2015 QCCA 641, 2015 QCCA 641

Schwartz c. Unique (L'), assurances générales inc. 2015 QCCA 641 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024220-147 (700-17-009411-124) MINUTES OF THE HEARING DATE: April 17, 2015 CORAM: THE HONOURABLE MARIE-FRANCE BICH , J.A. NICHOLAS KASIRER , J.A. MARTIN VAUCLAIR , J.A. APPELLANT COUNSEL HERMAN SCHWARTZ Mtre JOHANNIE MONGEAU - for Mtre DENIS BOUCHARD ( Deveau Gagné Lefebvre Tremblay et Associés , sencrl ) RESPONDENT COUNSELS L’UNIQUE ASSURANCES GÉNÉRALES INC. Mtre CLAUDIA VAILLANCOURT Mtre MICHEL ST-PIERRE ( Beauvais, Truchon s.e.n.c.r.l. ) IMPLEADED PARTIES COUNSEL

9250-1998 QUÉBEC INC . Mtre MICHAEL HOLLANDER ( Oiknine & Associé

s) LE GRAND SÉMINAIRE RABBINIQUE TASH DE MONTRÉAL L’OFFICIER DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION FONCIÈRE DE TERREBONNE On appeal from a judgment rendered on January 13, 2014, by the Honourable Mr. Justice Stéphane Sansfaçon, of the Superior Court, District of Terrebonne NATURE OF THE APPEAL : Municipal law – Sale for non-payment of taxes – Right of redemption – Hypothecary creditor Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 9:30 Continuation of the hearing on April 15, 2015. Judgment - see page 4.

Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] Herman Schwartz has appealed a judgment of the Superior Court, District of Terrebonne (the Honourable Stéphane Sansfaçon), rendered January 13, 2014, which granted L’Unique Assurances Générales inc.’s motion seeking a declaration that it be authorized to redeem an immovable sold for unpaid taxes by the City of Boisbriand. [ 2 ] The trial judge held that the respondent, as a person other than the owner of the immovable, could avail itself of the right to redeem the property pursuant to

section 533 of the City and Towns Act . [1] He rejected the appellant’s argument that the redemption was not truly “for the benefit / pour le profit” of the owner at the time of the adjudication of the property within the meaning of that expression in s. 533. *** [ 3 ] The appellant advances three grounds of appeal. [ 4 ] It should immediately be said that the owners of the immovable – a Mr. David Hochhauser and Ms. Fiege Hochhauser – are not parties to the action and much of the appellant’s argument appears to take the form of pleadings made in their stead, i.e . prohibited plaidoyer pour autrui .

However irregular this might be, this situation need not be commented on further: even if one were to consider the pleadings by the appellant as procedurally valid, none of the three substantive arguments raised in support of the appeal has merit. [ 5 ] First , the appellant reiterates the argument dismissed by the judge at trial that the respondent could not exercise the right of redemption in the name and for the benefit of the owner pursuant to s. 533 CTA because the transaction was not “profitable”, in a financial sense, for the owners.

The appellant is of the view that this profitability must be demonstrated by a person, like the respondent, who is not an owner as a pre-condition to his or her exercise of the statutory right of redemption. [ 6 ] The appellant is mistaken. [ 7 ] The judge was correct in deciding that, for the purposes of s. 533 CTA , the return of the right of ownership of the immovable to the owners’ patrimony here was sufficient in the circumstances to constitute redemption “for the benefit / pour le profit” of Mr. and Ms. Hochhauser. [2] Indeed, as Mayrand, J.A. observed in Laval (Ville de) v.

Marquis , [3] both the person redeeming the immovable (the retrayant , or redeemer) and the owner can profit from the operation. [ 8 ] Where the redeemer is not the owner, the expression “only in the name and for the benefit of the person who was the owner at the time of the adjudication” in s. 533 does not preclude the redeemer from drawing an advantage from the exercise of the statutory right of redemption. [ 9 ] On the facts here, the return of the immovable to the patrimony of the original owners and its subsequent sale to 9250-1998 Québec inc. will ultimately serve to reduce the owners’ debt by $79,500 to the respondent.

While that amount is less than the capital amount of $85,000 that the owners would have received as a result of the sale for taxes, it cannot be said that the redemption took place in a manner that was not in the owners’ name and for their benefit. This is not a circumstance where the return of the property in itself results in harm to the owner.

The return of the right of ownership in the immovable to the patrimony of the owners meets the requirement of “only in the name and for the benefit / au nom et pour le profit seulement” set forth in s. 533 on the facts of this case. [4] [ 10 ] Secondly , the appellant argues that the respondent has no interest to exercise the right of redemption under s. 533 CTA on the basis of the judgments authorizing it to sell the property privately. [ 11 ] The argument is without merit. The rights of the respondent arise by statute, specifically s. 533 CTA , and not by judgment.

The statutory conditions allowing the respondent to exercise a right of redemption were satisfied here. [ 12 ] Thirdly , the appellant invokes

article 1397 C.C.Q. to suggest that the presence of a contract made in violation of a promise to contract renders the exercise of the right of redemption by the respondents invalid. [ 13 ] The argument is also without merit.

[ 14 ] The respondent’s rights arise not under contract but by statute, based on the exercise of a right of redemption in s. 533 CTA . These statutory rights are in no way impugned by

article 1397 C.C.Q. which provision, on its face, plainly has no application here. The sale for unpaid taxes, which served to prevent the realization of the promise here, is not a contract made in violation of a promise to contract within the meaning of

article 1397. FOR THE AFOREMENTIONED REASONS , the Court: [ 15 ] DISMISSES the appeal, with costs. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. 533. Toute personne autorisée ou non peut, à moins qu'un acte de vente n'ait été consenti en vertu du deuxième alinéa de l'article 525, retraire cet immeuble de la même manière, mais au nom et pour le profit seulement de celui qui en était le propriétaire au temps de l'adjudication. 533. Any person, whether authorized or not, may, unless a deed of sale has been effected under the second paragraph of

section 525, redeem such immovable in the same manner, but only in the name and for the benefit of the person who was the owner thereof at the time of the adjudication.