2023 QCCA 492, 2023 QCCA 492

Bertucci c. Rathwell 2023 QCCA 492 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030468-235 (700-17-017869-214) ( 700-17-018003-219 ) MINUTES OF HEARING DATE: April 14, 2023 THE HONOURABLE BENOÎT MOORE, J.A. APPLICANT COUNSEL Frank Bertucci Mtre STEPHEN SIMMONS ( Greenspoon Winikoff ) Absent RESPONDENT COUNSEL Andrew rathwell Mtre RAFIK MOULOUD BENTABBEL ( Bélanger Paradis Avocats ) Absent IMPLEADED PARTIES COUNSEL Dale Rathwell Mtre JAMES MCDONALD ( Nelson Champagne ) Absent OFFICIER DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION FONCIÈRE D’aRGENTEUIL ABSENT AND UNREPRESENTED

DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on January 20 th , 2023 by the Honourable Bernard Jolin of the Superior Court , District of Terrebonne (Articles 31, al. 2 and 357 C.C.P. ). Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING Continuation of the hearing held on April 13, 2023. The parties were excused from appearing in Court. BY THE JUDGE : Judgment – see page 4.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] The applicant wishes to appeal from a Superior Court judgment rendered on January 20, 2023 (the Honourable Bernard Jolin), which dismissed his application for homologation of a transaction and dismissed the respondent’s application to dismiss the amended judicial application originating a proceeding for transfer of title and have it declared abusive. [ 2 ] On May 23, 2021, the parties entered into a bilateral promise whereby the respondent undertook to sell to the applicant the lots owned and/or held in undivided co-ownership by the respondent in Arundel, for an amount of $2,500,000. [ 3 ] In July 2021, the applicant filed an application to compel the transfer of title and, on February 14, 2022, he added thereto a conclusion to have the respondent condemned to pay $500,000 in damages. [ 4 ] In July 2022, the parties’ attorneys held negotiations with a view to settling the dispute. [ 5 ] On September 1, 2022, the respondent filed an application to dismiss the applicant’s application to compel the transfer of title. [ 6 ] On September 6, 2022, the applicant in turn filed the application for the homologation of a transaction, which transaction he claims was entered into on July 28, 2022 through an exchange of emails. [ 7 ] The judgment under appeal dismissed the applicant’s application for homologation and the respondent’s application to dismiss the amended judicial application originating a proceeding for transfer of title and have it declared abusive.

Only the first component is the subject of an application for leave to appeal. On that matter, basing himself on the correspondence leading to the July 28, 2022 email [1] as well as the correspondence subsequent to that email, [2] the judge concluded that the date of the sale, namely on or before August 12, 2022, was an essential element of the transaction. Since the parties did not agree on that date, no transaction could have occurred. [ 8 ] In support of his application for leave to appeal, the applicant essentially raises two grounds.

First, he claims that the judge erred in concluding that the respondent did not accept the last offer dated July 28, 2022. In his view, the email from the respondent’s attorney clearly constituted an acceptance of the settlement offer and contained no conditions. The six conditions added in the letter sent by the attorney the following day are, in the applicant’s opinion, an unlawful attempt to revoke that acceptance.

[ 9 ] Subsidiarily, if the Court were to conclude that the email from the respondent’s attorney implicitly contained the condition that the deed be signed on or before August 12, 2022, the judge erred in concluding that this was an essential condition of the transaction. In the applicant’s view, it was but an accessory condition, one that could be negotiated at a later date. [ 10 ] At the hearing, the parties presented their arguments under both

article 30 paragraph 2(8) and

article 31 of the Code of Civil Procedure . In the latter case, I would point out that leave will be granted if the judgment “[…] determines part of the dispute or causes irremediable injury to a party, including if it allows an objection to evidence”. This, however, is not sufficient. The applicant must also convince the judge that “l’appel envisagé est dans l’intérêt de la justice (art. 9, 3 e al. C.p.c. ) en ce qu’il soulève une question méritant l’attention de la Cour, présente des chances raisonnables de succès et s’accorde aux principes directeurs de la procédure (art. 17 et s. C.p.c. )”. [3] [ 11 ] In the present case, there is no need to determine which

article applies because, in any event, I am of the opinion that the criteria have not been met. The applicant’s grounds of appeal raise only questions of fact as to whether or not there was a transaction between the parties. That said, the applicant has not pointed to or convinced me of the existence of a palpable and overriding error committed by the judge in assessing the evidence and, more specifically, the exchange of correspondence. Since the appeal is therefore doomed to fail, it would not be in the interests of justice or consistent with the principles of proportionality to grant leave.

FOR THESE REASONS, THE UNDERSIGNED: [ 12 ] DISMISSES the application for leave to appeal, with legal costs. BENOÎT MOORE, J.A.