2015 QCCA 1062, 2015 QCCA 1062

Tayar c. Croll 2015 QCCA 1062 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500-09-024508-145 (500-17-060178-103) MINUTES OF THE HEARING DATE : June 16, 2015 CORAM: THE HONOURABLE paul vézina , J.A. manon savard , J.A. mark schrager , J.A. APPELLANT COUNSEL SAM TAYAR M tre LEON J. GREENBERG (Sternthal, Katznelson, Montigny sencrl) RESPONDENT COUNSEL SHIRLEY CROLL Mtre CHARLES GELBER (Overland Gelber) On appeal from a judgment rendered on May 14, 2014 by the Honourable Justice Gary D.D. Morrison of the Superior Court District of Montreal.

NATURE OF THE APPEAL: Transaction – annulment – consent – prescription Clerk: Asma Berrak Courtroom: Pierre-Basile-Mignault HEARING 9:32 Commencement of the hearing. Identification of counsel. Comments by Justice Vézina. Submission by Mtre Greenberg. 10:36 Suspension of the hearing. 10:45 Resumption of the hearing. Comments by Justice Vézina. BY THE COURT: Unanimous judgment-see page 3. 10:46 Conclusion of the hearing. Asma Berrak Clerk BY THE COURT JUDGMENT [ 1 ] This is an appeal from the judgment of the Superior Court, District of Montreal (the Honourable Gary D.D.

Morrison) condemning Appellant to pay Respondent the sum of $545,976.57 with interest and costs. [ 2 ] The judge found as a matter of fact that Appellant in the course of managing Respondent’s funds held in two accounts at Bank Hapoalim, Zurich, Switzerland, removed an aggregate of $545,976.57 from those accounts without proper authorization and unlawfully appropriated such funds. Appellant’s explanations were analyzed by the judge and his testimony was deemed to lack credibility.

No palpable error of these findings of fact and credibility has been demonstrated to us by Appellant. [ 3 ] Appellant’s plea of prescription was dismissed by the judge, who, relying on

Article 2904 C.C.Q. concluded that because Respondent only became aware of the misappropriation of her funds in 2010, it was impossible for her to have acted sooner. When a creditor’s ignorance of the facts giving rise to a claim is due to the fault of the adverse party, the starting point of prescription is suspended. [1] The determination that Respondent only became aware of Appellant’s fraud in 2010 is a finding of fact.

No palpable error of fact or error of law has been made out to undermine the judge’s conclusion on the prescription argument. [ 4 ] On October 15, 2009, Respondent and her son signed a release in favour of Appellant, the relevant portions of which read as follows: WHEREAS Alan Croll (“Alan”) sold a property located in the Parish of Westmoreland, Jamaica; WHEREAS pursuant to such sale, Alan was credited with net proceeds of US $407,383.79 (the “Funds”) , which he transferred to Laser Consultants International Inc.; WHEREAS both Sam Tayar (“Sam”) and Laser Consultants Int. have agreed that an amount equal to the Funds shall be returned to

Alan’s attorney in Jamaica, Silvera & Co.; WHEREAS in consideration for the return of the Funds, Alan and his mother Shirley Croll (the “Croll Releasees”) on the one hand, and Laser Consultants Int., and Sam (together with each of its and his affiliates, the “Laser Releasees”), on the other hand, wish to release one another from any liability relating to the Funds and otherwise , the whole pursuant to the terms and conditions set out herein. THEREFORE : The Croll Releasees, on the one hand, and the Laser Releasees, on the other hand, do hereby grant to one another a full and final release and forever acquit and discharge one another of and from (

i) all claims, actions, causes of action, suits, proceedings and demands of whatsoever nature, character or kind which the Croll Releasees , on the one hand, and the Laser Releasees, on the other hand, had, now has or hereafter can, shall or may have against one another which relate to the Funds and otherwise , (ii) all liabilities, contingent or otherwise, dues, debts, damages, sums of money, advantages and accounts of whatsoever nature, character or kind which were, are now or hereafter can, shall or may be owing by the Laser Releasees, on the one hand, and the Croll Releasees, on the other hand, to one another, and which relate to the Funds and otherwise; and (iii) all undertakings, covenants and obligations owed by the Laser Releasees, on the one hand, and the Croll Releasees, on the other hand, to one another, of whatsoever nature, character or kind, which have existed, now exist or hereafter an, shall or may exist which in any way relate to the Funds and otherwise; it being agreed that this release shall only become valid and binding on the date that Alan or his attorneys, Silvera & Co. receive the Funds (it being agreed that the Croll Releasees shall notify Sam on the day that such Funds are received by Alan or his attorneys, Silvera & Co.).

Additionally, notwithstanding the foregoing, the parties hereby agree that this release shall not apply to any rights, obligations or covenants of the parties (if any) which relate in any way to Assara.

The Croll Releasees, on the one hand, and the Laser Releasees, on the other hand, agree not to join, assist, aid or act in concert in any manner whatsoever with any other person in the making of any claim or demand or in the bringing of any suit, proceeding or action in any manner whatsoever against one another and not to make any claim or demand nor bring any suit, proceeding or action in any manner whatsoever against any person who might claim contribution or indemnity form one another, in respect of or in connection with any of the matters hereby released and discharged. […] [Emphasis added.] [ 5 ] Appellant argues that the words “and otherwise” were to be given the broad meaning intended that all recourses by Respondent against him were released.

The judge concluded that the release was a nullity because Respondent’s consent was vitiated by the fear that her son’s money from the sale of his property in Jamaica and under Appellant’s control would not be returned unless the release was signed. [ 6 ] Without confirming the judge’s conclusion that the release was a nullity, we are of the opinion that the release even if valid, does not constitute a defence for Appellant. As stated above, the judge found as a fact that Respondent was unaware of Appellant’s fraud in 2009 when the release was signed.

On the facts determined by the judge, Respondent signed the release so that the $407,383.79 US referred to therein would be returned by Appellant. This sum was comprised of the balance of funds in her accounts ($147,000) and the balance of proceeds from the sale of her son’s house in Jamaica. Again, Respondent did not know that $545,976.57 had been misappropriated over the years by Appellant.

Whatever the reference to “and otherwise” might add to the scope of the release, Respondent could not release Appellant from his fraud of which she was unaware because of the latter’s fault. [ 7 ] In effect and explicitly in the last paragraph of the release quoted above, Respondent renounced to any recourse against Appellant. As a matter of law, this renunciation could not exclude a recourse arising from Appellant’s “intentional or gross fault” as provided in

Article 1474 C.C.Q. : 1474. A person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault; a gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence. He may not in any way exclude or limit his liability for bodily or moral injury caused to another. 1474. Une personne ne peut exclure ou limiter sa responsabilité pour le préjudice matériel causé à autrui par une faute intentionnelle ou une faute lourde; la faute lourde est celle qui dénote une insouciance, une imprudence ou une négligence grossières.

Elle ne peut aucunement exclure ou limiter sa responsabilité pour le préjudice corporel ou moral causé à autrui. Even if there is a theoretical difference between a renunciation of recourse and a waiver of liability, the effect in this case is the same given

Article 1474 C.C.Q. [2] In the above document as a matter of law, the release could not be broader than the renunciation. [ 8 ] Accordingly, properly interpreted in fact and in law, the release document did not relieve Appellant from the consequences of the fraud. FOR ALL OF THE FOREGOING REASONS, THE COURT : [ 9 ] DISMISSES the appeal, with costs.

paul vézina, J.A. manon savard, J.A. mark schrager, J.A.