mardi 25 octobre 2016

L'amende disciplinaire imposée après la date de faillite - mais avant la décharge - est une réclamation prouvable dans la faillite

par Karim Renno
Renno Vathilakis Inc.

Dans l'affaire Chambre de la sécurité financière c. Thibault (2016 QCCA 1691), la Cour d'appel devait répondre à la question de savoir si une amende imposée par un comité disciplinaire après la date de faillite du professionnel - mais avant sa décharge - constitue une réclamation prouvable dans la faillite. La Cour d'appel répond par l'affirmative à cette question dans un jugement unanime rendu sous la plume de l'Honorable juge Mark Schrager.

Dans cette affaire, l'Appelante se pourvoit contre un jugement de la Cour du Québec qui a rejeté une requête en homologation d'une sanction disciplinaire.

Les faits sont assez simples.

L'audition disciplinaire contre l'Intimé a lieu en octobre 2011 et février 2012. Le jugement prononçant la culpabilité de l'Intimé est rendu en octobre 2013. Après l'audition, mais avant le prononcé du jugement - en novembre 2012 - l'Intimé déclare faillite.

La question qui se pose donc est celle de savoir si l'amende disciplinaire prononcée par l'Appelante après le jugement de culpabilité est une réclamation prouvable dans la faillite ou si elle survie à celle-ci.

