2018 QCCA 906, 2018 QCCA 906

Heggtveit c. Estate of Dolan 2018 QCCA 906 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027518-182 (550-17-008376-152) MINUTES OF THE HEARING DATE: June 6, 2018 THE HONOURABLE MARIE ST-PIERRE, J.A.

APPLICANT COUNSEL ELIZABETH NANCY HEGGTVEIT Mtre GÉRARD DESJARDINS (Deveau avocats) RESPONDENTS COUNSEL THE ESTATE OF CHARLES DOLAN MERCY KAREN HEGGTVEIT Mtre MATTHIEU VERNER (Noël et Associés s.e.n.c.r.l.) IMPLEADED PARTY COUNSEL BERNARD HOLDINGS LIMITED Absent DESCRIPTION: Application for leave to appeal from a judgment terminating the proceedings rendered on April 19, 2018 by the Honourable Carole Therrien of the Superior Court, District of Gatineau. (Sect. 30 al. 2, 347 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 9:43 Commencement of the hearing. Submission by Mtre Gérard Desjardins. 10:21 Submission by Mtre Matthieu Verner. 10:38 Rebuttal by Mtre Desjardins. 10:40 Recess. 11:09 Resumption of the hearing. BY THE JUDGE: Judgment dismissing the application with judicial costs – See page 3. 11:12 End of the hearing.

Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] On April 19, 2018, Madam Justice Carole Therrien of the Superior Court ( « the judge ») rendered a judgment on an amended motion of the applicant, dated December 17, 2015, where she acknowledged the existence of an abuse of process by the applicant (paragraphs 47 to 52 of the judgment [1] ) and concluded as follows: WHEREFORE, THE COURT : [53] DISMISSES the introductory motion; [54] GRANTS in part the defence and counterclaim and DECLARES that the Applicant’s right of way to access her property (lot 4 455 520 of the cadastre of Québec) over part of the Defendants’ property (lot 4 455 518 of the cadastre du Québec) is limited to a width of twelve (12) feet or 3.36 metres; [55] ORDERS the applicant to repay 2 000$ of the defendants’ extrajudicial fees, in a 30 days' delay of the present judgment; [56] THE WHOLE with judicial costs. [ 2 ] Applicant is seeking leave to appeal this judgment under

article 30 C.C.P . [ 3 ] To obtain leave to appeal, applicant has the burden to establish that her proposed appeal satisfies the criteria of articles 9, 18 and 30 C.C.P. [ 4 ] She has failed to discharge this burden.

Leave to appeal will not be granted and her motion will be dismissed, with legal costs, for the following three reasons: • First: there is no matter that should be submitted to the Court (article 30 C.C.P.) — no question of principle, no new issue, no question of law giving rise to conflicting decisions and no “injustice intolérable ou flagrante.” [2] • Second: Taking into account the content of the amended motion of the applicant dated December 17, 2015, and of the various exhibits that were produced into the Superior court’s record, all of which are reproduced as schedules to the applicant’s motion to appeal, the proposed appeal has no reasonable chance of success; • Third: finally, and taking into account the conclusion of the first instance judge concerning an abuse of process, dismissing the applicant’s motion is the only reasonable conclusion, in the above mentioned circumstances, having regard to the best interest of justice and the principle of proportionality.

THEREFORE, THE UNDERSIGNED:

[ 5 ] DISMISSES the applicant’s motion for leave to appeal, with legal costs. MARIE ST-PIERRE, J.A.