Young v. Wolf Lake Band
T-1696-97
Denault J.
23/2/99
7 pp.
Application to have charging order set aside on ground funds in respondent's (judgment debtor's) account at Caisse populaire de Témiscaming protected from execution by virtue of Indian Act, ss. 89(1), 90(1)-S. 89(1) exempting from charge, levy, seizure, or execution personal property of band situated on reserve-Personal property situated off reserve may be deemed in certain specific circumstances prescribed in s. 90(1) to be situated on reserve-Judgment debtor claiming funds coming from agreement signed between federal government, Indian band, thus deemed to be situated on reserve under s. 90(1)(b)-Affidavit of chief of Wolf Lake Band testifying accordingly-Judgment creditor relying on Civil Code of Quebec, arts. 2860, 2862 for submission affidavit evidence inadmissible to establish source of account funds-Application allowed-Arts. 2860, 2862 not applicable as pertain to admissibility of juridical acts, which must generally be proven by a writing, not by testimony barring certain exceptions-Juridical act defined as expression of will to create, modify or extinguish right-Contracts, wills, waiver of rights examples of such acts-Judgment debtor herein required to prove funds in account come exclusively from agreement between Her Majesty, Indian band-Not juridical act, but fact, which according to Civil Code, art. 2811 can be proven by any means including testimonial evidence-Affiant's evidence therefore admissible-Corroboration of testimonial evidence not mandatory, except where imposed by statute or case law-No such circumstances here-In absence of corroboration, evidence must be carefully weighed: Weinberger, Jan V. v. Minister of National Revenue, [1964] Ex. C.R. 903-As judgment debtor not producing bank statement, other record in its possession to support allegation so central to its motion, little weight can be afforded to affiant's testimony-However, Court also faced with dearth of evidence-Judgment creditor not adducing evidence, but simply raising possibility account might contain funds other than those received under agreement-In absence of evidence to contrary, Court forced to rely on evidence of chief of Wolf Lake Band, accept account at Caisse populaire containing exclusively funds from agreement between federal government, Indian band-Under Indian Act, s. 90(1), those funds deemed to be situated on reserve, and by virtue of s. 89(1), not subject to levy, execution or garnishment in favour of any person other than Indian, band-Motion granted-Indian Act, R.S.C., 1985, c. I-5, ss. 89(1) (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 12), 90(1)-Civil Code of Quebec, S.Q., 1991, c. 64, Arts. 2811, 2860, 2862.