2018 QCCA 1388, 2018 QCCA 1388

Ogunfowora c. Caisse Desjardins de l'Ouest-de-l'Île 2018 QCCA 1388 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027565-183 (500-17-097016-177) MINUTES OF THE HEARING DATE: August 27, 2018 CORAM: THE HONOURABLE louis rochette , J.A. mark schrager , J.A. patrick healy , J.A. APPELLANTS COUNSEL PETER OLUWATOYIN OGUNFOWORA LESLEE TRAINOR Mtre SARA LARAÏCHI-BEDOUI (Dupuis Paquin) RESPONDENT COUNSEL CAISSE DESJARDINS DE L’OUEST-DE- L’ÎLE Mtre MAXIME PRIDMORE (Dunton Rainville, s.e.n.c.r.l.) On appeal from a judgment rendered on April 27, 2018 by the Honourable Justice Gregory Moore of the Superior Court, District of Montreal

DESCRIPTION : Application for leave to appeal beyond the delays (Article 363 C.C.P.) Application to dismiss an appeal (Article 365 C.C.P.) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 2: 20 Commencement of the hearing. Identification of counsel. 2:20 Submissions by Mtre Laraïchi-Bedoui. 2:37 Recess. 2:40 Resumption of the hearing 2:40 By the Court: judgment – see page 3. 2:43 Conclusion of the hearing. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] By judgment dated April 27, 2018, notified to the parties on May 10, 2018, the Superior Court, District of Montreal (the Honourable Gregory Moore), dismissed Appellants’ defence and cross-demand pursuant to

Article 51 C.C.P. [ 2 ] Respondent had instituted proceedings for forced surrender of Appellants’ immoveable in virtue of a hypothec granted to secure a loan. Appellants are alleged to be in default to make the monthly payments of capital and interest of $1 351.58 since August 29, 2016, to pay real estate taxes and to provide proof of insurance. [ 3 ] In defence, Appellants alleged a conspiracy involving the Respondent, a former president of the Respondent and others to deprive them of their property.

The transcript of their deposition convinced the judge that these assertions had no factual foundation and as such were abusive. [ 4 ] Moreover, there is no indication that the defaults alleged above were ever cured. [ 5 ] The judgment a quo is not final so that leave to appeal is required pursuant to

Article 31 C.C.P. As well, leave would be required under 30(3) C.C.P. since the defence and cross-demand was dismissed as abusive. Appellants have filed such a motion but beyond the delays. [ 6 ] The appeal on its face is without merit and, as such, has no reasonable chance of success. The monetary defaults continue to exist. The exercise by the judge of his discretion to declare the defense abusive is based on the record before him and does not appear affected by any manifest error.

[ 7 ] Accordingly, the appeal should be dismissed as leave was not obtained and leave should not be granted since the appeal would have no reasonable chance of success. FOR THESE REASONS, THE COURT: [ 8 ] GRANTS the motion to dismiss the appeal, with legal costs; [ 9 ] DISMISSES the appeal with legal costs; [ 10 ] DISMISSES the motion for leave to appeal with legal costs. louis rochette, J.A. mark schrager, J.A. patrick healy, J.A.