Entreprises A.B. Rimouski Inc. v. Canada
A-874-96
Marceau, Desjardins, JJ.A.
26/6/98
18 pp.
Action for payment of amount owing on contract for demolition of old commercial wharf at Cap-Chat on St. Lawrence River and additional amount for losses incurred due to failure of Department of Public Works to fulfill contract-Concurrent claim by Aldège Banville for damages suffered personally due to same failure-Defendant alleged contract not performed in full and Department correct not to pay-Assignment of plaintiff company's property required in February 1993-All movable and immovable property assigned to Caisse populaire Desjardins of St-Robert de Rimouski which assigned in turn 75% of potential rights and interest in action still pending between plaintiff and Crown-Trial Judge dismissing action on ground remedies sought prescribed or without merit as clearly non-existent or based on assignments illegal under Financial Administration Act-Appeal allowed in part-Marceau J.A.: necessary to dismiss action for remedy sought by appellant, Aldège Banville, in own name as remedy necessarily delictual and plaintiff not establishing delictual act as direct cause of personal damage to Banville's reputation and solvency and remedy not exercised during period of prescription under Quebec law-Dismissal of action brought by plaintiff unfounded-Applicable period five-year prescription of former Civil Code, art. 2260 for contractual liability, not two-year prescription of art. 2261-Concerning "illegal" assignments, question of validity would arise only after judgment confirming existence of debt to company if such were case, and even then only for parties to case: trustee, Caisse populaire and of course Banville, sole shareholder of company-Not true that assignment totally void against respondent-Even if debt challenged in court, if alleged existence of debt directly related to contract, impossible to say not falling within exception of Financial Administration Act, s. 68(1)(a)-Also wrong to say assignment not absolute even if covering only 75% of debt-Finally, even though already held required notice strict condition for validity, condition sufficiently and validly met by amendments brought in pleadings-Desjardins J.A.: Carex v. Canada (1983), 46 N.R. 505 (F.C.A.) (in which Court found dismissal of an action brought by an assignee for recovery of Crown debt, on ground formal assignment procedures under Financial Administration Act, ss. 81(1), (2) not respected) distinguishable-Action in case at bar originally brought jointly by plaintiff and PDG and sole shareholder, Banville, and not by assignee-What matters for present to establish whether Crown debtor for amount claimed-If so, Trial Judge must then determine if assignment effective against respondent-Civil Code of Lower Canada, arts. 2260, 2261-Financial Administration Act, R.S.C., 1985, c. F-11, ss. 68(1), 81(1),(2).