2017 QCCA 1064, 2017 QCCA 1064

Rachidi c. Société de services MCAP 2017 QCCA 1064 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026612-176, 500-09-026678-177 (505-17-008754-162) MINUTES OF THE HEARING DATE: July 3, 2017 CORAM: THE HONOURABLE manon savard , J.A. geneviève marcotte , J.A. mark schrager , J.A. N o : 500-09-026612-176 APPLICANT ZOHEIR RACHIDI Absent RESPONDENT COUNSEL SOCIÉTÉ DE SERVICES MCAP Mtre ASHLEY KANDESTIN (De Grandpré Chait s.e.n.c.r.l.) N o : 500-09-026678-177 APPELLANT ZOHEIR RACHIDI Absent RESPONDENT COUNSEL

SOCIÉTÉ DE SERVICES MCAP Mtre ASHLEY KANDESTIN (De Grandpré Chait s.e.n.c.r.l.) 500-09-026612-176 Application for leave to appeal from a judgment rendered on January 12, 2017 by the Honourable Justice Kirkland Casgrain of the Superior Court, District of Longueuil 500-09-026678-177 On appeal from a judgment rendered on February 13, 2017 by the Honourable Justice Yves Poirier of the Superior Court, District of Longueuil DESCRIPTION : 500-09-026612-176 Amended application for leave to appeal from a judgment rendered in the course of a proceeding (Article 31 C.C.P .) 500-09-026678-177 Application to dismiss an appeal or for suretyship (Articles 364 and 365 C.C.P .) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING

11:40 Commencement of the hearing. Mr. Zoheir Rachidi is absent although being duly called. 11:40 Submissions by Mtre Kandestin. 11:45 Recess. 11 :55 Resumption of the hearing. 11:55 By the Court: judgment – see page 4. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The motions were postponed on May 29, 2017 at Applicant’s request, in his presence, to allow his new attorney to take cognizance of the file. That attorney has now indicated that he will not represent Applicant. Indeed, he never filed a representation statement in the file.

We note that counsel for Respondent has served a notice on Applicant to appoint a new attorney or file a statement indicating that he will not be represented. The Applicant did not respond within the prescribed delay. In the circumstances and given the absence of Applicant and his counsel today, the Court has proceeded to hear Respondent. [ 2 ] Applicant’s plea to Respondent’s action in forced surrender was declared abusive and dismissed by the Superior Court, District of Longueuil (the Honourable Kirkland Casgrain) on January 12, 2017.

The latter concluded that the defaults of failure to pay: 1) monthly instalments of the hypothecary loans; 2) insurance and 3) property taxes were admitted by the Applicant. [ 3 ] In his motion for leave to appeal, Applicant raises several grounds such as the penalties and interest charged on the loan without indicating with any precision that the judge committed a palpable error in his factual findings of the monetary defaults indicated above. [ 4 ] As such, the appeal does not raise any question which merits the attention of the Court and therefore leave will not be granted. [ 5 ] Applicant also inscribed in appeal from the judgment of the Superior Court, District of Longueuil (the Honourable Yves Poirier) of February 13, 2017 granting the motion for forced surrender and ordering the sale under control of justice of the hypothecated immovable.

Respondent has applied for the dismissal of this appeal. [ 6 ] The appeal has no reasonable chance of success. [ 7 ] Applicant contends that the judge imposed a rate of interest of 25%. He is wrong. The rate applied by the judge is that set out in the loan documents, namely 3,09%. [ 8 ] Applicant also raises that there are improper fees or penalties included in the debt, that the upset price fixed by the judge for the sale of the immovable is improper and that the legal fees charged to the loan account are not due. These are all questions of fact or mixed questions of law and fact.

We are not persuaded that there is any palpable error in the judgment regarding these assertions. [ 9 ] Accordingly, the appeals have no valid basis upon which to proceed. [ 10 ] FOR THESE REASONS, THE COURT: [ 11 ] DISMISSES the amended application for leave to appeal from a judgment rendered in the course of a proceeding of the Superior Court, District of Longueuil, of January 12, 2017 (the Honourable Kirkland Casgrain), with legal costs; [ 12 ] GRANTS the application to dismiss the appeal and DISMISSES the appeal of the judgment of the Superior Court, District of Longueuil (the Honourable Yves Poirier), of February 13, 2017, with legal costs.

MANON SAVARD, J.A.

GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A.