2014 QCCA 635, 2014 QCCA 635

Lubecki Technical Holdings Inc. c. Banque Royale du Canada 2014 QCCA 635 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-09-022748-123 (500-05-048670-994) PROCÈS-VERBAL D'AUDIENCE DATE: 26 mars 2014 CORAM: LES HONORABLES NICOLE DUVAL HESLER, J.C.Q. FRANÇOIS DOYON, J.C.A. JACQUES A. LÉGER, J.C.A. APPELANTE AVOCAT(

S) LUBECKI TECHNICAL HOLDINGS INC. Me Paul-André Mathieu Corporation d'avocats Mathieu inc. INTIMÉE AVOCAT(

S) BANQUE ROYALE DU CANADA Me Ronald Audette Gowling Lafleur Henderson s.e.n.c.r.l

En appel d'un jugement rendu le 4 mai 2012 par l'honorable Roger E. Baker de la Cour supérieure, district de Montréal.

Requête de l’intimée pour exclusion de certaines pièces du mémoire d'appel de l’appelante déférée à une formation de la Cour d’appel, le 25 février 2014 par l’honorable Marie St-Pierre, J.C.A. (Articles 2, 20, 46, et 507 Code de procédure civile ) NATURE DE L'APPEL : Responsabilité bancaire Greffière: Marcelle Desmarais Salle: Antonio-Lamer AUDITION 9 h 33 Argumentation par Me Paul-André Mathieu. 10 h 35 Fin de l'argumentation de Me Paul-André Mathieu. 10 h 35 Suspension de la séance. 10 h 39 Reprise de la séance. PAR LA COUR: Arrêt unanime prononcé par l'honorable Nicole Duval Hesler, J.C.Q. – voir page 3.

Marcelle Desmarais Greffière d’audience BY THE COURT :

JUDGMENT [ 1 ] The Appellant is claiming $1,838,794.91 in damages resulting from the Respondent’s failure to provide it with mortgage financing in order to purchase the building that housed its business branch in Granby for a price of $560,000 under the terms of an option to buy lapsing less than 30 days after it was received (March 10 to April 7, 1996). [ 2 ] The Appellant holds the Respondent bank responsible for that missed opportunity.

It alleges in its Re-amended Detailed Declaration that : [1] In 1990, 91, Royal was appointed the financial partner of Plaintiff through banking resolutions (P-1A and P-1B) of Plaintiff company. . . . [15] Defendant colluded with Quebec Inc. to prevent Plaintiff from purchasing the building and “as a result of Defendant’s abusive, malicious and intentional conduct, Plaintiff lost its option to purchase the Building which was sold to a third party.” [ 3 ] The issues of liability and quantum were severed and the trial judge was only seized with the issue of liability on the part of the Respondent bank.

He found that the Appellant had not proved its allegations against the Respondent. [ 4 ] As the Appellant concedes, the present appeal only raises issues of facts. [ 5 ] On the basis of the evidence, the trial judge was justified to conclude that the Appellant’s representative was aware of the obligation to produce financial statements in order to allow a proper assessment of its request for additional credit facilities, including mortgage financing through Respondent. [ 6 ] In point of fact, those statements were not produced until the allotted delay had come and gone.

To the contrary, the same representative advised the Bank that she was not in a position to produce the requested statements within that delay. [ 7 ] It is appropriate at this point to quote the following paragraphs in the judgment a quo : [22] From the point at which Normandin wrote giving Plaintiff 30 days to exercise its option, Plaintiff, through the incompetence and almost wilful blindness of Mrs.

Lubecki failed to furnish Royal with its relevant financial statements, and persisted in stating that she wanted financing far beyond what she had been told was the maximum percentage that Royal was prepared to lend against the capital amount of the desired mortgage loan. [23] The plethora of letters from Lubecki to Royal, particularly to Mr. Riopel in the 30 day period after the Normandin letter indicate that the writer (Mrs. Lubecki) simply had no understanding of what was required to obtain a commercial mortgage loan. She is now attempting to blame her banker for her own inexperience. [24] Mrs.

Lubecki contended that she was never informed by Royal that it required the financial statements of Plaintiff for the year ending December 15, 1995 for the purpose of analyzing the request for a mortgage loan. This is contradicted by her letter (D-13) to Mr. Riopel of March 29, 1996, only a few short days prior to the expiry of the 30 day option: “Dear Mr. Riopel: Thank you for your time, which you spent with us this morning.

As follows are the subjects I am to get back to you on Monday, April 1 st , 1996: 1: Our financial statement for the year ended December 15, 1995 ; (…) [ 8 ] The trial judge also concluded, as a finding of fact, that “prior to the expiry date on the option Plaintiff wished to lease rather than purchase the building” (at para. 24 of the judgment a quo ).

And that is indeed what the Appellant did, signing another lease with the owner of the building. [ 9 ] In addition, the Appellant's representative had already “written to the Respondent stating that she would purchase the building personally, thus in theory rendering the financial statements of the Appellant irrelevant, and in fact, enclosing her own personal statement (para. 25 of judgment a quo ). [ 10 ] Appellant fails to demonstrate, in the judgment a quo , any palpable and overriding error that would justify the intervention of the Court. FOR THESE REASONS, THE COURT: [ 11 ] DISMISSES the appeal, with costs.

NICOLE DUVAL HESLER, C.J.Q. FRANÇOIS DOYON, J.A. JACQUES A. LÉGER, J.A.