2021 QCCA 1220, 2021 QCCA 1220

Eshoo c. Khadir 2021 QCCA 1220 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029508-215 ( 500-17-100069-171 , 500-17-104822-187) MINUTES OF HEARING DATE: August 4, 2021 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A. APPLICANT COUNSEL Michael Eshoo Mtre ISRAEL H. KAUFMAN ( Kaufman Legal Services ) ABSENT Mtre DANIEL BROOK ( Brook Legal) ABSENT RESPONDENT COUNSEL Aboudjafar Khadir Mtre DAVID CHOINIÈRE Mtre GENEVIÈVE FAVRE-SAVOIE ( Dunton, Rainville ) ABSENT On appeal from a judgment rendered on 31st March, 2021 by the Honourable Pierre-C. Gagnon of the Superior Court , District of Montreal .

DESCRIPTION: Application for leave to appeal de bene esse amended (Articles 30 (2) and 357 C.C.P. ). Application for a stay of provisional execution of the judgment (Article 660 C.c.p. ). Application de bene esse for the dismissal of an appeal and subsidiarily in provision of a suretyship (Articles 364 and 365 C.c.p. ). Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 9:29 Commencement of the hearing. Continuation of the hearing held on August 3, 2021. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 4. 9 h 30 Conclusion of the hearing.

Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] The Appellant was the 50% co-owner of a six-plex with the Respondent from 2000 until 2009, when, because of certain financial difficulties, he sold his interest to the Respondent. In return, the Respondent assumed responsibility for a hypothec on the property that guaranteed repayment of a $250,000 loan from a financial institution to the Appellant. The Respondent alleges that the sale was a simulation and that he remained co-owner notwithstanding the sale. [ 2 ] In the resulting litigation, the main issue was the ownership of the 50% interest.

A number of monetary claims also flowed from this main issue – the Appellant claimed $185,000 in pecuniary, moral and punitive damages for loss of furniture, loss of enjoyment of property and compensation for work executed on the property; the Respondent claimed $173,421.75 for lost rent, trouble and inconvenience, and legal fees. [ 3 ] At the trial, the Appellant did not produce a written counter letter, but rather sought to establish the existence of a counter letter through his testimony. The Respondent objected. The trial judge took the objection under reserve.

In his judgment on the merits, he held that there was no commencement of proof in writing that would make such testimony admissible and therefore maintained the objection. Without the Appellant’s testimony, the evidence did not support the existence of a counter letter.

The judge recognized that, after the sale, the Appellant continued to live in the building and acted as the concierge and manager until 2017, but gave more weight to the fact that the Respondent alone paid the hypothec since 2009, with no contribution from the Appellant. [ 4 ] As a result, the judge dismissed the Appellant’s claim to a 50% interest in the building, and his monetary claims followed. [ 5 ] The Respondent’s monetary claims were allowed in part – $41,294.52 for lost rent, $10,000 in moral damages for harassment

and $40,000 in lawyers’ fees for abuse of process. [ 6 ] The Appellant filed a notice of appeal and an application for leave to appeal de bene esse .

He takes the position that he needs leave to appeal only with respect to the conclusions ordering him to pay $10,000 in moral damages for harassment and $40,000 in lawyers’ fees for abuse of process, and that he has an appeal as of right on the other conclusions. [ 7 ] The Respondent, who argues that leave to appeal is required for the judgment as a whole and should not be granted, also filed a motion to dismiss the appeal de bene esse on the ground that, without regard to the issue of leave to appeal, the appeal has no reasonable chance of success.

The Respondent also asks that the appeal be declared abusive and that the Appellant be ordered to pay him $10,000 in extrajudicial fees, in addition to the legal costs.

If the Court decides to let the appeal continue, he asks to subject the appeal to the provision of a suretyship of $101,294.52. [ 8 ] Finally, the Appellant made a motion for a stay of provisional execution of the conclusions ordering him to pay $10,000 in moral damages for harassment and $40,000 in lawyers’ fees for abuse of process. *** [ 9 ] The Appellant needs leave to appeal with respect to the judgment as a whole, not just specific conclusions.

In addition to the procedural abuses committed in the course of the proceedings, the judge found that the Appellant’s action was frivolous from the outset: [178] Dans les deux affaires auxquelles le présent jugement met fin, M. Eshoo a institué et mené des procédures abusives au sens de l’article 51 du Code de procédure civile (« C.p.c. »). [179] Ses procédures étaient frivoles en ce qu’il savait fort bien qu’il avait cédé sa demi-part de l’Immeuble en 2009 pour se libérer du poids des paiements hypothécaires, dont M. Khadir reprenait charge, même si le refinancement hypothécaire de 2005 ne servait qu’à M.

