2022 QCCA 122, 2022 QCCA 122

O'Connor c. Giancristofaro 2022 QCCA 122 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029766-219 , 500-09-029576-212 ( 500-17-115061-205) (500-11-056049-196) MINUTES OF THE HEARING DATE: January 28, 2022 CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.C.A. BENOÎT MOORE, J.C.A. FRÉDÉRIC BACHAND, J.C.A. No: 500-09-029766-219 (500-17-115061-205) APPELLANT DANIEL F. O’CONNOR PRESENT AND UNREPRESENTED By videoconference RESPONDENTS EZIO GIANCRISTOFARO BRANISLAVA MALOBABIC PRESENT AND UNREPRESENTED By videoconference IMPLEADED PARTY PUBLICATION OFFICER FOR THE LAND REGISTRY OFFICE OF MONTREAL ABSENT AND UNREPRESENTED No: 500-09-029576-212 (500-11-056049-196) APPELLANT

DANIEL F. O’CONNOR PRESENT AND UNREPRESENTED By videoconference RESPONDENTS EZIO GIANCRISTOFARO BRANISLAVA MALOBABIC PRESENT AND UNREPRESENTED By videoconference IMPLEADED PARTY PUBLICATION OFFICER FOR THE LAND REGISTRY OFFICE OF MONTREAL ABSENT AND UNREPRESENTED 500-09-029766-219 On appeal from a judgment rendered on November 1 st , 2021 by the Honourable Thomas M. Davis of the Superior Court , District of Montreal . 500-09-029576-212 On appeal from a judgment rendered on May 31, 2021 by the Honourable Thomas M. Davis of the Superior Court, District of Montreal.

DESCRIPTION: 500-09-029766-219 Application to dismiss an appeal (Article 365 C.C.P. ). 500-09-029576-212 Application to correct the errors and omissions in the judgment of October 22, 2021 and to remedy denial of Respondents’ rights (Articles 9, 17, 49, 201-202 and 338 C.C.P. ) ( Canadian Charter of Rights and Freedoms ). Clerk at the hearing : Anne Dumont Courtroom: Pierre-Basile-Mignault HEARING 9:29 Commencement of the hearing. Continuation of the hearing held on January 24, 2022. The parties were excused from appearing in Court. BY THE COURT : Judgment – see page 4. Conclusion of the hearing.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] The Court is seized of three applications, which represent new chapters in a saga between the parties that has already given rise to a formidable number of trial judgments and judgments of this Court. [ 2 ] The first two applications pertain to a judgment rendered on November 6, 2021 by the Superior Court, District of Montreal (the Honourable Mr. Justice Thomas M. Davis), [1] which granted the application of respondent Ezio Giancristofaro for the cancellation of the legal hypothec registered against his immovable by appellant Daniel F.

O’Connor for the purpose of executing a judgment obtained against respondent Branislava Malobabic. [ 3 ] The trial judge, noting that respondent Giancristofaro is the sole owner of the immovable and that the appellant’s Paulian action —seeking to have the deed transferring the immovable from respondent Malobabic to respondent Giancristofaro declared unopposable to him—had been dismissed, [2] found that the appellant was not entitled to register a hypothec against it. [ 4 ] The appellant filed a notice of appeal, which the respondents now ask this Court to dismiss both because the appeal requires leave under article 30(8) of the Code of Civil Procedure and because it is doomed to fail. [ 5 ] Regardless of whether or not leave is required, the appeal is doomed to fail and the application to dismiss must be granted.

This is not the appeal of the judgment on the Paulian action, which is still continuing, but rather an appeal of the judgment pertaining to the registration—on the basis of the Paulian action—of the hypothec against the home of respondent Giancristofaro, who is not the appellant’s debtor.

By analogy with the ruling in Janytska , [3] the hypothec in the present case was, at best, premature and the judge was right to order its cancellation. [ 6 ] In the third application, the respondents ask that we correct the judgment of this Court dated October 22, 2021, [4] which dismissed their application to dismiss the appeal of the May 31, 2021 Judgment Under Appeal. Notwithstanding its title, this application is, in reality, an attempt to appeal a judgment of this Court. Consequently, it must be dismissed.

FOR THESE REASONS, THE COURT: [ 7 ] GRANTS the Application to Dismiss the Appeal of a judgment of the Superior Court rendered on November 1, 2021 in file 500- 17-115061-205, with legal costs; [ 8 ] DISMISSES the appeal of a judgment of the Superior Court rendered on November 1, 2021 in file 500-17-115061-205, with legal costs; [ 9 ] DISMISSES the Application to Correct the Errors and Omissions in the Judgement of October 22, 2021 and to Remedy Denial of Respondents’ Rights in file 500-09-029576-212, with legal costs. JACQUES J. LEVESQUE, J.C.A. BENOÎT MOORE, J.C.A. FRÉDÉRIC BACHAND, J.C.A.