2021 QCCA 464, 2021 QCCA 464

H.A. c. Eid 2021 QCCA 464 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029197-209 ( 500-17-103146-182 ) MINUTES OF HEARING DATE: March 18, 2021 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. SUZANNE GAGNÉ, J.A. LUCIE FOURNIER, J.A. APPLICANTS H. A. S. A. L. A. unrepresented Absent RESPONDENT COUNSEL NASSIB EID Mtre LUC SÉGUIN ( Fonds d'assurance responsabilité professionnelle) Absent On appeal from a judgment rendered orally on October 6 and revised on October 30, 2020 by the Honourable Thomas M. Davis of the Superior Court , District of Montreal .

DESCRIPTION: Application to dismiss an appeal (Article 365 C.C.P. ). Application for leave to appeal (Article 31 C.C.P .). Clerk at the hearing : Mélahelle Sicotte Courtroom: Pierre-Basile-Mignault HEARING

9:30 Continuation of the hearing held on March 15, 2021. The parties were excused from appearing in Court. BY THE COURT : Judgment – see page 3. Conclusion of the hearing. Mélahelle Sicotte, Clerk at the hearing JUDGMENT [ 1 ] The appellants appeal from a judgment rendered on October 6, 2020 by the Superior Court, Civil Division, District of Montreal (the Honourable Mr. Justice Thomas M. Davis), which dismissed their action, declared it abusive and reserved the respondent’s right to claim damages resulting from such abuse. [ 2 ] The respondent, Mtre Nassib Eid, was the attorney representing the spouse of A.

A. (“A.”) in their divorce proceedings. In an attempt to execute the judgments rendered in favour of his client, the respondent initiated proceedings for simulation in relation to the acquisition of an immovable by A.’s sister, appellant H. A. (“H.”). The hypothecary loan, which entered into force at the time of the purchase was signed not only by her, but also by A. as “co-borrower non-owner”. A few years later, H. transferred a two-thirds undivided interest in the immovable to her parents, appellants S. and L.

A.. [ 3 ] The evidence revealed that S., L., H. and A. have lived in the immovable since then. [ 4 ] On November 5, 2015, Jean-Pierre Chrétien, J.S.C. dismissed the application for simulation and quashed the seizure before judgment that had been carried out by the respondent on behalf of A.’s former spouse. He dismissed however A.’s application to declare the simulation proceedings abusive as well as his claim for fees.

This Court subsequently dismissed the appeal from the judgment of Chrétien, J.S.C. and A.’s application to have the proceedings declared abusive and to obtain $30,000 in damages. [ 5 ] The trial judge reviewed the judgments rendered in A.’s divorce case. He noted that the judges who heard the testimony of the appellants and A., gave them little credibility.

He then concluded that the appellants had failed to prove the respondent attorney’s fault of the respondent. [ 6 ] In their notice of appeal, the appellants argue: ➢ that the judge erred by failing to inform them that he was summarily finding that there was abuse of procedure and to offer them the opportunity to rebut the presumption, contrary to art. 52 C.C.P. ; ➢ that the judge erred by reserving the respondent’s right to claim damages from the appellants, following the declaration of abuse of procedure; ➢ that the judge erred by failing to give sufficient reasons in his judgment; ➢ that they did not have a fair trial, primarily because they were not represented by counsel and the respondent presented his arguments in French. [ 7 ] In his motion to dismiss the appeal pursuant to art. 365 C.C.P. , the respondent argues that the appeal was improperly initiated in that the appellants did not obtain prior leave to appeal, in accordance with art. 30, para. 2 C.C.P. , given the dismissal of the action because of its abusive nature pursuant to arts. 51 and following C.C.P.

He also submits that the appeal has no reasonable chance of success and that this justifies its dismissal. [ 8 ] To obtain leave to appeal from a judgment dismissing a judicial application because of its abusive nature, the applicant must establish that the matter at issue is one that should be submitted to the Court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions pursuant to article, 30, para. 3 C.C.P. [1] Moreover, the application for leave must be filed within 30 days of the judgment in question. [2] [ 9 ] Although the motion to dismiss the appeal is dated November 16, 2020 and the judgment in question was rendered on October 6, 2020, the application for leave to appeal was only filed on February 25, 2021. [ 10 ] To explain their tardiness, appellants H. and S. allege the death of appellant L. on December 17, 2020 as a result of COVID-19, at which time the latter was in touch with a lawyer who allegedly failed to file the application for leave to appeal pursuant to

article 30 C.C.P. They add that they contacted the respondent in order to conclude at an out-of-court settlement in early 2021, but were

unsuccessful. [ 11 ] It is worth noting that the application for leave to appeal is supported by the affidavit of H. only, without an affidavit from S. and that no notice of change of status or continuance of proceedings was filed despite the death of appellant L.. [ 12 ] That being said, the grounds invoked to explain this late filing are incomplete do not demonstrate that it was impossible for them to act within the prescribed time limit [3] . [ 13 ] Moreover, the appellants fail to raise issues that should be submitted to the Court so as to enable them to satisfy the criteria of

article 30 C.C.P. or that they have a reasonable chance of success in appeal [4] . [ 14 ] Contrary to their position, the judgment provides sufficient reasons to support of the judge’s declaration of abuse of procedure. [ 15 ] In addition, the appellants were well aware of the respondent’s motion to declare their application abusive, which was introduced as early as June 2019 and was referred to the judge sitting on the merits of the case.

The judge did not have any additional duty to forewarn them of his intention to grant the motion that he was tasked to adjudicate. [ 16 ] Lastly, the appellants chose not to be represented by counsel throughout the hearing. They cannot invoke their self-representation as a basis to claim that they had an unfair trial. They fail to demonstrate in any event that they would have been treated unfairly as a result. [ 17 ] Under the circumstances, there is simply no basis to grant the application for leave to appeal.

FOR THESE REASONS, THE COURT: [ 18 ] DISMISSES the application for leave to appeal; [ 19 ] DECLARES the application to dismiss the appeal moot; [ 20 ] With legal costs. GENEVIÈVE MARCOTTE, J.A. SUZANNE GAGNÉ, J.A. LUCIE FOURNIER, J.A.