective arguments.
 
Given that the only objective of a seizure before judgment is to ensure that, at the end of the proceedings, the enforcement of the final judgment will not be illusory, the law grants the defendant the possibility of providing a guarantee to the seizing creditor in lieu of the seized property.3
 
However, until very recently, the case law4 and the doctrine5 both agreed on the fact that a defendant whose immovable had been seized before judgment could not avail itself of this possibility. These authorities held that this recourse was available only for seizures before judgment of movable property.
 
It seems that Mr. Justice Gilson Lachance of the Court of Québec, in a judgment rendered on September 17, 2004,6 is the first judge to have set aside this constant interpretation of article 739 C.C.P. In that case, the defendant, whose immovable had been seized, argued that this interpretation was no longer consistent with the text of article 739 C.C.P., following the amendment of that article as part of the reform of the Civil Code more than ten years earlier.7
 
The interpretation was based on the former wording of article 739 C.C.P. whose first paragraph read as follows:

The defendant may prevent the removal of the seized property by giving the seizing officer sufficient guarantee chosen by the defendant.

Given that only a movable item can be "removed", the case law had determined that this article could not apply to seizures before judgment of an immovable. However, since January 1, 1994, the first paragraph of article 739 C.C.P. reads as follows:
 
The defendant may prevent the removal of the seized property or be released from the seizure by giving the seizing officer sufficient guarantee chosen by the de fendant.
 
Mr. Justice Lachance recognized that by introducing this amendment, the Legislature had manifestly intended to extend the application of article 739 C.C.P. to seizures before judgment of immovable property.
 
It is surprising that legal commentators have not noticed the anachronistic nature of the Ducros judgment, cited hereinabove, which was rendered by the Superior Court more than four years after the amendment. Nevertheless, one must hope that subsequent caselaw will adopt this new interpretation which appears entirely consistent with the Legislature's reasons for the amendment to article 739 C.C.P. which came into force over a decade ago.
 
N.B. The author of this text represented the defendant before Mr. Justice Lachance

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[1] Article 733 of the Code of Civil Procedure (C.C.P.).
[2] Article 737 C.C.P.
[3] Article 739 C.C.P.
[4] Ducros v. Roland, (1998) R.D.I. 657 (C.S.); REJB 1998-09368 (C.S.).
[5] In particular, Charles BELLEAU, "Les mesures provisionnelles", in Denis FERLAND and Benoît ÉMERY (dir.), Précis de procédure civile du Québec, 4th ed., vol. 2, Cowansville, Éditions Yvon Blais, 2003, p. 408; Code de procédure civile annoté et jurisprudence, Farnham, CCH/FM, Livre V, p. 69; Hubert REID and Claire CARRIER, Code de procédure civile, jurisprudence et doctrine, Coll. Alter Ego, 20th ed., Montréal, Wilson & Lafleur, 2004.
[6] The summary of the judgment was published by the Société québécoise d'information juridique in Jurisprudence Express 2004-2044 and the full text is available online, at no cost, at http://www.jugements.qc.ca/.
[7] An Act respecting the implementation of the reform of the Civil Code, S.Q. 1992, c. 57, s. 361.

This bulletin provides general comments on recent developments in the law. It does not constitute and should not be viewed as legal advice. No legal action should be taken on the basis of the information contained herein.

 

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