2015 QCCA 606, 2015 QCCA 606

Fanin c. Bilovus 2015 QCCA 606 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024867-145 (500-17-066749-113) (500-17-071529-120) DATE: April 10, 2015 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. NICHOLAS KASIRER, J.A. JEAN-FRANÇOIS ÉMOND, J.A. ALEXEY FANIN KIRA BREZHNEVA PETITIONERS - Plaintiffs v. JOHN BILOVUS YOLANDA ROMANETTI RESPONDENTS - Defendants JUDGMENT [ 1 ] On November 4, 2014, the Superior Court, District of Montreal (the Honourable Marie-Anne Paquette) [1] , rendered judgment on the petitioners’ action for the resolution of the sale of an immovable for latent defects.

The petitioners also claimed damages in the amount of $612,826.37 from the respondents and vendors of the immovable in question. The respondents, for their part, had filed a counter-claim alleging that the petitioners’ action was abusive, and they sought the reimbursement of their legal fees in the amount of $50,000. The judgment, which dismissed the petitioners’ action, also contains the following three paragraphs: [127] GRANTS the Cross-Demand of Mr. John Bilovus and Mrs. Yolanda Romanetti; [128] DECLARES that the lawsuits of Mr. Alexey Fanin and Mrs. Kira Brezhneva against Mr. John Bilovus and Mrs.

Yolanda Romanetti, in files no 500-17-066749-113 (Action for Latent Defects) and 500-17-071529-120 (Action for Injunctive Relief) are abusive; [129] CONDEMNS Mr. Alexey Fanin and Mrs. Kira Brezhneva solidarily to pay $50,000 to Mr. John Bilovus and Mrs. Yolanda Romanetti, plus interest and additional indemnity as per [article] 1619 of the Civil Code of Québec , as of the date of the present judgment. [ 2 ] The petitioners filed an inscription of appeal on December 1, 2014. [ 3 ] Pursuant to

article 547 (

j) C.C.P. , the judgment of November 4 was subject to provisional execution notwithstanding appeal. On December 18, 2014, the petitioners appeared before a member of the Court sitting in chamber and they presented a motion to suspend the execution of the judgment. Upon dismissing their motion, the judge expressed some doubts as to the validity of the inscription of December 1 st . [ 4 ] As a result, on December 19, 2014, and pursuant to

article 523 C.C.P. , the petitioners filed an application for a special leave to appeal despite the expiry of the peremptory time limit of

article 494 C.C.P. and they further sought leave under

article 26, par. 2,

(4.1) C.C.P. The panel which heard these two applications on February 2 took the case under advisement. [ 5 ] At the time these applications were brought forward, it could be contended on the basis of Comito v. Markos [2] , a judgment by a member of the Court sitting as a motions judge, that by reason of the amount in dispute between the parties ($612,826.37 + $50,000), the judgement of November 4 was appealable as of right. This question has now been revisited by a panel of the Court and the judgment delivered on April 9, 2015, in Savoie v.

Thériault-Martel [3] makes it clear that, where the judgment of first instance includes a declaration such as that set out in par. [128] of the judgment below, leave is required under

article 26, par. 2,

(4.1) C.C.P. regardless of the amount in dispute on appeal. An application for leave to appeal was therefore mandatory in this instance and the petitioners could not inscribe their appeal as they did on December 1, 2014 [ 6 ] As regards the application for leave to appeal, it must fail.

[ 7 ] The grounds of appeal set out in paragraphs 6 to 61 of the inscription of December 1, 2014, all challenge the findings of fact of the trial judge, which were amply supported by extensive reasons in her judgment. None of these grounds could qualify under the second paragraph of

article 26 C.C.P. (which provides that “ [an] appeal also lies, with leave of a judge of the Court of Appeal, when the matter at issue is one which ought to be submitted to the Court of Appeal, particularly where, in the opinion of the judge, the matter at issue is a question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents” ). Accordingly, the application will be dismissed with costs. [ 8 ] FOR THESE REASONS , the Court: [ 9 ] DISMISSES the application, with costs. YVES-MARIE MORISSETTE, J.A. NICHOLAS KASIRER, J.A. JEAN-FRANÇOIS ÉMOND, J.A.

Mtre Josée Brière Joli-Coeur Lacasse For Petitioners Mtre Stéphanie Racette Letellier McKenzie For Respondents Date of hearing: February 2, 2015