2023 QCCA 646, 2023 QCCA 646

Asaduzzaman c. Léonard 2023 QCCA 646 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030315-220 (500-17-118719-213) DATE: May 12, 2023 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. FRÉDÉRIC BACHAND, J.A. PETER KALICHMAN, J.A. RUSTUM ASADUZZAMAN PETER MICHALAKOPOULOS APPELLANTS – Plaintiffs v. CAROLINE LÉONARD CARDINAL LÉONARD DENIS, AVOCATS S.N. ANTOINE VAN AUDENRODE DAVID BANON SPIEGEL SOHMER INC. JEAN-FRANÇOIS BEAUDET QTMG, HUISSIERS DE JUSTICE INC.

RESPONDENTS – Defendants JUDGMENT [ 1 ] The appellants appeal from a decision rendered on November 2, 2022, by the Superior Court, district of Montreal (the Honourable Janick Perreault), dismissing their action against the respondents and declaring it abusive. [1] [ 2 ] The respondents present an application to dismiss the appeal. They ask as well that the Court relieve them of their default to bring the application within the required time limit (art. 365 para. 2 C.C.P. ).

Since the time limit is not strict and considering art. 365 para. 3, the respondents will be relieved of their default. [ 3 ] With respect to the application to dismiss, the respondents argue that the appeal was improperly initiated, the appellants having failed to obtain leave pursuant to

article 30 para. 2

(3) C.C.P. The respondents are correct and leave to appeal was required. [ 4 ] The appellants present a verbal application to be authorized to appeal outside the applicable time limit pursuant to art. 363 C.C.P .

However, that application cannot be granted as more than six months have elapsed since the date of the judgment. [2] Furthermore, it was clearly not impossible for the appellants to act sooner; in fact, they did act sooner by bringing an application for leave to appeal which they subsequently discontinued and which cannot simply be revived. [3] [ 5 ] At any rate, if the appellants were able to seek leave to appeal, it would be denied.

The appeal has no chance of success, reasonable or otherwise. [ 6 ] In their proceedings in first instance, the appellants alleged that the respondents conspired with their creditor to mislead the courts and illegally take their properties in payment of a debt. The problem – as the judge recognizes – is that the appellants had already brought proceedings against the creditor seeking the same conclusions and those proceedings were dismissed.

In her thorough and well- reasoned judgment, the judge sets out in detail the underlying facts, the history of the proceedings and the numerous judgments, including those of this court, in which the appellants’ claim was not only found to lack merit, but to be abusive. She concludes that even though the claim is directed at the respondents and not the creditor, the appellants are attempting to revive a cause of action that has been definitively rejected by the courts and that their proceedings are thus abusive. [ 7 ] There is no reviewable error in the judgment.

Furthermore, in the Court’s view, no person acting reasonably would think that the appeal could possibly succeed given – as was indicated above - that the essence of the claim the appellants seek to advance has been definitively rejected. [4] This message has been conveyed to the appellants on numerous occasions, but they appear to take no notice and persist in bringing proceeding after proceeding, including the present appeal, which manifestly has no merit whatsoever and is thus abusive. FOR THESE REASONS, THE COURT:

[ 8 ] RELIEVES the respondents of their default to file the application to dismiss within the time limit set out at art. 365 par. 2 C.C.P. and EXTENDS the time limit accordingly; [ 9 ] DISMISSES the appellants’ verbal application to be authorized to appeal outside the applicable time limit pursuant to art. 363 C.C.P . or to revive their discontinued application for leave to appeal; [ 10 ] GRANTS the application to dismiss the appeal with legal costs; [ 11 ] DISMISSES the appeal with legal costs. MARIE-FRANCE BICH, J.A. FRÉDÉRIC BACHAND, J.A. PETER KALICHMAN, J.A.

Rustum Asaduzzaman Peter Michalakopoulos Unrepresented Mtre Laurence Gauthier ROBINSON SHEPPARD SHAPIRO For Caroline Léonard and Cardinal Léonard Denis, Avocats Mtre Peter Joseph Moraitis LAPOINTE ROSENSTEIN MARCHAND MELANÇON For Antoine Van Audenrode, David Banon and Spiegel Sohmer Inc. Mtre Sylvain Racette BÉLANGER SAUVÉ For Jean-François Beaudet and QTMG Huissiers de Justice Inc. Date of hearing: May 8, 2023