The Rebuttal of a Legal Presumption Concerning Deemed Facts Requires Work

By Sarah D. Pinsonnault A Paulian action instituted pursuant to article 1631 of the Civil Code of Quebec (C.C.Q.) allows acreditor to set aside a juridical act or transaction between his debtor and athird contracting party that carried a negative effect on the debtor’s patrimonyand compromised the creditor’s ability to satisfy his claim against the latter.Article 1632 C.C.Q. creates a legal presumption whereby transactions forconsideration are “deemed” to have been made with fraudulent intent if thecontracting party knew the debtor was insolvent or that he sought to become sovia this transaction. It bears noting that under article 2847 C.C.Q., all legalpresumptions concerning « deemed » facts are absolute and may not berebutted by proof to the contrary. However, in Banque Nationale du Canada c. B. (C.), [2000] R.J.Q. 658, the Court of Appeal stated that there was acertain level of ambiguity surrounding article 1632 C.C.Q. and that, inparticular, the contracting party should… Lire la suite