TITLE I PROVISIONAL REMEDIES

CHAPTER I

SEIZURE BEFORE JUDGMENT

733. The plaintiff may, with the authorization of a judge, seize before judgment the property of the defendant, when there is reason to fear that without this remedy the recovery of his debt may be put in jeopardy.

1965 (1st sess.), c. 80, a. 733.

734. The plaintiff may also seize before judgment:

(1) the movable property which he has a right to revendicate;

(2) (paragraph repealed);

(3) the motor vehicle which has caused him damage;

(4) the movable property upon the price of which he is entitled to be collocated by preference and which is being used in such a way as to jeopardize the realization of his prior claim;

(5) the movable property which a provision of law permits him to seize in order to assure the exercise of his rights upon it.

1965 (1st sess.), c. 80, a. 734; 1992, c. 57, s. 359.

734.0.1. In a suit in nullity of marriage, for separation as to property, for payment of a compensatory allowance, for separation from bed and board or divorce or for the dissolution or annulment of a civil union, each spouse may also seize before judgment the movables belonging to him, whether they are in the hands of his spouse or of a third person; he may, in addition, with leave of a judge, seize the property of his spouse that he would be entitled to share in if the matrimonial or civil union regime were dissolved.

The seized property remains in the custody of the debtor, unless a judge decides otherwise.

1982, c. 17, s. 27; 1989, c. 55, s. 34; 2002, c. 6, s. 104.

734.1. Where the case is in appeal, the plaintiff may make a seizure before judgment with the authorization of a trial judge.

1975, c. 83, s. 51.

735. A seizure before judgment is effected in virtue of a writ, issued by the clerk upon a written requisition supported by an affidavit affirming the existence of the debt and the facts which give rise to the seizure and, if based on information, indicating the sources thereof.

In the cases provided for in articles 733, 734.0.1 and 734.1, the leave of the judge must appear upon the requisition itself.

1965 (1st sess.), c. 80, a. 735; 1982, c. 17, s. 28; 1992, c. 57, s. 420.

736. The writ orders the officer charged with it to seize all the movable property of the defendant or only the movable or immovable property specially described therein. When the seizure is in the hands of a third party, the writ must conform to the provisions of articles 625 and 641.

The writ, moreover, orders the defendant, upon whom it must be served with a copy of the affidavit, to appear to answer the demand made against him and to hear the seizure declared valid.

1965 (1st sess.), c. 80, a. 736; 1972, c. 70, s. 24.

737. Seizure before judgment has, as its sole purpose, to place the property in the hands of justice pending suit; it is carried out in the same way and is governed by the same rules as seizure after judgment, so far as they are applicable.

Articles 552 and 553 apply to a seizure before judgment, except in the cases provided for in article 734.

The officer entrusts the property seized to a guardian designated by him, unless the seizing creditor authorizes him to leave them with the debtor.

1965 (1st sess.), c. 80, a. 737; 1975, c. 83, s. 52; 1977, c. 73, s. 31; 1983, c. 28, s. 26; 1992, c. 57, s. 360.

738. The defendant may, within five days of service of the writ, demand that the seizure be quashed because of the insufficiency or the falsity of the allegations of the affidavit on the strength of which the writ was issued.

The demand is presented to a judge who quashes the seizure if the allegations contained in the affidavit are insufficient. In the opposite case, the judge refers the motion to the court and, if expedient, revises the extent of the seizure and makes any other useful order for safeguarding the rights of the parties.

The burden is on the seizing party to prove the allegations of his affidavit.

1965 (1st sess.), c.

739. The defendant may prevent the removal of the seized property or be released from the seizure by giving the seizing officer sufficient guarantee chosen by the defendant.

The amount of the guarantee is determined by the amount sued for or the market value of the property seized as certified by the seizing officer, according to the circumstances, unless the judge or clerk otherwise decides.

Only the deposit of sum of money, of a guarantee issued by a financial institution carrying on business in Quebec, of bonds within the meaning of the provisions of the Civil Code relating to presumed sound investments or of an insurance policy securing the performance of the dependant\'s obligations constitutes sufficient guarantee within the meaning of this article.

