2019 QCCA 228, 2019 QCCA 228

Syndic de Petrolito 2019 QCCA 228 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027955-186 (500-11-055089-185) MINUTES OF THE HEARING DATE: February 12, 2019 THE HONOURABLE ROBERT M. MAINVILLE, J.A. In the matter of the bankruptcy of Madam Antonella Petrolito: PETITIONER COUNSEL ANTONELLA PETROLITO Mtre ALAN M. STEIN ( Alan M. Stein) RESPONDENT COUNSEL THEMIS MULTIFACTUMS INC. Mtre Howard L. Tatner (Howard L.Tatner) IMPLEADED PARTY LITWIN BOYADJIAN INC.

ABSENT DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceedings on October 30, 2018 by the Honourable David R. Collier of the Superior Court, District of Montreal. Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 10:09 Commencement of the hearing. Submissions by Mtre Alan M. Stein. 10:19 Submissions by Mtre Howard L. Tatner. 10:32 Rebuttal by Mtre Stein. 10:33 Recess. 10:48 Resumption. BY THE JUDGE: Judgment – See page 3. 10:51 End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] The applicant, Antonella Petrolito, is a disbarred lawyer who went bankrupt. She seeks leave to appeal a judgment of October 30, 2018 rendered by the Honourable David R. Collier of the Superior Court, District of Montreal, in the context of her bankruptcy proceedings. That judgment; (

a) lifts a stay of proceedings in an action before the Court of Quebec taken against the applicant by the respondent, Themis Multifactum inc., for a claim of unpaid services related to the preparation of an appeal brief for one of the applicant’s clients; and (

b) declares that an order of discharge from bankruptcy respecting the applicant does not release her from that claim amounting to $6,369.22, plus interest, the additional indemnity and costs. [ 2 ] The applicant submits that the leave application should be decided pursuant to

article 31 of the Code of Civil Procedure . However, it is rather paragraph 193 (

e) of the Bankruptcy and Insolvency Act which applies here. [ 3 ] The decision of Justice Collier flows from paragraph 178(1) (

e) of the Bankruptcy and Insolvency Act and it is largely based on his assessment of the applicant’s credibility with respect to false pretenses or fraudulent representations made to secure the services of the respondent and leading to the claim before the Court of Québec. [ 4 ] In this case, the applicant submits that the judge erred in concluding that she failed to disclose to the respondent that it was her client and not herself who would be paying for its services, thus depriving the respondent from requesting an advance payment, as is its policy in such circumstances. [ 5 ] The judge concluded that the applicant wilfully misinformed the respondent by failing to disclose a material fact about the conditions upon which its services were being retained, namely that she had no intention of paying the respondent unless her client was successful on appeal and could execute the judgment.

In essence, the applicant secured the services of the respondent on a contingency basis without informing it of this important fact. The judge concluded that this behaviour was captured under paragraph 178(1) (

e) of the Bankruptcy and Insolvency Act . [ 6 ] I am of the view that the point raised by the applicant is not significant to bankruptcy proceedings. Moreover it has no reasonable chance of success on appeal. Leave to appeal will therefore be denied. FOR THESE REASONS, THE UNDERSIGNED:

[ 7 ] DISMISSES the application for leave to appeal, with legal costs. robert m. mainville, J.A.