2022 QCCA 645, 2022 QCCA 645

Mazzaferro c. Raymond Chabot inc. 2022 QCCA 645 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029851-219 ( 500-11-060028-210 ) MINUTES OF HEARING DATE: May 2, 2022 CORAM: THE HONOURABLE JULIE DUTIL, J.A. PATRICK HEALY, J.A. SUZANNE GAGNÉ, J.A. APPELLANT COUNSEL MICHAEL MAZZAFERRO Mtre NINA V. FERNANDEZ ( FNC ) By videoconference RESPONDENT COUNSEL RAYMOND CHABOT INC.

Mtre ALAIN RIENDEAU Mtre ÉLIANE DUPÉRÉ-TREMBLAY ( Fasken Martineau DuMoulin ) By videoconference On appeal from a judgment rendered on November 24, 2021 by the Honourable Martin Castonguay of the Superior Court , District of Montreal . DESCRIPTION: Application to dismiss an appeal (Article 365 C.C.P .) Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 9:30 Commencement of the hearing. Identification of counsel. 9:30 Submissions by Mtre Riendeau 9:38 Submissions by Mtre Fernandez. 9:51 Reply by Mtre Riendeau.

9:54 Recess of the hearing. 10:08 Resumption of the hearing. 10:08 By the Court: judgment – see page 3. Robert Osadchuck, Clerk at the hearing JUDGMENT [ 1 ] The Court is seized of a motion to dismiss the appeal against a judgment of the Superior Court [1] that rejected Mr. Mazzaferro’s originating application for a suit in damages against Raymond Chabot inc . («RC») on the basis of an exception to dismiss under

section 215 of the Bankruptcy and Insolvency Act (“ BIA ”) and

article 168 C.C.P. [ 2 ] The Superior Court granted the exception to dismiss because Mr. Mazzaferro did not obtain leave to initiate the suit against RC. The judge also concluded that the originating application was frivolous and groundless. As a result, the Superior Court concluded that leave would not have been granted under

section 215 BIA because the proposed action was bound to fail. [ 3 ] RC submits that the appeal should be dismissed for two reasons. [ 4 ] First, the appeal was irregularly formed because the right of appeal against a decision based on

section 215 BIA must comply with sections 193(

e) of the Act and 31(1) of the Bankruptcy and Insolvency General Rules . According to these provisions, a notice of appeal must be filed within ten days of the judgment and if based upon

section 193(

e) it must be accompanied by an application for leave. In this case the notice was not filed within the prescribed delay and was not accompanied by an application for leave. [ 5 ] Second, RC submits that the appeal should be dismissed because it, like the action proposed in the originating application, has no reasonable chance of success. The Superior Court reviewed the allegations of negligence or fraud advanced by Mr. Mazzaferro and concluded that the originating application is frivolous and groundless because it discloses no factual basis of a plausible cause of action against RC.

Accordingly, RC submits that Mr. Mazzaferro seeks only to rehearse in appeal the implausible allegations that were asserted by him and dismissed in the Superior Court. [ 6 ] The Court concludes that the motion to dismiss the appeal should be granted. RC rightly claims that the Notice of Appeal fails to identify a reversible error in the judgment of the Superior Court. There is no error, let alone a palpable and overriding error. [ 7 ] At the last minute, in his modified Notice of Appeal, M.

Mazzaferro also seeks leave to appeal, even if he submits that it is not required, and he does not give any explanation of the reasons why he did not seek leave to appeal within the delay prescribed. Leave to appeal should not have been sought in a notice to appeal and should have provided an explanation of the reasons why he did not seek leave in the delay prescribed. But even if Mr. Mazzaferro had presented a motion with an explanation of the delay, the Court would have refused leave because the appeal has no reasonable chance of success.

FOR THESE REASONS THE COURT : [ 8 ] GRANTS the present motion to dismiss, with the costs of justice; [ 9 ] DISMISSES the appeal, with the costs of justice. JULIE DUTIL, J.A. PATRICK HEALY, J.A.

SUZANNE GAGNÉ, J.A.