The defendant may also, at any time after the removal of the property seized, have such property returned to him on applying to the judge and on giving sufficient guarantee within the meaning of this article or any other guarantee that the judge may authorize.

1965 (1st sess.), c. 80, a. 739; 1975, c. 83, s. 53; 1977, c. 73, s. 32; 1983, c. 28, s. 27; 1992, c. 57, s. 361, s. 420.

740. When the motion to institute proceedings has not been served on the defendant with the writ of seizure, the plaintiff must file it at the office of the court within five days, with a copy for the defendant.

The suit is contested in the ordinary manner, but it must be heard and decided by preference.

Seizure before judgment may be taken during the suit; it is then subject to the rules of this chapter, so far as they apply.

1965 (1st sess.), c. 80, a. 740; 2002, c. 7, s. 101.

741. (Repealed).

1965 (1st sess.), c. 80, a. 741; 1973, c. 74, s. 16.

CHAPTER II

JUDICIAL SEQUESTRATION

742. The court may of its own motion, or on application, order the sequestration of property when it considers that the protection of the rights of the parties so requires.

Sequestration may be ordered by a trial judge when the case is in appeal.

1965 (1st sess.), c. 80, a. 742; 1975, c. 83, s. 54; 1992, c. 57, s. 362.

743. The judgment which orders the sequestration fixes the day on which the parties must appear before the court or judge in chambers to proceed to the choice of a sequestrator; if the parties cannot then agree, or if one of them makes default, the judge himself chooses the sequestrator.

1965 (1st sess.), c. 80, a. 743.

744. The sequestrator must be sworn, before the clerk, to administer well and faithfully the property of which he is appointed depositary; he is put in possession by a bailiff who prepares minutes which must contain the description of the property sequestrated and be signed by the bailiff and the sequestrator.

1965 (1st sess.), c. 80, a. 744; 1992, c. 57, s. 420.

745. The sequestrator is subject to all the obligations resulting from conventional sequestration unless the court decides otherwise.

1965 (1st sess.), c. 80, a. 745; 1992, c. 57, s. 363.

746. (Repealed).

1965 (1st sess.), c. 80, a. 746; 1992, c. 57, s. 364.

747. (Repealed).

1965 (1st sess.), c. 80, a. 747; 1992, c. 57, s. 364.

748. (Repealed).

1965 (1st sess.), c. 80, a. 748; 1992, c. 57, s. 364.

749. (Repealed).

1965 (1st sess.), c. 80, a. 749; 1992, c. 57, s. 364.

750. The costs and the remuneration of the sequestrator are taxed by the clerk; they are due jointly and severally by the parties to the contestation, unless the court otherwise orders.

1965 (1st sess.), c. 80, a. 750; 1992, c. 57, s. 420.

CHAPTER III

INJUNCTIONS

751. An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his senior officers, agents or employees, not to do or to cease doing, or, in cases which admit of it, to perform a particular act or operation, under pain of all legal penalties.

1965 (1st sess.), c. 80, a. 751; 1992, c. 57, s. 365.

752. In addition to an injunction, which he may demand by a motion to institute proceedings, with or without other conclusions, a party may, at the commencement of or during a suit, obtain an interlocutory injunction.

An interlocutory injunction may be granted when the applicant appears to be entitled to it and it is considered to be necessary in order to avoid serious or irreparable injury to him, or a factual or legal situation of such a nature as to render the final judgment ineffectual.

1965 (1st sess.), c. 80, a. 752; 2002, c. 7, s. 102.

752.1. Ex officio or on the motion of a party, the court may, in every case where it considers it appropriate, order the parties to join issues in the principal action within an appointed time, and fix the date of the hearing.

1983, c. 28, s. 28.

753. The application for an interlocutory injunction is made to the court, by written motion, supported by an affidavit affirming the truth of the facts alleged and served upon the opposite party, with a notice of the day when it will be presented. In case of urgency, a judge may nevertheless grant it provisionally even before it has been served. Notwithstanding the foregoing, in no case, except with the consent of the parties, may a provisional injunction exceed 10 days.