Eshoo pour son projet distinct sur la rue Saint-Jacques. [1] [ 10 ] Moreover, even though there is no express declaration of abuse in the conclusions of the judgment, the judge stipulates that the condemnation to pay the lawyers’ fees is based on

Article 54 C.C.P. [ 11 ] All of this is sufficient to require leave to appeal under Beauregard c. Boulanger (Succession de Boulanger) : [27] De plus, les principes réitérés par la Cour dans Restaurant King Ouest s’appliquent à plus forte raison lorsque le juge accueille la demande en abus à l’issue d’un procès. Il n’importe pas que la demande en abus soit présentée dans une demande sous l’article 51 C.p.c ., dans la défense, dans une demande reconventionnelle ou verbalement lors du procès.

Il suffit que le juge l’accueille dans le même jugement où il rejette la demande pour considérer que la demande est rejetée en raison de son caractère abusif. Dans un tel cas, le droit d’appel est assujetti à une permission. [28] Une déclaration d’abus dans le dispositif du jugement est une indication claire que le juge a accueilli la demande en abus et permet aux parties de reconnaître la nécessité d’une permission, sans qu’elles aient à examiner les motifs du juge à la loupe.

La déclaration d’abus alerte aussi la Cour de porter une attention particulière à l’affaire afin de ne pas laisser l’abus se perpétuer en appel. Le juge unique saisi de la demande de permission est alors bien placé pour faire cette analyse. [29] Toutefois, il n’est pas nécessaire que le dispositif comprenne une déclaration d’abus ou les mots « abusif » ou « abus » pour conclure que le juge a accueilli la demande en abus.

En l’absence d’une déclaration d’abus expresse dans le dispositif du jugement, on peut, en examinant les motifs, conclure que le juge a accueilli la demande fondée sur l’article 51 C.p.c. , comme dans Restaurant King Ouest . [2] [Renvoi omis] [ 12 ] Leave to appeal is therefore required [3] , and will only be granted if “the matter at issue is one that should be submitted to [the] Court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions”. [4] The interest of justice and the principle of proportionality must also be considered. [5] [ 13 ] The Appellant raises the following grounds of appeal: The judge did not properly consider as a commencement of proof that he had part ownership of the property the fact that the Appellant provided concierge services and did significant brick work on the property without remuneration; The judge treated the Respondent as a credible witness despite the numerous contradictions in his testimony; The judge erred with regards to his conclusion that the Appellant’s proceedings were abusive; The judge erred by condemning the Appellant to pay $10,000 in moral damages as the Appellant was already condemned for the same during the proceedings on contempt of the Court; The judge erred in considering the Respondent’s original claim for damages in his analysis of the abuse of procedure instead of the then modified version. [ 14 ] The Appellant fails to convince us that the grounds proposed are such that they should be submitted to the Court.

The issues raised are very fact-specific and do not extend beyond the interests of the parties. [ 15 ] Further, the appeal on its face has no reasonable chance of success. [ 16 ] With respect to the concierge services and the work done, the judge was satisfied that there was an agreement between the parties that the Appellant could choose his apartment, pay a reduced rent, use the basement and park his vehicle on the property in exchange for providing services. In addition, he was permitted to reimburse himself for certain expenses using the rent that he collected from the other

tenants. The judge found that the Appellant had the right to be paid for other work, but that he had failed to meet the burden of proof. [ 17 ] Regarding the assessment of the credibility of the Respondent, it would be difficult for the Court to intervene given the standard of review on this issue. [ 18 ] Finally, the judge’s findings about the abuse of procedure and harassment as well as the damages awarded are largely discretionary and are subject to a high standard of review.

The moral damages awarded to the Respondent are claimed in the Défense et demande reconventionnelle re-re-modifiée and are not the same thing as any fine that the Appellant may have been condemned to pay. [ 19 ] Since the motion for leave to appeal de bene esse is dismissed, the motion to dismiss the appeal and for the provision of a suretyship and the motion to stay the provisional execution of the judgment are all without object and will be dismissed without legal costs. In the circumstances, it is not appropriate to also declare the appeal abusive.

FOR THESE REASONS, THE COURT: [ 20 ] DISMISSES the modified application for leave to appeal de bene esse , with legal costs; [ 21 ] DISMISSES the motion to dismiss the appeal de bene esse and, subsidiary, for the provision of a suretyship, without legal costs; [ 22 ] DISMISSES the motion to stay the provisional execution of the judgment, without legal costs. MARIE-FRANCE BICH, J.A. STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A.