2018 QCCA 2002, 2018 QCCA 2002

Zhou c. National Bank 2018 QCCA 2002 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027929-181 (550-11-015480-164) MINUTES OF THE HEARING DATE: November 26, 2018 THE HONOURABLE STEPHEN W. HAMILTON, J.A. PETITIONER feng qiong zhou PRESENT AND NOT REPRESENTED RESPONDENT national bank ABSENT AND NOT REPRESENTED IMPLEADED PARTY bernier & assOciÉs, syndic de faillite inc. le surintendant des faillites ABSENT AND NOT REPRESENTED DESCRIPTION: Application for leave to appeal from a judgment rendered on October 19, 2018 by the Honourable Pierre Dallaire, of the Superior Court, District of Gatineau. Clerk: Lory Beauregard Courtroom: RC-18

HEARING 9:35 Commencement of the hearing. Identification of the petitioner. Recess of the hearing. 12:30 Resumption of the hearing. Exchanges between the judge and the petitioner. 12:41 BY THE JUDGE : The judgment will be rendered in the course of the day and subsequently emailed to the petitioner. Conclusion of the hearing.

Lory Beauregard, clerk BY THE JUDGE JUDGMENT [ 1 ] The Appellant seeks leave to appeal from a judgment of the Superior Court for the District of Gatineau (Honourable Pierre Dallaire) rendered on October 19, 2018, [1] which dismissed her appeal from the judgment of the Registrar (Mtre Ann-Laure Brouilette) rendered on November 21, 2017 and corrected on January 16, 2018.

The judgment of the Registrar suspended the discharge of the Appellant until December 18, 2019, and made her discharge conditional on her paying $40,000 to her trustee in bankruptcy for the benefit of her creditors. [ 2 ] She has also filed a notice of appeal. [ 3 ] The motion for leave to appeal is based on

Article 31 of the Code of Civil Procedure , which applies to appeals from judgments rendered in the course of a proceeding in matters governed by the Code of Civil Procedure . [ 4 ] The present matter is a bankruptcy matter. Appeals from the judgment of the Registrar to the Superior Cour are governed by

Section 192 of the Bankruptcy and Insolvency Act ( BIA ) and appeals from the Superior Court to the Court of Appeal are governed by

Section 193 BIA , and not by the Code of Civil Procedure . [ 5 ]

Section 193 BIA provides as follows: 193 Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases: (

a) if the point at issue involves future rights; (

b) if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings; (

c) if the property involved in the appeal exceeds in value ten thousand dollars; (

d) from the grant of or refusal to grant a discharge of the aggregate unpaid claims of creditors exceed five hundred dollars; and (

e) in any other case ty leave of a judge of the Court of Appeal. [ 6 ] As the Registrar refused to grant a discharge and the total claims of the creditors exceed $500, the Appellant has a right of appeal under Paragraph 193 (

d) B.I.A. [ 7 ] The motion for leave to appeal will therefore be dismissed without costs because it is not necessary. [2] [ 8 ] However,

Section 31 of the Bankruptcy and Insolvency General Rules provides the following:

(1) An appeal to a court of appeal referred to in subsection 183(2) of the Act must be made by filing a notice of appeal at the office of the registrar of the court appealed from, within 10 days after the day of the order or decision appealed from, or within such further time as a judge of the court of appeal stipulates.

(2) If an appeal is brought under paragraph 193(

e) of the Act, the notice of appeal must include the application for leave to appeal. [ 9 ] The Appellant therefore had 10 days from the date of the Superior Court judgment to file her notice of appeal. The Superior Court judgment is dated October 19, 2018, and the notice of appeal, which was filed on November 15, 2018, is late. I note that the Appellant made the same mistake when she appealed to the Superior Court from the Registrar’s judgment. [ 10 ] Given that the other parties were not present before me today, I have suggested to the Appellant that she make a motion to be relieved of her default.

THEREFORE, THE UNDERSIGNED: [ 11 ] DISMISSES the motion for leave to appeal; [ 12 ] THE WHOLE, without legal costs. stephen w. hamilton, J.A.