2019 QCCA 1436, 2019 QCCA 1436

Heath c. Bourret (Estate of Veyrat) 2019 QCCA 1436 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028492-197 ( 500-17-107223-193 ) MINUTES OF THE HEARING DATE: August 29, 2019 THE HONOURABLE MANON SAVARD, J.A.

APPLICANT COUNSEL Donald Heath Mtre MAO CHAMBERS Mtre Lillian Kliger ( Me Lillian Kliger ) Absent RESPONDENTS COUNSEL André Bourret in his capacity as liquidator of the estate of Marie Bernadette Veyrat Tony Mastrogiovanni in his capacity as liquidator of the estate of Marie Bernadette Veyrat Mtre Alain Mongeau ( Alain Mongeau, Avocats ) On appeal from a judgment rendered on June 21, 2019 by the Honourable Benoît Emery of the Superior Court , District of Montreal . DESCRIPTION: Application for a stay of execution (Art. 660 C.C.P. )

Clerk at the hearing : Annabel David-Boudrias Courtroom: RC-18 HEARING 11: 18 Continuation of the hearing of August 20, 2019. The parties are present. Discussion between the judge and the parties. BY THE JUDGE : judgment – see page 4. End of the hearing. Annabel David-Boudrias, Clerk at the hearing

JUDGMENT [ 1 ] On August 1, 2019, the Applicant filed a notice of appeal with the office of the Court against the decision of the Superior Court rendered by default on June 21, 2019. [ 2 ] On the same day, the Applicant filed an application for a stay of execution under articles 660 and 661 C.C.P. [ 3 ] At the hearing before me on this motion, the Respondent argued that the appeal had not been properly filed, given the fact that the 30 day limit had not been respected. According to

article 360 C.C.P. , the notice of appeal should have been filed within 30 days after June 21, 2019, since the judgment “was rendered at the hearing”. He also informed me of his intention to file an application for dismissal of an appeal on the basis that it had been improperly initiated (art. 365 C.C.P. ). [ 4 ] The Applicant, on the other hand, argued that the appeal had been filed within the time limit given that no notice of judgment had yet been notified to the parties. He submitted that such a notice was required in virtue of

article 335 C.C.P. since the judgment under appeal is “a judgment other than a judgment rendered at the hearing in the presence of the parties ” (emphasis added). However, in order to protect his rights, he also informed me of his intention to present an application de bene esse to extend the expiry of the time limit fixed for instituting an appeal (art. 363 C.C.P. ). [ 5 ] In these circumstances, it appears more prudent to refer the application for the stay of execution to the panel of the Court that will hear the parties’ applications related to the question as to whether the judgment in question is in fact under appeal before the Court.

FOR THESE REASONS, THE UNDERSIGNED: [ 6 ] REFERS the Application for stay of execution to the panel of the Court that will hear the Application de bene esse to extend the expiration of the time fixed for instituting an appeal and the Application to dismiss an appeal on September 20, 2019 in room Pierre- Basile-Mignault at 9:30 a.m. ; [ 7 ] THE WHOLE with legal costs to follow. MANON SAVARD, J.A.