2022 QCCA 1054, 2022 QCCA 1054

Succession de S.R. 2022 QCCA 1054 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030075-220 ( 500-17-096359-164 ) MINUTES OF HEARING DATE: August 2, 2022 CORAM: THE HONOURABLE BENOÎT MOORE, J.A. GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A. IN THE MATTER OF THE ESTATE THE LATE S. R. APPELLANT COUNSEL M. R. Mtre Jean-Faustin BadImboli- ATIBASAY ( DJB Lawyers ) Absent RESPONDENTS COUNSEL Ro. RA., in his capacity as liquidator of the estate of the late S. R. M tre Krystyn Pietras ( Stein & Stein ) By videoconference Mtre Nicholas Chine ( Stein & Stein ) Absent IMPLEADED PARTIES

H. F., in her capacity as liquidator of the estate of the late R3. Fr. L. F., in his capacity as liquidator of the estate of the late R3. Fr. ABSENT AND UNREPRESENTED DESCRIPTION: Application for the dismissal of an appeal or alternatively, for the provision of a suretyship (Articles 364 and 365 CCP ). Application de bene esse for leave to appeal a judgement after the expiry of the time limit for appeal (Articles 30 para. 2, 31, 357 and 363 CCP ). Application to suspend the appeal proceedings (Articles 49, 377 and 378 CCP ).

Clerk at the hearing : Ariane Simard-Trudel Courtroom: Pierre-Basile-Mignault HEARING 9:33 Commencement of the hearing. Continuation of the hearing held on August 1 st , 2022. The parties were excused from appearing in Court. BY THE COURT : Judgment – see page 4. Conclusion of the hearing. Ariane Simard-Trudel, Clerk at the hearing JUDGMENT [ 1 ] Appellant presents a de bene esse application for leave to appeal after the expiry of the time limit together with an application to suspend the appeal proceedings.

Respondent counters with an application to dismiss in which he claims leave is necessary and that none of the criteria have been met. Alternatively, Respondent asks that Appellant be ordered to furnish suretyship pending appeal proceedings. [ 2 ] The parties are involved in an inheritance saga over a 25% interest in a commercial building. The judgment under appeal dismissed Appellant’s second attempt at obtaining the revocation of a judgment rendered more than six months prior, which declared Respondent owner of that 25% interest.

It also declared Appellant’s proceedings abusive and condemned her to pay costs and legal fees as well as punitive damages, whose amount was to be established subsequently through written submissions. [ 3 ] The reasons provided by the trial judge to dismiss Appellant’s application for revocation speak for themselves. In short, he

found that it had not been impossible, in fact, for Appellant to discover sooner the Declaration of Trust she claims to have so discovered in July 2020 and which allegedly would prove her ownership of the building in dispute. The judge added that he could not leave unsanctioned the behaviour of Appellant who, he considered, “tried to cheat her way to victory”.

These factual findings were in large part based on the judge’s assessment of Appellant’s testimony and that of the depositing notary, as well as on a review of the juridical facts contained in a number of previous judgments involving the parties. [ 4 ] Despite Appellant’s claim to the contrary, the present appeal is subject to leave under

article 30, para. 2(3) CCP as well as

article 31 CCP since the judge condemns Appellant to pay damages because of her abuse, of which the quantum is to be established at a later date, following proper representations. It cannot be clearer from the judge’s reasons and conclusions that Appellant’s application for revocation was dismissed if not solely, at least in part because of its abusive nature [1] . Given that the application for leave is past the time limit, it is also governed by

article 363 CCP. [ 5 ] Accordingly, and even presuming it was in fact impossible for Appellant to “act earlier” within the meaning of

article 363, para. 2 CCP , the Court is of the view that the proposed appeal has no reasonable chance of success as it fails to show any sign of apparent weakness in the judgment. In particular, the judge made no reviewable error in analyzing the situation through the lens of

article 84 CCP , especially since not only was Appellant’s second application for revocation presented outside the strict six-month time limit provided for by

article 347 CCP , but so was her first one which had previously been dismissed for failure to furnish suretyship. Most if not all other proposed grounds of appeal relate to credibility and invite this Court to retry the case. Not only is this not the Court’s role on appeal, but it is even less so in a case where the outcome of the matter hinged heavily on factual findings and credibility assessments.

FOR THESE REASONS, THE COURT: [ 6 ] DISMISSES Appellant’s Application de bene esse for leave to appeal a judgment after the expiry of the time limit for appeal , with legal costs; [ 7 ] DISMISSES Appellant’s Application to suspend the appeal proceedings , which is moot, with legal costs; [ 8 ] DISMISSES Respondent’s Application for the dismissal of an appeal or alternatively, for the provision of a suretyship , which is moot, without legal costs. BENOÎT MOORE, J.A. GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A.