2016 QCCA 1311, 2016 QCCA 1311

Lichtman c. Royal Bank of Canada 2016 QCCA 1311 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026052-167 (500-17-086825-158) MINUTES OF THE HEARING DATE: August 10, 2016 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER ATTORNEY JOAN LICHTMAN PERSONALLY RESPONDENT ATTORNEY ROYAL BANK OF CANADA Mtre MARY-PIER MARCHETERRE (Gowling WLG (Canada) S.E.N.C.R.L., s.r.l.) DESCRIPTION: Application for stay of execution pending application for leave to appeal to the Supreme Court. (Articles 65.1(2), 66(2) and 40(1) of the Supreme Court Act ) Clerk: Mihary Andrianaivo Courtroom: RC-18

HEARING 15:24 Commencement of the hearing. Exchanges between the Judge and Ms. Lichtman. 15:58 Submissions by Mtre Marcheterre. 16:21 Rebuttal by Ms. Lichtman. 16:32 Rejoinder by Mtre Marcheterre. 16:38 Recess. 16:57 Resumption of the hearing. Further submissions by Mtre Marcheterre. 16:58 Exchanges between the Judge and Ms. Lichtman. 17:04 Exchanges between the Judge and Mtre Marcheterre. 17:05 Recess. 18:13 Resumption of the hearing. BY THE JUDGE: Judgment – See page 3. 18:23 End of the hearing.

Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Appearing before me without counsel, Joan Lichtman asks that execution of a judgment of this Court, rendered on August 2, 2016, be suspended pending the outcome of her proposed appeal to the Supreme Court of Canada. She styles her motion an “emergency application” prompted by the fact that she received, on or about August 5, 2016, an “avis d’exécution” of the judgment served on her by bailiff at the request of the respondent, as well as an “eviction notice” calling on her to vacate her home, the subject-matter of the proceedings.

She is to vacate by August 11, 2016 ( i.e. tomorrow) at 7 a.m. [ 2 ] The judgment from which the petitioner proposes to seek leave granted a motion to dismiss her appeal from a judgment of the Superior Court, rendered ex parte , which had maintained the respondent’s motion to institute proceedings for non-payment of a debt secured on her house.

The Superior Court condemned the petitioner to pay a sum of damages and ordered the surrender and sale of the immovable by judicial authority. [ 3 ] In its judgment granting the motion to dismiss and dismissing the appeal, this Court wrote, in part: [5] The appeal before us should be dismissed as it has no reasonable chance of success. The judgment is based on uncontradicted evidence.

The Appeal Court will not intervene in matters of fact where no palpable and overriding error is demonstrated which is the case at bar. [ 4 ] In support of her proposed appeal, petitioner says she will argue in the Supreme Court that she had been prevented from attending the hearing in Superior Court by reason of a flood in her basement. Petitioner says that she had a good defence to make before the Superior Court based on the bank’s alleged misconduct in refusing to do business with her and in calling the loan in an unfair manner.

The trial judge refused her written request for a postponement and maintained the action brought by the bank based on the latter’s uncontradicted evidence.

Petitioner states that she has asked for revocation of the judgment refusing the postponement but it appears she has not taken steps to advance those proceedings. [ 5 ] In the circumstances, this Court’s finding that her appeal had no reasonable chance of success was mistaken and, she says, should be corrected by the Supreme Court. *** [ 6 ] The criteria that must be established by the petitioner in order to obtain an order suspending execution of the judgment of this Court pending appeal are well known: (1) the existence of a serious question to be decided on appeal; (2) that she will suffer serious prejudice, sometimes characterized as irreparable harm, if her application for suspension is not granted; and (3) that the balance of inconvenience between the parties favours the granting of suspension: see, e.g., Pereira v.

Commission des transports du Québec , 2016 QCCA 765 (per Mainville, J.A., in chambers). (I will assume that the petitioner is serious in her intention to ask the Supreme Court for

leave). *** [7] The proposed appeal raises no question that I perceive to be serious within the meaning of the decided cases. It is, on its face,frivolous, and undertaken with what appears to be the sole purpose of seeking to delay or obstruct the execution of the judgment of theSuperior Court.

She has raised no plausible basis to suggest that the Court erred when it dismissed her appeal as having no reasonableprospect of success. [8] The petitioner has many grievances against the respondent stemming from, in particular, what she considers to be the bank’sunjustified decision to end its relationship with her in 2014. Because she was absent at the hearing in Superior Court, I inquired as to thegrounds of defence she would have raised before the judge in addition to those in her written defence and cross-demand.

