2011 QCCA 209, 2011 QCCA 209

Werbin c. Werbin 2011 QCCA 209 COURT OF APPEAL CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-09-021389-119 ( 500-17-040448-071 ) MINUTES OF THE HEARING DATE: February 4, 2011 THE HONOURABLE JACQUES CHAMBERLAND, J.A. PETITIONER ATTORNEY MORRIS WERBIN Mtre Gordon M. Selig RESPONDENT ATTORNEY KENNETH WERBIN Mtre Papa-Mike Diomande MIS EN CAUSE ATTORNEY TD CANADA TRUST BANK CIBC WOOD GUNDY

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON JANUARY 20, 2011 BY THE HON. KEVIN DOWNS OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 11:20 Commencement of the hearing. Submission by Mtre Selig. 11:45 Submission by Mtre Diomande. 12:06 Reply by Mtre Selig. 12:11 Suspension. 12:15 Resumption of the hearing. BY THE JUDGE. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] This is a rather exceptional case, with rather exceptional circumstances, involving a dispute between a father and his son as to the ownership of the funds which were seized before judgment in the hands of the mis en cause in late December 2007. I am told that the case will be heard on the merit in November 2011.

Given the exceptional nature of the case at hand, I am of the view that the matter at issue here is one which ought to be submitted to the Court of Appeal (article 26 C.C.P. ). [ 2 ] Given that there should be case management of the appeal; [ 3 ] Given rules 54 and 55 of the Rules of the Court of Appeal in Civil Matters , which reads as follows:

54. Abandonment . Where the appellant’s argument and documents standing in lieu of appellant's factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandi . 55. Foreclosure . Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedur e shall apply, mutatis mutand i. [ 4 ] THEREFORE, THE UNDERSIGNED: [ 5 ] MAINTAINS the Motion for leave to appeal; [ 6 ] GRANTS the Appellant leave to appeal the judgment by Downs J. rendered on the bench on January 20, 2011; [ 7 ] ORDERS the Appellant, after having served a copy upon the Respondent, to file in the office of the Court, no later than May 4, 2011 , four copies of a written argument not exceeding 15 pages , of the documents that would normally have made up schedules I, II and III of his/her/its/their factum and of his/her/its/their authorities; [ 8 ] ORDERS the Respondent, after having served a copy upon the Appellant, to file in the office of the Court, no later than June 10, 2011 , four copies of a written argument not exceeding 15 pages , of his/her/its/their supplementary documents, and of his/her/its/their authorities; [ 9 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12-point type, with no more than 12 characters per 2.5 cm; [ 10 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 11 ] DEFERS the file to the Master of the rolls to determine the date of a 60 minutes hearing; [ 12 ] Cost to follow.

JACQUES CHAMBERLAND, J.A.