2012 QCCA 1274, 2012 QCCA 1274

Farley (Estate of) c. Bank of Montreal 2012 QCCA 1274 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022312-128 ( 500-17-067023-112 ) MINUTES OF THE HEARING DATE: July 5, 2012 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. MARIE ST-PIERRE, J.A. APPELLANT ATTORNEY ESTATE OF THE LATE JOAN FARLEY, attention of Mark Farley/Linda Farley M. Mark Farley RESPONDENT ATTORNEY BANK OF MONTREAL Mtre Karine Lacombe-Joseph TREMBLAY AVOCATS INC. Notice of the Appellant to extend the delay to file the appeal factum. Motion for permission to file indispensible and new evidence. Clerk: Marcelle Desmarais Courtroom: Pierre-Basile-Mignault

HEARING 11 h 34 Beginning of the hearing. 11 h 36 Representations by M. Mark Farley on the motion for new evidence. 11 h 43 Representations by M. Mark Farley on the motion to extend the delay to file the appeal factum. 11 h 47 Representations by Mtre Karine Lacombe-Joseph. 11 h 53 Reply by M. Mark Farley. 11 h 57 Ends of arguments. 11 h 57 Suspension. 12 h 04 Resumption. BY THE COURT: Judgment –see page 3.

Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] The appellant brings two motions before the Court: the first, to adduce new evidence; and, the second, to obtain an extension of the time allowed to file its factum in the Office of the Court. I New Evidence [ 2 ] The appellant seeks permission to adduce new evidence pursuant to

article 509, para. 2 C.C.P., specifically evidence from Mr. Elias Bakakis, an employee of the respondent, as well as "the contents of the file documenting the dealings between the Appellant and the Respondent". [ 3 ] In sum, he contends that Mr. Bakakis undertook to stop payments of capital and interest on the relevant hypothecary loan while a sale of the immovable was pending, and that this evidence is indispensable as a means of showing that the Clerk of the Superior Court overstated the amount of the debt in paragraph [10] of his reasons. [ 4 ] Does the motion to adduce new evidence meet the recognized criteria under

article 509 C.C.P.? [ 5 ] In order to be allowed to adduce new evidence, a party must establish that the evidence is new, that it is indispensable, that the circumstances are exceptional, that the interests of justice requires the new evidence to be considered on appeal and, finally, that the evidence is susceptible of bringing about a different result. [1] [ 6 ] The appellant has failed to show that the evidence has the quality of newness required for its motion to succeed. [ 7 ] In the appellant's motion and in the attending affidavit presented by Mark Farley, representative of the appellant, it is stated that

the appellant informed counsel for the respondent, prior to the hearing before the Clerk of the Superior Court, that Mr. Bakakis had agreed to stop payments on the hypothecary loan. In other words, the appellant was aware of the existence of the evidence prior to the hearing in first instance and did not take steps to present that evidence in a timely fashion. [ 8 ] Mr. Farley states that counsel for the respondent had undertaken that Mr. Bakakis would be called as a witness at the hearing.

Be that as it may, the appellant took no measures to ensure that the evidence would be filed in the court record. [ 9 ] The appellant did not appear on the date of the hearing and judgment was rendered against the appellant by default. [ 10 ] The appellant contends that these are exceptional circumstances that justify granting permission to adduce the new evidence. The Court disagrees. It would appear instead that the appellant was not diligent in preparing its case and that this existing evidence – which, it may be said, is disputed by the respondent – cannot now be brought forward on appeal.

II Motion to extend time to produce appellant's factum [ 11 ] The appellant applies for an extension of time pursuant to

article 503.1 C.C.P. The Deputy Clerk of the Court had previously granted an extension of the time allowed to file the appellant's factum to May 25, 2012. [ 12 ] The motion is contested. [ 13 ] The appellant asks that the date be fixed at August 10, 2012, which is beyond the 30-day period identified in

article 503.1 C.C.P. [ 14 ] While this is a second application for an extension, the Court will nevertheless grant an extension given the delays that are in part attributable to the administration of his appeal. That said, the appellant has not shown exceptional circumstances justifying an extension for a period of over 30 days. August 6, 2012 is fixed as the date on which the appellant's factum must, peremptorily, be served and filed in the Office of the Court.

FOR THESE REASONS , the Court: [ 15 ] DISMISSES the motion to adduce new evidence, with costs; [ 16 ] GRANTS the motion to extend the time allowed to serve and file appellant's factum, peremptorily, until August 6, 2012, with costs against the appellant. NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. MARIE ST-PIERRE, J.A.