The petitionerinsisted that the respondent had no right to put an end to her line of credit in 2014 under what she understood to be the terms of the loanagreement. However she acknowledged that she had not paid 2013 municipal taxes on the house which, says counsel for the respondent,was a ground for default. Other grounds of default were outlined in evidence before the judge that went unanswered. As noted, petitioneris no longer pursuing her motion in revocation in the Superior Court.

I see no plausible argument that this Court erred in deciding therewas no basis in fact or law for reversing the judgment of the Superior Court. [9] The petitioner also stated that the Superior Court was without jurisdiction because, she says, the respondent failed to file certainproceedings within the 180-day period provided by law. This argument was dismissed by the Court and I see no serious argument that theCourt was mistaken in doing so. [10] The threshold for a “serious argument” in respect of a motion for stay is generally understood to be a low one.

It is enough tothe application for leave to appeal offer an arguable case that is neither vexatious nor frivolous: RJR – Macdonald Inc. c. Canada(Attorney General), (SCC), [1994] 1 SCR 311 at 337; Rice v. Agence du revenue du Québec, 2016 QCCA 1077 (judgein chambers). The petitioner has not met that low standard in my view. This is sufficient to dismiss the motion. [11] Several additional comments are in order. [12] The petitioner acknowledges that she owes money to the respondent and that the debt is secured against her home.

The amountof the debt appears to be disputed; the respondent states that it is about $245,000, including some municipal taxes paid by the bank forthe petitioner and accumulated interest. The respondent states that the most recent municipal evaluation of the house is $559,700. Itwould appear therefore that the petitioner has a substantial net amount of equity in the home. [13] Petitioner nevertheless refuses to contemplate any solution that involves her selling the house (which she says would have anegative impact on her research business) or refinancing it (which refinancing, she says, she could not obtain).

She states that she hasmade an “offer” to the respondent that would “solve” the problem at hand: the petitioner would agree to pay the back taxes paid by thebank and the unpaid interest and, from there, resume her relationship with the bank, including the line of credit. She refuses tocontemplate repaying the capital at this time. Counsel for the respondent says this offer is unsatisfactory to her client who wishes to havethe capital repaid and does not wish to offer a new line of credit to the petitioner.

This is not, therefore, a solution. *** [14] While the absence of a serious question is enough to dismiss the motion, I would add the following comments about theprejudice suffered by the petitioner if a stay is refused. [15] There is no question that the petitioner faces harm if a stay is not granted. She states that she is a self-employed, 71-year oldsingle person who lives and works in the house. She states she has no alternate place to live if she is evicted. This is tempered in somemeasure by the fact that she has substantial net equity in the immovable after the debt to the respondent is paid.

But it is best toacknowledge that if the house were sold in a judicial sale, the petitioner would likely not be able to reacquire it. This is, undoubtedly, thesource of prejudice. [16] The respondent does not, in my view, suffer prejudice of this order. I am not unmindful that a bank has a duty to itsshareholders. But its claim against the petitioner is not in peril given the amount of the debt and the value of the immovable that securesit. Moreover because the loan to the petitioner bears interest, even a delay in executing the judgment would not cause the respondent asubstantial loss.

Counsel for the respondent noted that the bank’s collateral might be in jeopardy if the house were uninsured, but thepetitioner stated before me that the house is insured with La Capitale insurance company. [17] As noted, the substantial harm faced by the petitioner is not, in and of itself, sufficient to grant the stay, given the absence ofserious grounds for appeal. But in my view, the fact that the petitioner faces eviction tomorrow morning cannot be ignored.

Counsel forthe respondent observed that the petitioner had been given various grace periods and provided her opportunities to settle the dispute thatshe had refused.

Whether or not that is the case, the eviction proposed for tomorrow morning, given that the petitioner has been in courttoday seeking a stay, is the source of what I see as unnecessary short-term hardship and should be postponed for a finite period ifpossible. [18] I asked counsel for the respondent whether her client would agree to postponing the eviction notice for 30 days in order to givethe petitioner time to find another dwelling or explore the possibility of obtaining new financing. After an adjournment, counsel reportedto me that the respondent agreed to a 30-day postponement for executing the judgment.

I take note of that undertaking which means, ascounsel confirms, that the bailiff will be cancelled for tomorrow.

FOR THE FOREGOING REASONS, THE UNDERSIGNED : [ 19 ] SHORTENS the delay for filing the motion; [ 20 ] ACKNOWLEDGES the undertaking of the respondent that it will suspend execution for the judgment for thirty days, ending on September 10, 2016 at 18h25; [ 21 ] DISMISSES the motion, with legal costs. NICHOLAS KASIRER, J.A.