2013 QCCA 111, 2013 QCCA 111

Farley (Estate of) c. Bank of Montreal 2013 QCCA 111 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022312-128 ( 500-17-067023-112 ) MINUTES OF THE HEARING DATE: January 21, 2013 CORAM: THE HONOURABLE JACQUES DUFRESNE, J.A. JEAN BOUCHARD, J.A. CLÉMENT GASCON, J.A. APPELLANT ESTATE OF THE LATE JOAN FARLEY Mr. Mark Farley (via conference call) RESPONDENT ATTORNEY BANK OF MONTREAL Mtre Marika Douville TREMBLAY AVOCATS INC. ATTORNEY

TWO MOTIONS TO DISMISS THE APPEAL Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 14 h 03 Beginning of the hearing. On the request for postponement of the hearing of the two motions to dismiss the appeal : 14 h 03 Representations by Mr. Farley 14 h 23 Representations by Mtre Douville. 14 h 47 By the Court : decision on the request for postponement (see next page). 14 h 50 On the first motion to dismiss the appeal based on the failure to file the security as ordered by the Court on October 1 st , 2012: 14 h 50 Representations by Mtre Douville. 14 h 53 Representations by Mr.

Farley. 14 h 59 Recess. 15 h 04 Resumption of the hearing. 15 h 07 Judgment (see next page). 15 h 07 End of the hearing. Robert Osadchuck Clerk BY THE COURT JUDGMENT On the request for postponement : [ 1 ] The Appellant’s representative, Mr. Mark Farley, is asking that we postpone the two Motions to Dismiss filed by the Respondent, Bank of Montreal, that are pending before us today. [ 2 ] The two pending Motions were duly served on the Appellant on December 17 th , 2012.

[ 3 ] On January 14 th , 2013 the Appellant’s representative, Mr. Mark Farley, sent an e-mail to the Registry of the Court stating that the Appellant had been prepared to argue, on January 9 th, the Motion to Dismiss based on Appellant's failure to file a security as ordered by the Court on October 1 st , 2012. [ 4 ] There is no valid reason to postpone the present hearing. [ 5 ] In addition, the Appellant had ample time to have the motion or motions translated in order to prepare for today's hearing. FOR THESE REASONS, THE COURT: [ 6 ] DISMISSES the request for postponement, costs to follow suit.

On the Motion to Dismiss the Appeal based on the failure to file the security as ordered by this Court on October 1 st , 2012: [ 7 ] The Appellant inscribed in appeal a judgment ordering the forced surrender of the immovable rendered, without contestation, by the Special Clerk of the Superior Court. [ 8 ] On July 5 th , 2012 the Court granted the Appellant's Motion to Extend the Time to Serve and File its Factum peremptorily until August 6, 2012. [ 9 ] On October 1 st , 2012 the Court ordered the Appellant to provide security of $20 000 within 30 days of this judgment. [ 10 ] The Appellant has failed to file the security ordered. [ 11 ] This default is fatal to the appeal which must, accordingly, be dismissed.

FOR THESE REASONS, THE COURT: [ 12 ] GRANTS the Respondent's Motion to Dismiss the Appeal, with costs; [ 13 ] DISMISSES the appeal, with costs; [ 14 ] The other Motion to Dismiss the Appeal is without object and therefore is dismissed, without costs. JACQUES DUFRESNE, J.A. JEAN BOUCHARD, J.A. CLÉMENT GASCON, J.A.