2019 QCCA 480, 2019 QCCA 480

9208-0472 Quebec inc. c. Bank of Nova Scotia 2019 QCCA 480 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028054-195 (540-17-008732-132) MINUTES OF THE HEARING DATE: March 21, 2019 CORAM: THE HONOURABLE jacques dufresne , J.A. patrick healy , J.A. geneviève cotnam , J.A. APPELLANTS COUNSEL 9208-0472 QUEBEC INC. REISEL WOSNER Mtre JACQUELINE SANDERSON RESPONDENT COUNSEL BANK OF NOVA SCOTIA Mtre PETER F. GUARNIERI Mtre nicolas duval melillo (Di Minico Petit Guarnieri) On appeal from a judgment rendered on December 6, 2018 by the Honourable Justice Gregory Moore of the Superior Court, District of Laval

DESCRIPTION : Application to dismiss the appeal and subsidiarily application for provision of a suretyship (Articles 364 and 365 C.C.P .) Clerk: Mai Nguyen Courtroom: Pierre-Basile-Mignault HEARING 9 h 30 Continuation of the hearing of March 18, 2019. The parties’ attendance is not required this morning. BY THE COURT: JUDGMENT – SEE PAGE 3. End of the hearing.

Mai Nguyen Clerk BY THE COURT JUDGMENT [ 1 ] The respondent, Bank of Nova Scotia (“BNS”), seeks to dismiss the appeal because it has no reasonable chance of success. [ 2 ] BNS sought to recover amounts in credit from the company, which were guaranteed by appellant Reisel Wosner.

The trial proceeded by default and judgment was given in favour of BNS. [ 3 ] The appeal is advanced on three grounds: ▪ the judge erred in law by not granting a postponement; ▪ the judge erred in law by stating that the bank sold equipment to a related company because the purchaser’s address was the same as that of the appellant company; ▪ the judge erred in law by ordering the appellant to pay legal fees in the amount of $30,000 for an action of less than $100,000. [ 4 ] There is no chance of success on any of these grounds.

Postponement [ 5 ] The trial proceeded on the fixed date, which was set one year before. The appellant Wosner was absent for medical reasons but her husband, Mr. Twersky, was present in court. The secretary of the appellant company, Mr. Loeffler, was also present in the courtroom but counsel did not attend to represent the company.

On the day before the trial counsel for the appellants advised BNS that these parties would not be represented in court by counsel and that the trial could proceed by default. [ 6 ] The judge notes that on a previous date the appellants were also not represented at trial by counsel and thus the matter had been postponed for a year. He was informed that at the date of trial the appellants were represented by counsel but that counsel would not

appear. He was referred to records of case management that set out a detailed chronology of the case. Further, he notes the letter of counsel, sent on the eve of trial, stating that the trial could proceed by default. Finally, the judge ensured that Mr. Twersky and Mr. Loeffler had ample opportunity to speak to the court. [ 7 ] In these circumstances it cannot be said that there was a violation of the principles of natural justice. The decision to proceed was a matter for the judge’s discretion and he decided to proceed by default after having taken due caution to protect the interests of the appellants.

Related company [ 8 ] At the trial the appellant Wosner’s husband questioned the sale price of equipment to realise BNS’s guarantee. He said that it was far below the purchase price of the equipment and that the appellants had no opportunity to find a buyer at a better price. [ 9 ] The trial judge accepted that the equipment purchased by the appellant company with credit from BNS was properly sold, after due evaluation by a qualified evaluator, to a related company. In a footnote the judge notes that these two companies share the same address.

The relevance of this point for the judge is that an inference can be drawn that both companies agreed upon the sale price. The judge in no way impugns the sale of the equipment. [ 10 ] There is no chance of success in this ground of appeal. Legal costs [ 11 ] The judge orders the payment of legal fees and disbursement in accordance with agreements to this effect contractually undertaken by the appellants with BNS. The amounts were proved. Accordingly, this is not an issue relating to the exercise of judicial discretion over legal costs but the enforcement of a contractual undertaking.

Conclusion [ 12 ] The appellants have failed to demonstrate that their appeal has a reasonable chance of success. There is no reason to declare the appeal dilatory. [ 13 ] It follows that the alternative conclusion proposed by the respondent has no object. FOR THESE REASONS, THE COURT: [ 14 ] GRANTS respondent’s motion to dismiss the appeal, with legal costs; [ 15 ] DISMISSES the appeal, with legal costs. jacques dufresne, J.A. patrick healy, J.A. geneviève cotnam, J.A.