2016 QCCA 2117, 2016 QCCA 2117

De Grace c. Besse 2016 QCCA 2117 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026407-163 (500-14-047087-150) MINUTES OF THE HEARING DATE: December 22, 2016 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. PETITIONERS COUNSEL LYNN DE GRACE BEVERLEY BESSE Mtre CARMINE PONTILLO (Pontillo Pecho) RESPONDENTS COUNSEL GLENN BESSE JUDITH BESSE JAMES BESSE JANICE BESSE SAMUEL BESSE Mtre STEPHEN Ashkenazy ( Hamilton Cooper Ashkenazy ) DESCRIPTION: Application to suspend the provisional execution. Clerk: Elisabeth Lanctôt Courtroom: RC-18

HEARING 9 h 30 Continuation of the hearing of Monday, December 19 th 2016. The parties have been excused from appearing in Court this morning. BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing.

Elisabeth Lanctôt Clerk BY THE JUDGE JUDGMENT [ 1 ] On September 20, 2016, the Superior Court of the District of Montreal (the Honourable Donald Bisson) granted the Respondents’ Motion to replace the Appellants as liquidators of the Estate of their late mother, named two of the Respondents as Co- Liquidators and ordered them to take the accounting and inventory of September 16, 2016 as the basis for their upcoming final accounting and inventory of the estate.

In addition, the judge ordered that a portion of the extrajudicial costs incurred by Appellant Beverley Bess ($12,500) be deducted from her part of the estate.

He also ordered that the balance of Appellant Bess’s extrajudicial costs be assumed by the estate, together with the accounting fees already incurred up to the judgment and Respondents’ extrajudicial costs. [ 2 ] The Appellants have appealed this judgment and are now seeking the suspension of provisional execution, namely by seeking permission, as previous liquidators of the estate, to finalize the liquidation, distribute the remaining property and be discharged.

They are also asking that the estate be ordered to pay for the extrajudicial costs of their present Application. [ 3 ] While, in principle, an appeal operates to stay execution of the judgment under attack (section 355 C.c.p. ), paragraph 1 of

section 660 C.c.p. expressly provides for provisional execution “as of right” in a number of situations that are detailed in subparagraphs (1) to (12). [ 4 ] The Appellants have alleged at paragraph 1. of their Application, that “the judgment in appeal is provisionally executed as of right as per section 660 (3) and (7) of the Code of civil procedure”. [ 5 ] For ease of reference, the relevant extracts of

section 660 C.c.p. are reproduced below: 660. L'exécution provisoire a lieu de plein droit, lorsque le jugement : 660.

A judgment is provisionally executed as of right, if it […] […] 3° nomme, destitue ou remplace le tuteur, le curateur ou un autre administrateur du bien d'autrui, ou encore homologue ou révoque le mandat de protection; (3) appoints, removes or replaces a tutor, curator or other administrator of the property of others, or homologates or revokes a protection mandate; […] […] 7° ordonne une mesure pour assurer la liquidation d'une succession; (7) orders any measure for the liquidation of a succession; […] […] Le juge peut, par décision motivée, suspendre l'exécution provisoire; un juge de la Cour d'appel peut aussi le faire ou lever la suspension ordonnée par le juge de première instance.

The judge may order the stay of provisional execution by a decision giving reasons. A judge of the Court of Appeal may also do so , or may lift a stay ordered by the judge of first instance. [My underlining]

[ 6 ] The second paragraph of

section 660 C.c.p. allows a judge of the Court of Appeal to stay or lift the provisional execution imposed by the legislator where the following conditions are met: 1° the judgment of first instance shows major and apparent weaknesses; 2° provisional execution will cause serious prejudice to the petitioner, and; 3° the balance of inconvenience favours staying the execution. [ 7 ] These conditions must be applied strictly, given the legislator’s clearly expressed intention that provisional execution apply as a rule [1] . [ 8 ] In this case, the Appellants have failed to demonstrate that these conditions are met.

As a result, their Application must fail. [ 9 ] Firstly, the Appellants have not demonstrated major and apparent weaknesses in the judgment under appeal. While they argue that the judge committed errors in law by ordering ultra-petita that the Respondents’ extra-judicial fees be paid by the estate and by ordering the replacement of the liquidators at a late stage of the liquidation and appointing new liquidators who were not named in the late mother’s will, they have not demonstrated prima facie any flagrant weakness in the judgment.

The judge found that the Appellant Bess had lacked transparency and had been in a conflict of interest while the other liquidator failed to act diligently as a prudent administrator of the estate. [ 10 ] Secondly, Appellants have failed to allege any serious prejudice suffered as a result of the provisional execution.

They assert that by ordering the replacement of the liquidators, the judgment enabled the newly appointed liquidators to sue the former liquidators in Superior Court for $130,000, a claim that they have qualified as “abusive” and “vindictive”, serving only to complicate and delay the liquidation of the estate. [ 11 ] The impact of this separate claim on the liquidation of the estate does not require examination at this point.

The Court of Appeal is hardly the proper forum in effect to seek a stay of these new proceedings which are not the subject of the current appeal. [ 12 ] Moreover, any alleged delay in the completion of the liquidation of the estate could not outweigh the potential prejudice that may flow from allowing the former liquidators to finalize the estate, distribute the remaining property and be discharged, notwithstanding the judge’s findings of a conflict of interest, failure to account for cash withdrawals, lack of transparency of at least one of the liquidators and the failure to carry out liquidator duties with prudence, diligence and intelligence on the part of both Appellants. [ 13 ] Furthermore, I am satisfied that subparagraphs (3) and (7) of

section 660 C.c.p. , read together, are wide enough to encompass all the conclusions found in the judgment. THEREFORE, THE UNDERSIGNED: [ 14 ] DISMISSES the Application to suspend provisional execution with judicial costs. GeNEVIÈVE MARCOTTE , J.A.