2013 QCCA 2237, 2013 QCCA 2237

Fleischer (Estate of) 2013 QCCA 2237 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023885-130 (500-14-040243-123, 500-14-040348-120) MINUTES OF THE HEARING DATE: December 20, 2013 THE HONOURABLE MR. JUSTICE NICHOLAS KASIRER IN THE ESTATE OF THE LATE ISIDORE FLEISCHER PETITIONER GEORGETTE FLEISCHER In person RESPONDENT ATTORNEY AMERICAN MATHEMATICAL SOCIETY Mtre Sébastien Matte DUFOUR, MOTTET, Avocats, s.e.n.c. IMPLEADED PARTIES ATTORNEY SYDNEY BULMAN-FLEMING (LIQUIDATOR) US BANK

MOTION TO SUSPEND THE EXECUTION OF A JUDGMENT OF THE COURT OF APPEAL (Article 522.1 C.C.P.) Clerk: Robert Osadchuck Courtroom: RC.18 HEARING Hearing continued of December 19, 2013. Georgette Fleischer and Mtre Sébastien Matte have been informed that it was not necessary for them to attend today’s hearing. Copy of the judgment will be sent to them by email. 9 h 30 Judgment – see next page.

Robert Osadchuck Clerk JUDGMENT [ 1 ] Georgette Fleischer seeks to suspend execution of a judgment of this Court, rendered on November 29, 2013, pending the outcome of her application for leave to appeal to the Supreme Court of Canada. In the judgment from which Ms Fleischer seeks leave, this Court summarily dismissed her appeal of a judgment of the Superior Court, District of Montreal (the Honourable David Collier), which had granted a petition brought by the American Mathematical Society to reconstitute the will of the late Isidore Fleischer. Isidore Fleischer was Ms Fleischer’s father. [ 2 ] Ms.

Fleischer lives in New York City. While she was represented by counsel before the Superior Court, she appeared alone before this Court on the motion to dismiss in November and again before me today. She requested that her motion to suspend presented pursuant to

article 522.1 CCP be heard by teleconference to which the respondent and the impleaded parties have agreed. *** [ 3 ] Isidore Fleischer died in Montreal in 2011. An original of his will was not found. Sydney Bulman-Fleming came forward with a photocopy of a document that purported to be Mr. Fleischer’s handwritten will, executed before two witnesses in 1982, which named the Society as his universal legatee and expressly disinherited family members. [ 4 ] The Society took action before the Superior Court to have the will reconstituted under

article 774 CCQ, i.e . to have the photocopy recognized as best proof of Mr. Fleischer’s last will for which no original could be found. The Society asked for an order that Mr. Bulman-Fleming, the liquidator named in the will, give effect to the testator’s last wishes. [ 5 ] Ms. Fleisher opposed the motion. She argued that the requirements for reconstitution of the will were not met. Alternatively,

she argued that even if the will could be reconstituted based on the photocopy, her father had subsequently acted in a manner that indicated his intention to revoke it. At the end of the day, she argued, he died without a valid will and his property should pass to his intestate heirs. She therefore asked the Superior Court for letters of verification pursuant to

article 615 CCQ to declare the intestacy in respect of which she claimed to be the only known heir. [ 6 ] In a carefully-written opinion, the judge of the Superior Court decided that proof of the contents of the will and of its regularity was “conclusive and unequivocal”, as required by

article 774 CCQ. As a result, he granted the Society’s application to reconstitute the 1982 will based on the available photocopy. Secondly, the judge reviewed Ms. Fleischer’s arguments that the transfer of assets by her father to a personal bank account over which the Society had no claim as joint tenant amounted to a revocation of the will. He decided that an intention to revoke the will could not be inferred from the transfer of these funds. The evidence showed that Mr. Fleischer understood that assets not held in joint tenancy would nevertheless pass to the Society by the effect of his will.

