Mohawk Council of Kanesatake v. Sylvestre, 2023 QCCA 1603, 2025 SCC 30 (41131)
“The debtor is the governing body for an Indigenous community. The creditors are a lawyer and several experts in various fields who provided professional services to the debtor between 2001 and 2003. The debtor was, around the time the services were rendered, facing considerable financial difficulties, and the creditors were not paid for some of their work. In 2004, the creditors obtained default judgments against the debtor based on their outstanding claims and, on several occasions, tried to seize the debtor’s property in execution of the default judgments. In 2008, in exchange for a release from one of the seizures, the debtor acknowledged the creditors’ claims against it and recognized that these attempts initially interrupted the 10‑year prescription period in art. 2924 of the Civil Code of Québec (“C.C.Q.”) that applied to the creditors’ claims. Despite these enforcement efforts, the amounts remained unpaid.
In 2016, the creditors undertook measures to seize all of the debtor’s movable property. A bailiff, acting on the creditors’ instructions, filed a notice of execution for the seizure and served it on the debtor, in keeping with arts. 679 et seq. of the Code of Civil Procedure (“C.C.P.”). However, the bailiff eventually considered that the property was exempt from seizure and the seizure was never carried out. The bailiff prepared a record entitled “minutes of suspended execution”, which was not served on the debtor. The bailiff did not prepare minutes nulla bona attesting that he found no property to seize.
In 2020, the debtor sought a declaration from the Superior Court that the rights claimed by the creditors under the default judgments were prescribed. The debtor argued that the creditors’ unsuccessful efforts to execute the judgment in 2016 did not interrupt the 10‑year prescription period. The Superior Court and the Court of Appeal both disagreed and held that prescription was interrupted by the attempted seizure of property in the debtor’s possession, even if those measures were unsuccessful.”
The SCC (9:0) dismissed the appeal.
Justice Kasirer wrote as follows (at paras. 1-9, 45-46):
“In Quebec civil law, the right to the payment of money under a judgment is prescribed where the creditor fails to exercise the right in a timely manner. The period for “extinctive prescription” of rights resulting from most judgments is set at 10 years by art. 2924 of the Civil Code of Québec (“C.C.Q.”). If the creditor takes appropriate measures to execute the judgment in keeping with the Code of Civil Procedure, CQLR, c. C-25.01 (“C.C.P.”), prescription is interrupted and the 10-year clock starts again.
In this instance, the respondents — a lawyer and several others — furnished professional services to the appellant, the Mohawk Council of Kanesatake (“Council”), a “council of the band” within the meaning of s. 2 of the Indian Act, R.S.C. 1985, c. I-5 (see also Kanesatake Interim Land Base Governance Act, S.C. 2001, c. 8). When those services went unpaid, the respondents obtained default judgments against the Council. Prior to the expiry of the 10‑year prescription period, they sought to execute the judgments by seizing property belonging to the Council. They instructed a bailiff who then filed a “notice of execution” with the details of the proposed seizure in court and served that notice on the debtor, in keeping with arts. 679 et seq. C.C.P. But there is a wrinkle here: the debtor represents an Indigenous community whose property was understood by the bailiff to be exempt from seizure. In point of fact, the seizure was never carried out.
As a general rule, the filing and service of proceedings initiated by a creditor to seize their debtor’s property in execution of a judgment interrupts prescription pursuant to art. 2892 C.C.Q. Not surprisingly, where a judicial application is dismissed, the law deems that, retroactively, prescription was never interrupted. Article 2894 C.C.Q. sets this latter rule. The parties are at odds on the interpretation of these provisions of the C.C.Q., on whether the creditors acted diligently to interrupt prescription and, if so, whether interruption was retroactively deemed to have never occurred when the seizure was not carried out.
