2019 QCCA 159, 2019 QCCA 159

Da Silva c. Caisse Desjardins Portugaise 2019 QCCA 159 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027895-184 (500-17-096812-162) MINUTES OF THE HEARING DATE: JANUARY 28, 2019 CORAM: THE HONOURABLE FRANÇOIS PELLETIER , J.A. MARK SCHRAGER , J.A. SIMON RUEL , J.A.

APPELLANTS JORGE DA SILVA JORGE DA SILVA , in his qualities as trustee of the Fiducie Patrimoine Da Silva PRESENT AND NOT REPRESENTED RESPONDENT COUNSEL CAISSE DESJARDINS PORTUGAISE Mtre MARIE-CLAUDE JARRY (Dunton Rainville) IMPLEADED PARTIES ANNE-MARIE OUELLET , in her qualities as trustee of the Fiducie Patrimoine Da Silva JORGE DA SILVA Jr ., in his qualities as trustee of the Fiducie Patrimoine Da Silva FIDUCIE PATRIMONIALE DA SILVA

On appeal from a judgment rendered on October 4, 2018 by the Honourable Justice Michel Yergeau of the Superior Court, District of Montreal DESCRIPTION : Application to dismiss the appeal (Article 365 C.C.P .) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 9:42 Commencement of the hearing. 9:42 Submissions by Mr. Da Silva. 9:50 Recess. 9:57 Resumption of the hearing. 9:57 Judgment – see page 3.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] On October 4, 2018, the Superior Court, District of Montreal (the Honourable Michel Yergeau), dismissed Appellants’ oral request for a postponement and then proceeded to hear Respondent’s paulian action and render judgment thereon declaring the transfer of a certain immovable unopposable to Respondent.

The hearing on the paulian action proceeded ex parte since Appellant left the courtroom once the postponement was refused; the other defendants were never present. [ 2 ] Appellant instituted an appeal after failing in his attempt to revoke the judgment (see the judgment of the Honourable Guylène Beaugé of October 29, 2018). [ 3 ] The notice of appeal focuses on the judge’s refusal to grant a postponement. Since such a judgment is in the nature of case management, leave to appeal would be required but has not been obtained nor requested by the Appellant. Moreover, the requirement of

Article 32 C.C.P. that the judgment be unreasonable “in light of the guiding principles of procedure” is not satisfied in this case. The judge had good reason to exercise his discretion to refuse the postponement given the previous postponements granted at the request of Appellant and particularly the fact that Appellant revoked his attorney’s mandate just prior to the hearing and then sought a postponement because he was not represented. Appellant insists that he revoked the mandate at his lawyer’s request. Nevertheless, the judge had his reasons and did not act unreasonably.

FOR ALL THESE REASONS, THE COURT: [ 4 ] GRANTS the motion to dismiss the appeal, with legal costs; and [ 5 ] DISMISSES the appeal of Appellants, with legal costs. FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. SIMON RUEL, J.A.