2020 QCCA 1098, 2020 QCCA 1098

Syndic de Boudreau 2020 QCCA 1098 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029013-208 ( 500-11-056738-194 ) MINUTES OF HEARING DATE: August 31, 2020 THE HONOURABLE ROBERT M. MAINVILLE, J.A. IN THE MATTER OF THE BANKRUPTCY OF RÉJEAN BOUDREAU APPLICANT COUNSEL H. E., in her quality as liquidator of the succession of F. K. Mtre Reevin Pearl ( Pearl & Associates ) By videoconference RESPONDENTS COUNSEL André Gabbay et associés inc. PRESENT AND UNREPRESENTED By videoconference RÉJEAN BOUDREAU ABSENT AND UNREPRESENTED IMPLEADED PARTIES COUNSEL superintendent of bankupcy U. G.

ABSENT AND UNREPRESENTED DESCRIPTION: Application for extension of delay for leave to appeal (Art. 193 a), b), c), d),

e) Brankrupcy & insolvency Act and Art. 31(1)

(2) C.C.P. ) . Clerk at the hearing : Elisabeth Lepage Courtroom: RC-18 HEARING

10:03 Commencement of the hearing. Identification of the parties. Discussion between the judge and the parties. 10:05 Submissions by Mtre Pearl. 10:14 Discussion between the judge and Mtre Pearl. 10:34 Comments by the judge. 10:39 Discussion between the judge and M. Gabbay regarding his right to make submissions. M. Gabbay advises that he does not intend to make submissions. 10 h 40 BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing.

Elisabeth Lepage, Clerk at the hearing JUDGMENT [ 1 ] The Applicant is seeking to appeal the decision of the Chief Justice of the Superior Court of February 28, 2020, refusing her request as a quarrelsome litigant to file a motion for an extension of time to appeal the decision of the Bankruptcy Registrar (Me Chantal Flamand) of December 16, 2019, rejecting her notices of objection to the discharge from bankruptcy of the respondent Réjean Boudreau. * * * [ 2 ] The Applicant, H. E., and her brother U. G., have both been declared quarrelsome litigants by the Superior Court.

They have been involved in protracted litigation with respect to the administration of the estates of their deceased father and his deceased spouse carried out by Le Groupe Boudreau Richard inc., a firm through which the respondent Réjean Boudreau acted.

According to the judgments in the record before me, the value of these estates has been substantially affected by the exorbitant costs of the litigation pursued by the Applicant and her brother. [ 3 ] On June 10, 2011, the Honourable Richard Nadeau of the Superior Court dismissed the Applicant’s claims against Le Groupe Boudreau Richard inc., and Richard Boudreau personally and declared the Applicant a quarrelsome litigant ( 2011 QCCS 2887 , Superior Court file 500-17-047423-085).

However, on April 25, 2013, the Court granted the Applicant’s appeal with respect to the conclusions of that judgment dismissing her claims in Superior Court file 500-17-047423-085, but not with respect to the declaration as a quarrelsome litigant ( 2013 QCCA 753 and 2013 QCCA 754 ). The application for leave to appeal judgment 2013 QCCA 754 was dismissed by the Supreme Court of Canada on January 30, 2014 (file n o 35543). [ 4 ] As the Honourable Justice Gouin noted in a judgment dated September 2017, the Applicant was not very active in Superior Court file 500-17-047423-085 from June, 2014, onwards.

As a result, the Applicant failed to inscribe the case for proof and hearing within the prescribed time. Though the Applicant attempted to lift the default, her application for this purpose was dismissed by Justice Gouin on September 8, 2017. [ 5 ] In any event, Réjean Boudreau filed for bankruptcy on February 6, 2017. As a result, on March 13, 2017, the bankruptcy trustee issued a notice suspending court proceedings against the bankrupt. * * * [ 6 ] The Applicant opposes the discharge from bankruptcy of Réjean Boudreau.

The Registrar dismissed this opposition on the ground that the Applicant is not a creditor in the bankruptcy and, as a result, cannot oppose his discharge from bankruprcy under

section 168.2 of the Bankruptcy Act . The Chief Justice of the Superior Court refused to allow leave to appeal the Registrar’s decision as the appeal has no reasonable chance of success.

The Applicant now seeks leave to appeal to this Court. * * * [ 7 ] Even if the Applicant were correct in her assertion that the judgment of September 8, 2017, of Justice Gouin must be ignored or discarded since it was issued after the trustee’s notice suspending court proceedings (a matter which I need not comment upon for the purposes of this application), she would still have no claims against Réjean Boudreau in Superior Court file 500-17-047423-085. [ 8 ] Indeed, the failure of the Applicant to inscribe the case for proof and hearing within the prescribed time had the legal effect of discontinuing her action.

The terms of the first paragraph of

article 274.4 of the old Code of civil procedure and that of the first paragraph of

article 177 of the new Code of civil procedure which came into force on January 1, 2016 (both of which are reproduced below) are clear in this matter:

274.3. The inscription form must be filed at the office of the court within a peremptory time limit of 180 days or, in family matters, one year from service of the motion to institute proceedings, unless the court extends the time limit in accordance with

article 110.1, in which case the inscription form must be filed before the expiry of the extended time limit, and make a reference to the extension order. A plaintiff who fails to inscribe within the time limit is deemed to have discontinued the action or application. * * * 274.3.

L’inscription doit être produite au greffe dans le délai de rigueur de 180 jours, ou d’un an en matière familiale, à compter de la signification de la requête introductive, à moins que le tribunal n’ait, conformément à l’article 110.1, prolongé ce délai, auquel cas l’inscription doit être produite avant l’expiration du délai ainsi fixé et faire mention de l’ordonnance de prolongation. Le demandeur qui fait défaut d’inscrire dans le délai fixé est réputé s’être désisté de sa demande. * * * 177.

A plaintiff who fails to file a request for setting down within the strict time limit is presumed to have discontinued the application, unless another party files such a request within 30 days after the expiry of the time limit. 177. Faute de demander l’inscription dans le délai de rigueur, le demandeur est présumé s’être désisté de sa demande à moins qu’une autre

partie n’ait demandé l’inscription dans les 30 jours de l’expiration du délai. (Emphasis added) [Soulignement ajouté] [ 9 ] As a result, the Applicant is not a creditor in the bankruptcy stemming from her claims in Superior Court file 500-17-047423- 085 and cannot therefore oppose the discharge of the bankrupt on that basis. [ 10 ] The Applicant also refers to the transcript of the examination of the bankrupt held June 20 and 22, 2017 in which he states that he omitted to add $1.00 with respect to the Applicant in his statement of affairs. Under the Bankruptcy Act a creditor must have a provable claim.

Yet, there is no evidence in the file supporting any other claim by the Applicant other than those claims set out in Superior Court file 500-17-047423-085, which proceedings are deemed to have been discontinued. The file before me does not establish that the Applicant pursued any other claim in the bankruptcy proceedings or that the trustee acknowledged any other claim. [ 11 ] Since, the Applicant has failed to establish a provable claim in bankruptcy against the bankrupt, the appeal is unlikely to succeed. As a result, leave to appeal shall be denied.

FOR THESE REASONS, THE UNDERSIGNED: [ 12 ] DISMISSES the Application for Extension of Delay for Leave to Appeal from a Decision Refusing Authorization to Appeal from a Decision of the Registrar in Bankruptcy ; [ 13 ] WITHOUT LEGAL COST , in light of the circumstances. ROBERT M. MAINVILLE, J.A.