July 08, 2019
Hilton, Vauclair, Beaupré
Appeal from a judgment of the Superior Court (special clerk) granting in part a wage claim. Dismissed.
The appellant obtained a judgment ordering two corporations to pay her the unpaid wages of an ex-employee under the Act respecting labour standards (CQLR, c. N-1.1). Unable to enforce that judgment due to the insolvency of the corporations, she sued the company directors personally pursuant to ss. 154 et seq. of the Business Corporations Act (CQLR, c. S-31.1) and 119 of the Canada Business Corporations Act (R.S.C. 1985, c. C-44). The clerk granted her wage claim but refused to grant the payment of judicial costs incurred against the corporations or the interest due on the wages owed to the employee and accrued (anatocism) since the letter of demand sent to the companies.
Section 154 of the Business Corporations Act and section 119 of the Canada Business Corporations Act create an exorbitant common law liability scheme that requires a restrictive interpretation. Only debts arising from services rendered for the benefit of the corporation are likely to incur the personal liability of the director. The legal costs of obtaining a judgment against the corporations are not the promised but unpaid consideration for the work carried out by the employee on behalf of the corporations. Furthermore, this liability scheme would not allow a judgment rendered against an employer-company to be enforced against a director, namely because there is no identity of parties between them. Moreover, the provisions at issue do not state that the personal liability of directors extends to the costs of enforcing a judgment previously rendered against the corporation.
Anatocism is an exception. In principle, the interest granted to a creditor does not itself generate interest if it is not clearly provided for by law or the agreement. The attribution of anatocism falls under the trial court’s discretionary power, which was not exercised unreasonably. The appellant could not ask the clerk to condemn the respondents to pay interest as of a date earlier than the demand letter. Furthermore, a creditor cannot claim anatocism through an initial proceeding brought against a debtor other than the debtor condemned to pay the debt on which the interest has accrued. The appellant’s position comes up against certain principles underlying the default in civil law (arts. 1600 and 1617 of the Civil Code of Québec (S.Q. 1991, c. 64)). Finally, the claim does not rest on any suretyship contract binding the respondents for all the corporate debts owed the employee.
Legislation interpreted: Section 154 of the Business Corporations Act and section 119 of the Canada Business Corporations.
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