2017 QCCA 97, 2017 QCCA 97

Friedrich c. Friedrich 2017 QCCA 97 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026474-163 (500-17-053417-096) MINUTES OF THE HEARING DATE: January 23, 2017 CORAM: THE HONOURABLE GUY GAGNON , J.A. GENEVIÈVE MARCOTTE , J.A. PATRICK HEALY , J.A. APPELLANTS COUNSEL MICHAEL FRIEDRICH ASTRID FRIEDRICH Mtre AVERY BARRY COLEMAN RESPONDENT COUNSEL KARL UWE FRIEDRICH Mtre SHARON CITROM (Le Groupe Juridique

W) On appeal from a judgment rendered on September 16, 2016 by the Honourable Justice David R. Collier of the Superior Court, District of Montreal

DESCRIPTION : Re-Amended Application to dismiss an appeal (Article 365 C .C.P .) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 14:16 Commencement of the hearing. Identification of counsel. 14:16 Notice of opposition to amendments by Mtre Coleman. 14:16 Submissions by Mtre Citrom. 14:18 Submissions by Mtre Coleman. Mtre Coleman presents a verbal motion based on

section 51 C.C.P . in order to declare abusive the Motion to dismiss. 14:32 Mtre Coleman asks the Court to consider his Notice of appeal as an Application for leave to appeal. 14:38 Mtre Coleman requests to postpone the hearing. 14:38 Submissions by Mtre Coleman. 14:45 Submissions by Mtre Citrom. 14:55 Reply by Mtre Coleman. 14 h 57 Recess. 15 h 04 Resumption of the hearing 15 h 04 By the Court: judgment – see page 3.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The judgment under appeal defines the modalities of execution of a prior judgment in partition of immoveable property rendered on December 23, 2015. As such, it is a judgment rendered in matters of execution and its appeal is subject to leave by a judge of this Court by virtue of

article 30, paragraph 2 (8) of the Code of Civil Procedure ( C.c.p. ). [ 2 ] Appellants themselves have alleged the application of articles 657 and 659 C.c.p. , as a basis for their Motion for the purchase of properties and their Motion to reject an evaluation and to appoint a new evaluator, which were adjudicated upon in the judgment under attack. These articles are found in Book VIII of the C.c.p. under the heading Execution of Judgments . Under the circumstances the need to obtain leave to appeal can hardly be contested. [ 3 ] Yet at no time to this day has such leave been sought.

This is somewhat surprising since the requirement for leave was raised during a previous hearing held before our colleague Bich, J., on December 13, 2016 and her judgment refers to a potential motion to dismiss based on the absence of leave. [ 4 ] As expected, on December 15, 2016, the Respondent filed a Motion to dismiss the appeal alleging the Appellants’ failure to obtain leave from the Court and seeking to declare the appeal abusive.

On or about January 13, 2017, he filed an Amended Motion to dismiss raising additional arguments in support of the dismissal, including the need to obtain leave to appeal of a judgment containing a declaration of abuse, which he re-amended once again on January 16, 2017. This led the Appellants to file a Notice of opposition to these

amendments and to verbally request a postponement of the hearing should their opposition not be maintained. They stopped short of filing a Motion for leave to appeal of the judgment. Yet, at the hearing, they suggested that the Court simply treat the Notice of appeal as if it were a Motion for leave to appeal of the judgment. [ 5 ] In the absence of a Motion for leave to appeal properly served and submitted for adjudication, the appeal has not been properly initiated and the Court is justified in dismissing the appeal on this basis.

The Court comes to this conclusion even without taking into consideration the paragraphs which were added to the Respondent’s original Motion to dismiss by way of Amended and Re-amended Motions and which alleged the need to obtain leave to appeal of the judgment under

article 30, paragraph 2 (3) C.c.p. in the context of a judgment declaring the Appellants’ proceedings abusive. As a result, the question of postponement has no further relevance and the Appellants’ request for postponement must be dismissed together with their verbal Motion to declare the Respondent’s Motion abusive. [ 6 ] Moreover, even if a Motion for leave to appeal had been properly served and presented, leave to appeal would not have been granted, in light of the issues raised in the Notice of appeal, none of which has to do with questions of principle, new issues or issues of law that would give rise to conflicting judicial decisions, so as to justify granting leave under

article 30 C.c.p. [ 7 ] That being said, and although the Court is justified in dismissing the appeal which was not properly initiated, it will not go so far as to grant the conclusions sought by the Respondent to declare the appeal abusive. FOR THESE REASONS, THE COURT: [ 8 ] DISMISSES the Appellants’ verbal application for postponement; [ 9 ] DISMISSES the Appellants’ opposition to the amendments of the Motion to dismiss the appeal; [ 10 ] DISMISSES the Appellants’ verbal motion based on

section 51 C.C.P . in order to declare abusive the Motion to dismiss the appeal; [ 11 ] GRANTS the Motion to dismiss the appeal, with legal costs; [ 12 ] DISMISSES the appeal, with legal costs; [ 13 ] DISMISSES the Respondent’s application to declare the appeal abusive. GUY GAGNON, J.A. GENEVIÈVE MARCOTTE, J.A. PATRICK HEALY, J.A.