Au nom d'une formation unanime de la Cour, le juge Schrager en vient à la conclusion qu'il s'agit d'une réclamation prouvable et que la dette est donc éteinte une fois l'Intimé décharge de sa faillite. En effet, le juge Schrager indique qu'une dette dont l'existence est probable au moment de la faillite tombe sous l'égide de celle-ci:
[20]        It has been stated that in order to come within the definition of “claim provable”, the existence of the debt must be, at the date of the bankruptcy, probable and not hypothetical, or not too remote or speculative, as Appellant submits. 
[21]        In Chambre de la sécurité financière c. Harton, this Court, citing the authors Houlden and Morawetz, noted that in order to satisfy Section 121 BIA, a future claim (i.e. not actually payable on the date of the bankruptcy) must not be too remote or speculative while underlining that the purpose of Section 121 BIA is to include, as far as possible, every kind of claim so that upon discharge the bankrupt is in a position to make a fresh start. Rehabilitation of the debtor is recognized as a fundamental purpose of bankruptcy legislation. 
[22]        In the Harton judgment, this Court cited at length, with approval, the reasons of the judge of the Court of Quebec in Association des courtiers & agents immobiliers du Québec c. Fuoco, a decision in which a monetary penalty imposed by a disciplinary committee after bankruptcy was held not to constitute a claim provable because its imposition was only hypothetical at the date of the bankruptcy and the professional could have been acquitted or, if found guilty, subjected to a non-monetary penalty. This is in essence, Appellant's argument before us. This Court decided in Harton that, because no disciplinary complaint had yet been lodged by the Appellant on the date of the bankruptcy, it was not sufficiently probable that the bankrupt was subject to such claim on the date of the bankruptcy. Accordingly, the Court concluded that the fine was not a claim provable in bankruptcy. I would add that in Fuoco, the professional was charged and pleaded guilty to disciplinary offences approximately one year after his discharge from bankruptcy and two years after the commencement of the bankruptcy. It was only the facts giving rise to the offences charged which had occurred prior to the date of the bankruptcy. 
[23]        The situation presented by the case at bar is significantly different from the fact patterns in Harton and Fuoco. As set forth above the facts giving rise to the complaint, the commencement of the disciplinary proceeding, the hearing and the offer to plead guilty all occurred before the date of the bankruptcy. That the committee chose not to accept the guilty plea because it felt that Respondent had not sufficiently acknowledged the facts alleged, does not change the fact that the plea could have been accepted and the penalty could have been imposed prior to bankruptcy so that Respondent could have been subject to the claim as at the date of the bankruptcy, or could have become subject to the claim prior to his discharge, to borrow the wording of Section 121 BIA. It was not hypothetical but rather, probable in October 2011 (at the commencement of the hearing) that Respondent would be found guilty given his plea and absence of contestation. Thus, the imposition of some penalty was not hypothetical or remote at the date of the bankruptcy so that the monetary penalties are a claim provable. The judgment is not erroneous in concluding that, given the chronology of events, particularly that the fines were imposed before the discharge from bankruptcy, the debt was one "to which the bankrupt was subject before the bankrupt's discharge by reason of any obligation incurred before bankruptcy", again to borrow the wording of Section 121 BIA
[24]        Appellant has attempted to avoid this wording by suggesting that it applies to contractual or even extra-contractual liability but not to statutory liability in the nature of a sanction for a disciplinary matter. I disagree. The committee could have concluded that Respondent was guilty and imposed a penalty at or shortly following the initial hearing date (i.e. prior to the bankruptcy). In any event, I do not see a fundamental difference between this situation and one reflected in the cases where potential liability from litigation pending at the day of the bankruptcy was considered a provable claim; or where a conditional contractual obligation becomes absolute immediately after bankruptcy; or when a penal clause is triggered after bankruptcy but before discharge pursuant to a contract entered into prior to bankruptcy. All these situations reflect obligations for which the debtor was liable prior to bankruptcy but crystallized after the date of the bankruptcy. 
[25]        In Lotfi c. Québec (Procureur général), referred to in Harton, a guarantor was bound conditionally for certain sums in virtue of an immigration sponsorship contract signed before bankruptcy but would only become liable to pay when and if the conditions stipulated in the contract were realized. This occurred after bankruptcy and was claimed from the sponsor after his discharge from bankruptcy. The Superior Court found that since the indebtedness was conditional (as to its existence) and uncertain (as to the amount), it was not sufficiently probable to constitute a claim provable. While dismissing the appeal on other (procedural) grounds, our Court added that the debtor did not become liable to pay the amounts in question until they were claimed which occurred after his discharge from bankruptcy so that they did not constitute claims provable. This is not the case at bar where the penalties were imposed prior to discharge. The Court added that Re Schacter did not apply. That was a case where an amount coming due after bankruptcy under a penal clause triggered after the bankruptcy but before discharge pursuant to a contract signed prior to bankruptcy was deemed a claim provable. Such a situation (Re Schacter) is analogous to the present one as I have indicated above. 
[26]        In all cases, an inquiry should be made as to when the obligation was incurred. In this case, I believe the date was the hearing date when Respondent indicated that he was pleading guilty. However, even if that were not the precise date when the obligation was created, I believe that the long delay of the committee in rendering a decision finding Respondent guilty and then imposing the monetary sanction is relevant in determining that the fines imposed were claims provable. In this respect, the decision of the Supreme Court of Canada in Newfoundland and Labrador v. AbitibiBowater Inc. is relevant. Speaking through Justice Deschamps, the Court indicated that, in order to determine whether a claim is a claim provable, a factual inquiry is required to determine whether the conditions for the inclusion of the claim as a claim provable are met. Thus, in this case, it is facile to say that the fines had not yet been imposed on the date of the bankruptcy. The appropriate factual inquiry is whether, at the date of the bankruptcy, the conditions were met in order to affirm that a sanction would probably be imposed. In Harton (decided years prior to Abitibi) it could be said that the condition was not met. In the present case, not only was the hearing held before bankruptcy but the Respondent indicated that he would plead guilty thus making himself liable to a penalty. Once the committee would not accept his guilty plea, Respondent presented legal arguments based on the Charter, but that too occurred eight months prior to the bankruptcy. It is true that the imposition of a fine, as opposed to a purely non-monetary penalty, was discretionary. However, it is not erroneous to consider the imposition of a fine probable or at least more than hypothetical as at the date of the bankruptcy. As such, no palpable error of fact or mixed fact and law appears from the judgment of the Court of Quebec despite the judge’s inaccurate reading of Section 121(1) BIA.
Référence : [2016] ABD 425

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