2019 QCCA 848, 2019 QCCA 848

Giancristofaro-Malobabic c. O'Connor 2019 QCCA 848 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028253-193 (500-11-029529-068) DATE: May 13, 2019 BEFORE THE HONOURABLE ALLAN R. HILTON, J.A. BRANA GIANCRISTOFARO-MALOBABIC APPLICANT – Defendant v. DANIEL F.

O’CONNOR RESPONDENT – Plaintiff – Cross-Defendant JUDGMENT [ 1 ] The applicant Brana Giancristofaro-Malobabic seeks leave to appeal a judgment of the Superior Court rendered on March 25, 2019 by the Honourable Madam Justice Silvana Conte [1] that dismissed her application in opposition to the seizure in execution of a judgment of the Superior Court rendered on September 21, 2018.

That judgment condemned her and two other defendants to pay the respondent, her former counsel, a total of $350,000 in damages. [2] The judgment for which leave is being sought also ordered provisional execution notwithstanding appeal. [ 2 ] The foregoing judgment condemning the applicant and other defendants to the payment of damages was rendered by the Honourable Mr. Justice Pinsonnault on September 21, 2018.

An appeal from that judgment was dismissed by this Court. [3] [ 3 ] The applicant invoked four grounds in opposition to the seizure, all of which engage either questions of fact or mixed questions of fact and law, for which the standard of appellate review is extremely demanding, to wit, the demonstration of a manifest and determinative error. [ 4 ] The first issue the trial judge considered is that of the applicant’s interest.

The trial judge held that she lacked standing since the property was seized at the place of business of a company (9114-8965 Quebec Inc.), and the minutes of seizure disclosed that the company, not the applicant, was the owner of the property thus seized. The trial judge further noted that the applicant “does not allege nor has she proven that she owns or has any interest in the property seized”. The trial judge therefore considered that she lacked sufficient interest to oppose the seizure since a legal person must be represented by counsel.

In this respect, the fact that she may be the sole shareholder of the numbered company does not give her that legal status to act in its name, even though such a requirement involves the inconvenience for her of engaging counsel to act on its behalf. [ 5 ] All of her other arguments were properly addressed by the trial judge. The first was that of alleged exemption of certain assets from seizure, the substance of which was rejected by the trial judge for inapplicability or absence of supporting evidence.

Next, the applicant complained of premature execution of the judgment since the delay to appeal had not yet expired and she had not yet received the notice of judgment. This argument was rejected inasmuch as the trial judgment ordered provisional execution notwithstanding appeal. Finally, she argued that patents are exempt from seizure, which may be true elsewhere in Canada, but is not true in Quebec, as the Superior Court held in Brunet v. Chrysler Canada Ltd . [4] [ 6 ] The applicant has failed to establish any arguable grounds of appeal.

I would therefore dismiss her motion for leave to appeal, without legal costs given the circumstances. ALLAN R. HILTON, J.A. Mrs. Brana Giancristofaro-Malobabic IN PERSON Mtre Daniel F. O’Connor DANIEL F. O’CONNOR, ATTORNEYS AT LAW For respondent Date of hearing: May 7, 2019