[2016] 3 F.C.R. D-7
Practice
Judgments and Orders
Reversal or Variation
Charging order — Appeal from order (2015 FC 440) denying motion filed by third party 9011-1345 Québec Inc. (9011), appellant under Federal Courts Rules, SOR/98-106, r. 462 to discharge charging order absolute (2008 FC 460) against immovable belonging to 9011 (order dated April 9, 2008) — Appellant’s brother, real estate investor, running up tax debt to Minister of National Revenue (Minister) — Appellant president of 9011, brother owning portion of shares in 9011 — Respondent obtaining order in question under r. 459 — Federal Court concluding, in order dated April 9, 2008, 9011 alter ego of appellant’s brother, used by brother to escape tax liabilities — Appellant subsequently buying back hypothecary claim on immovable, thereby becoming hypothecary creditor with priority over respondent — Motion by 9011, appellant filed under r. 462 (motion under appeal) seeking discharge of legal hypothec on immovable resulting from order dated April 9, 2008 — Federal Court (F.C.) concluding, inter alia, appellant, as shareholder, having no standing to act in matter, bound by order dated April 9, 2008 — Appellant claiming, inter alia, F.C. erred in concluding appellant had no standing under r. 462; rr. 458, 462 unconstitutional because violating protection against unreasonable seizures under Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 8 — Main issue whether appellant having necessary standing under r. 462 — Appellant not having necessary standing as hypothecary creditor or owner under r. 462 — Appellant’s right in immovable insufficient to grant appellant required interest to bring motion under r. 462 to discharge charge not affecting said hypothecary claim — Security held by appellant in immovable not affected by charge — Appellant wanted to benefit from two hats as hypothecary creditor, owner of immovable to circumvent 9011’s inability to challenge charge — Appellant, as shareholder in 9011, having no right of ownership in immovable — Right of ownership belonging to 9011 — Purpose of r. 462 not to grant right of appeal or review, but to allow discharge or variance of charge — R. 462 not having same meaning, scope as r. 399 whereby any interested person allowed to seek setting aside or variance of order in certain circumstances — Circumstances in r. 399 not present herein — Appeal dismissed.
Laquerre v. Canada (A-229-15, 2016 FCA 62, Nadon J.A., judgment dated February 19, 2016, 28 pp.)