1965 (1st sess.), c. 80, a. 753; 1983, c. 28, s. 29; 1985, c. 29, s. 12; 1986, c. 55, s. 7.

753.1. No application for an interlocutory injunction may be presented at the beginning of proceedings unless a motion to institute proceedings has been filed in the office of the court.

If the application is granted, the motion to institute proceedings must be attached to the order and be served with it unless the judge allows the motion not to be served. In the latter case, the applicant must file the motion at the office of the court within five days of the order, with a copy for the defendant.

However, the application may be presented without a motion to institute proceedings if the latter could not be filed in time. In such a case, if the application is granted, the order may be served without the motion to institute proceedings. However, the motion must be served within the time determined by the judge.

1983, c.

754. The application for an interlocutory injunction is contested orally unless the court allows it to be contested in writing.

1965 (1st sess.), c. 80, a. 754; 1983, c. 28, s. 30; 2002, c. 7, s. 104.

754.1. The parties make their proof by means of affidavits sufficiently detailed to establish all the facts necessary to support their pretensions. They must cause the affidavits and all the documents they intend to refer to at the proof and hearing to be served on the opposite party as soon as possible before presentation of the application for an interlocutory injunction. However, the applicant must cause his affidavits to be served at the same time as the application.

1983, c. 28, s. 30; 1994, c. 28, s. 28; 2002, c. 7, s. 105.

754.2. If on presentation of the application for an interlocutory injunction the record is complete, the court hears the parties.

In addition to proof by affidavit, any party may present oral proof, if he so wishes.

If on presentation of the application for an interlocutory injunction the record is incomplete, the court fixes the date for the proof and hearing and issues any order necessary to safeguard the rights of the parties for the time and on the conditions it determines.

1983, c. 28, s. 30; 2002, c. 7, s. 106.

754.3. The court may, at the hearing, prescribe any measure designed to accelerate the progress of the hearing and limit the proof, if no prejudice results to a party.

1983, c. 28, s. 30.

755. Unless, for good reason, the court or the judge granting an interlocutory injunction decides otherwise, the applicant must be ordered to give security, in a prescribed amount, to pay the costs and damages which may result therefrom. The certificate of the clerk that the security has been given must be attached to the order before it is served.

A judge may at any time increase or reduce the amount of such security.

1965 (1st sess.), c. 80, a. 755; 1992, c. 57, s. 420.

756. The order of interlocutory injunction must in all cases be served upon the opposite party, in the same manner as a motion to institute proceedings, or in the manner prescribed by the court or the judge.

1965 (1st sess.), c. 80, a. 756; 1996, c. 5, s. 46; 2002, c. 7, s. 160.

757. The court or a judge may suspend or renew an interlocutory injunction, for such time and on such conditions as is determined.

1965 (1st sess.), c. 80, a. 757.

758. An order of injunction can in no case be granted to restrain legal proceedings or the exercise of functions for a legal person established in the public interest or for a private interest, except in the case provided for in article 329 of the Civil Code.

1965 (1st sess.), c. 80, a. 758; 1992, c. 57, s. 366.

759. Any final judgment in which an injunction is pronounced must be served upon the opposite party.

1965 (1st sess.), c. 80, a. 759.

760. An injunction pronounced in a final judgment remains in force notwithstanding appeal; an interlocutory injunction remains in force notwithstanding a final judgment dissolving it, provided that the plaintiff has instituted an appeal within 10 days.

However, a judge of the Court of Appeal may provisionally suspend an injunction.

1965 (1st sess.), c. 80, a. 760; 1975, c. 83, s. 55; 1979, c. 37, s. 43.

761. Any person named or described in an order of injunction, who infringes or refuses to obey it, and any person not described therein who knowingly contravenes it, is guilty of contempt of court and may be condemned to a fine not exceeding $50,000, with or without imprisonment for a period up to one year, and without prejudice to the right to recover damages. Such penalties may be repeatedly inflicted until the contravening party obeys the injunction.

The court may also order the destruction or removal of anything done in contravention of the injunction, if there is reason to do so.

1965 (1st sess.), c. 80, a. 761.