2020 QCCA 1408, 2020 QCCA 1408

Fuoco c. Toronto-Dominion Bank 2020 QCCA 1408 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029172-202 ( 500-17-113395-209) MINUTES OF HEARING DATE: October 30, 2020 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPLICANT Leo Fuoco PRESENT AND UNREPRESENTED RESPONDENT COUNSEL TORONTO-DOMINION BANK Mtre Camille Duguay ( Fasken Martineau Dumoulin ) By videoconference DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on September 28, 2020 by the Honourable Benoît Emery of the Superior Court , District of Montréal (Art. 31 C.C.P. ).

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10:59 Commencement of the hearing. Identification of counsel. 11:00 Submissions by Mr Fuoco. 11:33 BY THE JUDGE: Judgment – see page 3. 11:35 Comments by Mtre Duguay. 11:37 Conclusion of the hearing.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The Petitioner seeks leave to appeal from the judgment rendered on September 28, 2020 by the Superior Court, District of Montreal (the honourable Benoît Emery) granting the Respondent’s motion to be relieved of its default to answer. [ 2 ] The Petitioner delivered his motion to institute proceedings to a branch of the Respondent on August 31, 2020, and a teller signed the back of the original to acknowledge receipt. The Respondent did not file its answer within the 15-day period provided by law and the Petitioner inscribed for a default judgment two days later.

The Respondent then filed its motion to be relieved of its default to answer. [ 3 ] The Respondent pleaded two grounds: that the motion to institute proceedings had not been properly served and that, if service was valid, it should be relieved of its default to answer. [ 4 ] The judge held that service was not valid and did not consider the second ground. [ 5 ] The Petitioner argues that the judge was wrong in concluding that the motion to institute proceedings had not been validly served. He insists that the acknowledgment of receipt constitutes valid service under

Article 110, paragr. 3 C.C.P. [ 6 ] Even assuming that he is right, I do not consider this to be a case where leave to appeal should be granted. [ 7 ] First, the Petitioner must demonstrate that the judgment determines part of the issues or causes him irremediable injury. It clearly does not determine any part of the issues. It does not cause him irremediable harm in that, even if service was found to be valid, the Respondent would undoubtedly have been relieved of its default.

The Petitioner must also demonstrate that granting leave would be consistent with the interests of justice and the principle of proportionality. That is clearly not the case. Given the inevitable outcome, it would be inconsistent with the interests of justice and the principle of proportionality to pursue this debate any further. [ 8 ] FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] DISMISSES the motion for leave to appeal, with costs. STEPHEN W. HAMILTON, J.A.