As a result of these findings, the judge found the will to be valid and that it was unnecessary for him to consider Ms. Fleischer’s status as sole intestate heir. In his conclusions, he awarded costs to the Society. [ 7 ] Ms. Fleischer appealed. [ 8 ] The Court of Appeal granted the Society’s motion to dismiss the appeal summarily. It is plain from the short judgment rendered by the Court that it was of the view that the appeal presented no reasonable chance of success within the meaning of

article 501, paragraph 1, sub-paragraph 4 CCP. The Court wrote that the judge made no error in applying

article 774 CCQ and that the evidence was overwhelming that the photocopy reflected the lost original will. Furthermore, the Court found that Ms. Fleischer had failed to demonstrate that the will had been revoked. The Court concluded that “a panel of this Court would not be in a position to intervene and reverse”. *** [ 9 ]

Article 522.1 CCP provides: 522.1. The Court of Appeal or one of its judges may, subject to the conditions the Court or the judge deems appropriate, order suspension of the execution of a judgment of the Court, on a motion of a party who establishes his intention to apply for leave to appeal to the Supreme Court of Canada. 522.1. La Cour d'appel ou l'un de ses juges peut ordonner, aux conditions qu'il estime appropriées, de suspendre l'exécution d'un jugement de cette cour, sur demande d'une

partie qui démontre son intention de présenter une demande d'autorisation d'appel à la Cour suprême du Canada. [ 10 ] The criteria that must be established by Ms. Fleischer in order to obtain an order suspending execution of the judgment of this Court pending appeal are well known: (1) the existence of a serious question to be decided on appeal; (2) that she will suffer serious prejudice if her application for suspension is not granted; and (3) that the balance of inconvenience between the parties favours the granting of suspension. See, e.g. , Restaurant La Porte de Lévis inc. v.

Corporation Cadillac Fairview ltée , [2002] J.Q. no 6144 (C.A.) ; Pamphile v. Montréal (Ville de), 2008 QCCA 1821 . [ 11 ] In my respectful view, based on the limited materials submitted in support of the motion, Ms. Fleischer has not established the existence of a serious question to be decided by the Supreme Court on appeal. [ 12 ] In her motion, Ms.

Fleischer raised several arguments in support of what she described as “a serious legal and human question that I hope to be debated before the Supreme Court of Canada.” She says that the law supports her “natural right to the estate” unless the deceased’s intention that can otherwise be proved by a party that would disrupt the natural succession. [ 13 ] In service of this position, Ms. Fleischer has raised arguments that she presented before the trial judge as well other arguments that appear to be new or reformulated ones.

She says in particular that the trial judge confused the evidence as to the original will and the original copy of the will; that he misapplied the rules on burden of proof; that he misread testimony she gave about his father’s intention to disinherit the family but not her; that the Society’s action was prescribed; that evidence as to the transfer of his assets indicating revocation was not properly considered. [ 14 ] Mindful of the limited picture of an appeal that can be sketched on a motion under

article 522.1 CCP, I am of the view that these arguments, while not frivolous, are not serious ones within the meaning of the cases decided pursuant to suspension. When read against the backdrop of the findings made by the trial judge and his

interpretation of the applicable law, none of the arguments in the motion raises a serious question justifying suspension. [ 15 ] Nor am I convinced that she will suffer serious inconvenience should suspension not be granted. The Society appears to have substantial assets, a large membership and a long history – its solvency is not at issue. If the Supreme Court grants leave and ultimately reverses the Court of Appeal, it would seem fair to suppose that the Society could repay the amount due to the estate. Ms.

Fleischer’s argument that the Society’s dealings with her suggest that it is in bad faith do not convince me that suspension should be granted. [ 16 ] In so far as it is necessary to speak to the balance of inconvenience, I am of the view that Ms. Fleischer has failed to show that it weighs in her favour. [ 17 ] In sum, notwithstanding Ms. Fleischer’s fine pleading, her motion to suspend execution of the judgment of this Court should be dismissed. [ 18 ] Finally, I note that the trial judge awarded costs but that the Court of Appeal chose not to do so.

In light of the particular circumstances of the dispute and the fact that the arguments presented by Ms. Fleischer are neither frivolous nor vexatious, I exercise my discretion not to order costs.

FOR THE AFOREMENTIONED REASONS , the undersigned: [ 19 ] DISMISSES the motion, without costs. NICHOLAS KASIRER, J.A.