Civil law : transparency when requesting a seizure before judgement
In a decision rendered in December 2015 (and confirmed by the Court of Appeal in February 2016), the Superior Court decided to quash a seizure before judgement that had been practiced in escrow. The Court reiterated several principles that had previously been established by the Court of Appeal, namely the plaintiff’s obligation to be transparent and to establish an objective fear that the recovery of his claim is jeopardized (Grande National Leasing inc. v. Le Groupe Adapté Handi Services inc., 2016 QCCA 179).
THE FACTS
In September 2015, a first writ of seizure, based on the affidavits of the plaintiff and the defendant’s ex-employee, was issued. The release of this seizure was given by the plaintiff in October 2015, following an agreement reached by the parties on file.
On December 3rd, 2015, a second writ of seizure before judgement was issued on the basis of the same two affidavits. On December 7th, 2015, a motion to quash the seizure was served by the defendant. This motion was to be presented on December 9th, 2015. On December 8th, 2015, prior to the hearing of the defendant’s motion, a third writ of seizure was issued to the plaintiff by a judge who was unaware that the second seizure was to be contested the very next day.
On December 9th, 2015, the second seizure was quashed.
The Superior Court is asked to rule on the validity of the third seizure before judgement that had been practiced on December 8th, 2015.
THE SUPERIOR COURT’S DECISION
After having considered the arguments presented by each of the parties, the Superior Court quashes the third seizure and draws the following conclusions :
1. The seizure before judgement is a conservative and extraordinary measure that is authorized by the Court only in exceptional circumstances.
2. When requesting the issuance of a new writ of seizure concerning a same claim, the asking party must inform the judge of all relevant circumstances surrounding the previous seizures concerning that claim.
3. A lack of transparency trivializes the judicial authorization that is required for the issuance of a writ of seizure before judgement.
4. The party requesting the writ must establish an objective fear that the recovery of his claim is jeopardized or that his debtors are seeking to evade the execution of an eventual judgement.
THE LESSONS TO BE LEARNED
1. Lack of transparency on the part of the asking party will be fatal to his request that a writ of seizure before judgement be issued.
2. The party asking the issuance of a writ of seizure before judgement must establish an objective fear that his claim is jeopardized or that his debtors are attempting to avoid their liabilities.
3. Repetitive seizures before judgement are not appropriate recovery methodsDubé Légal inc., Montréal civil litigation lawyers.
