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Date: 20001102 Docket: A-196-98
LÉTOURNEAU
IN THE MATTER OF THE INCOME TAX ACT BETWEEN: JACQUES BIRON Appellant AND: HER MAJESTY THE QUEEN Respondent Hearing held in Montréal, Quebec, Thursday, November 2, 2000 Judgment pronounced at the hearing in Montréal, Quebec, Thursday, November 2, 2000 REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Date: 20001102 Docket: A-196-98
LÉTOURNEAU
IN THE MATTER OF THE INCOME TAX ACT BETWEEN: JACQUES BIRON Appellant AND: HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Pronounced at the hearing in Montréal, Quebec Thursday, November 2, 2000) NOËL J.A. [1] This is an appeal from a decision of the Trial Division dismissing the appeal by Mr. Biron on the ground that he had no standing to bring or to prosecute his appeal. [2] The Tax Court of Canada first dismissed Mr. Biron's appeals from assessments issued in regard to his 1979 and 1983 taxation years for failure to appear. Four years later, and one year after learning of this decision, Mr. Biron applied for revocation of this judgment. The Court dismissed the motion. One of the two grounds for dismissal stated that Mr. Biron as a non-discharged bankrupt lacked standing under subsection 71(2) of the Bankruptcy and Insolvency Act.1 [3] Relying on the right of appeal under section 172 of the Income Tax Act,2 Mr. Biron appealed this decision to the Trial Division. On March 2, 1998, Mr. Justice Hugessen dismissed this appeal, repeating that Mr. Biron, as a non-discharged bankrupt, did not have standing to bring or to prosecute his appeal. The appeal before us is from this decision. [4] The appeal cannot succeed. Notwithstanding Mr. Biron's submissions, the Bankruptcy and Insolvency Act cannot be bypassed. Under that Act, bankruptcy divests the bankrupt of all his property, which then vests in the trustee. When the bankruptcy occurs, the trustee acquires, through the effect of section 67, all of the bankrupt's rights of action other than those of a personal nature and those affecting his exempt property (Préfontaine v. Desrosiers (1936), 40 R.P. 180 (Quebec S.C.)). Because the undischarged bankrupt does not have the power to sue, that power vests in the trustee (Hall-Chem Inc. v. Vulcan Packaging Inc. (1994), 28 C.B.R. (3d) 161 (Ont. C.A.)). [5] In the case at bar, the appeal record discloses that Mr. Biron attempted without success to obtain leave from the trustee to request the revocation of the judgment that the Tax Court of Canada had pronounced against him. He then appealed this decision under section 37 of the Bankruptcy and Insolvency Act, unsuccessfully to date, the appeal in this regard being pending at this point in the Quebec Court of Appeal. [6] Thus, as Hugessen J. found, Mr. Biron does not have the capacity to sue and he has failed to demonstrate that he obtained leave from the trustee to bring and to prosecute his appeal. [7] The respondent has raised in opposition to the appeal a preliminary objection that the trial judge did not comment on. She argues that section 172 of the Income Tax Act limits the right of appeal to decisions resulting from section 169, that is, decisions addressed to the merit of assessments issued under this Act. But the Tax Court of Canada decision that Mr. Biron appealed dealt with the motion for revocation of the judgment dismissing his appeal and not the decision dealing with the assessments that had been issued against him. The appropriate remedy, she says, would be an application for judicial review under section 28 of the Federal Court Act.3 [8] The respondent's position appears, prima facie, to have merit, but it is not necessary that we take a position on this question, since whatever the proper proceeding may be, it cannot be exercised as long as Mr. Biron remains an undischarged bankrupt or has not obtained, in the framework of his appeal to the Quebec Court of Appeal, leave to act. [9] The appeal will be dismissed with costs.
Certified true translation Suzanne M. Gauthier, LL.L., Trad. a. FEDERAL COURT OF CANADA APPEAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD
REASONS FOR JUDGMENT OF THE COURT: Décary, Létourneau, Noël, JJ.A. RENDERED AT THE HEARING BY: Noël J.A. APPEARANCES: Jacques Biron Representing himself Guy Laperrière For the respondent Yanick Houle SOLICITORS OF RECORD: Jacques Biron Representing himself Montréal, Quebec Department of Justice Canada For the respondent Montréal, Quebec __________________1 R.S.C. 1985, c. B-3, as amended. 2 S.C. 1970-71-72, c. 63 as amended. 3 R.S.C. 1985, c. F-7 as amended. |
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