Does an unsuccessful attempt to seize a debtor’s property by notice of execution interrupt prescription? Both the Superior Court and the Court of Appeal answered yes. The debtor appeals, arguing that the creditors’ attempt to seize its exempt property in this case was a nullity. The notice of execution, which did not lead to a seizure of assets in the appellant’s possession, was meaningless. As a result, says the appellant, prescription was never interrupted and the 10-year prescription period has now expired. The respondents answer that the notice of execution began the proceedings for seizure and showed them to be diligent in pursuit of their judgment claims. The filing and service of the notice interrupted prescription even though the bailiff did not complete the seizure.
To resolve this appeal, the Court must undertake, in tandem, the interpretation of provisions of the C.C.Q. and the C.C.P. Specifically, this appeal draws into focus two interpretative principles that allow for a shared understanding of the law of the prescription in the C.C.Q. and the procedural rules in the C.C.P. relating to seizure of a debtor’s property.
Firstly, as this Court has made plain, these two enactments are both to be interpreted as codes in the civil law tradition (Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743, at paras. 39-40, citing Doré v. Verdun (City), [1997] 2 S.C.R. 862). Not only must the C.C.P. be interpreted “in keeping with the civil law tradition”, the fundamental law of civil procedure is to be read “together with the Civil Code” (Preliminary Provision, paras. 1 and 3) in a coordinated fashion, as two civilian codes, each with a distinct, but complementary, mission. The C.C.P.’s rules for execution of judgments and the C.C.Q.’s rules on interruption of prescription should be understood as forming a seamless web.
Secondly, the interpretation of the C.C.P. enacted in 2014 must be undertaken with an eye to the purpose of the reformed law of civil justice. Specifically, the legislature introduced the “notice of execution” as part of a [translation] “new judicial culture” that champions simple, efficient, and lower cost proceedings before the courts, including for the execution of judgments (see Comité de révision de la procédure civile, Une nouvelle culture judiciaire (2001), at pp. 33-34 and 229-31). Consonant with this reform, the C.C.P. has abandoned the “writ of execution”, an inheritance from English law that was sometimes seen in Quebec as overly formalistic and involving unnecessary procedural steps for the enforcement of judgments. When the law of procedure was recast in a new code, the writ was replaced by the notice of execution, a more efficient procedural act simply filed in court and served on the debtor by an impartial bailiff. In resisting the effects of the notice here, the appellant argues for a return to the formalism that the legislature has plainly sought to reject in the new law.
When the two codes are read in light of these principles, it is plain that the notice of execution is not a distinct procedural act but is part and parcel of the seizure as a “judicial application” that interrupts prescription pursuant to art. 2892 C.C.Q. The legislature intends to allow for interruption when the simplified notice of execution that begins the seizure is filed in court and served on the debtor.
In this case, the respondents filed their notice of execution commencing the seizure of the Council’s movable property before the end of the prescription period, thereby showing the requisite diligence to make good on their claim. Serving the notice of execution on the debtor fairly informed the appellant of the respondents’ intention to seize its movable property. When proceedings were introduced by the notice as part of the judicial application for seizure in 2016, prescription was interrupted under art. 2892 C.C.Q. The seizure was later suspended by a bailiff but not dismissed by a court, so it cannot be said that the interruption of prescription was retroactively deemed to have never occurred pursuant to art. 2894 C.C.Q.
…
…in its judgment granting leave in this case, the Court asked the parties to provide submissions addressing the applicability of s. 89 of the Indian Act and whether the movable property of the applicant is “situated on a reserve”. In my view, the circumstances of this case do not allow for a useful treatment of this third question. I agree with the parties that it is unnecessary to consider the full application of s. 89 of the Indian Act to dispose of the appeal. As was the case in the courts below, the dispute can be fully resolved by answering the questions of whether the filing and service of the notice of execution interrupted prescription and whether the fact that the seizure was unsuccessful affected that interruption. Moreover, the parties rightly suggest that addressing s. 89 without a proper factual record or meaningful guidance from the courts below would be unwise. I would leave consideration of s. 89 of the Indian Act to another day.”