r v. 8703060, 2021 QCCA 200

Asaduzzaman c. 9188-6150 Québec inc. 2021 QCCA 200 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029021-201 , 500-09-029022-209 (500-17-105228-186, 500-17-100663-171) DATE: February 4, 2021 CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. No: 500-09-029021-201 RUSTUM ASADUZZAMAN APPELLANT – Plaintiff v. 9188-6150 QUÉBEC INC. 8703060 CANADA INC. RESPONDENTS – Defendants No: 500-09-029022-209 RUSTUM ASADUZZAMAN APPELLANT – Plaintiff and PETER MICHALAKOPOULOS APPELLANT – Intervener v. 8703060 CANADA INC. 9188-6150 QUÉBEC INC.

RESPONDENTS – Defendants JUDGMENT [ 1 ] The Court is seized with an application to dismiss an appeal in both files 500-09-029022-209 and 500-09-029021-201. [ 2 ] A brief review of the proceedings is necessary. [ 3 ] In October 2017, in file 500-17-100663-171, a first-rank hypothecary lender, 8703060 Canada Inc. (“870”), filed against Appellant Rustum Asaduzzaman (“Asaduzzaman”) and his spouse an originating application for forced surrender and taking in payment of two immovables (“the taking in payment file”). [ 4 ] On March 27, 2018, a judgment by default was rendered by the Special Clerk by which Asaduzzaman and his spouse were ordered to surrender the properties in favour of 870, thereby declaring the latter the rightful owner of these properties. [ 5 ] On June 26, 2018, Asaduzzaman filed a motion to revoke this judgment of the Special Clerk, alleging essentially that he was never served with the originating application as he was outside the country at the time of service. [ 6 ] On October 10, 2018, 870 sold the properties to Respondent 9188-6150 Quebec Inc. (“9188”). [ 7 ] On October 19, 2018, in a new file bearing number 500-17-105228-186 (“the Annulment file”) Asaduzzaman instituted proceedings against both 870 and 9188 by which he asked for the cancellation of the sale of the properties.

[ 8 ] On March 27, 2019, his Motion to revoke was dismissed by the Superior Court, the Honourable Robert Castiglio. [1] The trial judge, after having heard both the bailiff who served the original application and Asaduzzaman, concluded that Asaduzzaman was served personally and therefore rejected his claim that he was outside the country and unaware of the proceedings filed against him (“the Castiglio judgment”). [ 9 ] In April 2019, Asaduzzaman filed a notice of appeal against the Castiglio judgment but this appeal was dismissed by a panel of the Court on August 7, 2019, [2] further to a motion to dismiss presented by 870.

The panel wrote: [8] Dans sa déclaration d’appel, l’appelant soutient que le juge de première instance aurait erré dans l’appréciation de la preuve documentaire produite, soit la photocopie de son passeport. Il s’agirait là aussi d’une erreur de droit puisque cette photocopie ferait preuve du contenu du passeport lorsque l’original est perdu ou volé. [9] L’appelant soutient aussi qu’il aurait depuis retrouvé son passeport et qu’il soumettra à la Cour une requête pour obtenir l’autorisation de le présenter à la Cour au moyen d’une demande pour produire une preuve nouvelle indispensable.

Or, aucune telle demande n’a été effectivement soumise à la Cour, ni avant ni pendant l’audition de la demande en rejet de l’appel. [10] Dans ces circonstances, nous sommes d’avis que l’appel est voué à l’échec. [ 10 ] On the same day, August 7, 2019, Asaduzzaman filed a discontinuance of the proceedings seeking the annulment of the sale of the properties entered by 870 and 9188.

He, however, kept occupying one of the properties, refusing to leave and vacate. [ 11 ] In August 2019, 9188 instituted an originating application in eviction and damages and for the issuance of a safeguard order against Asaduzzaman. [ 12 ] On September 9, 2019, Asaduzzaman filed a second application in revocation of the Special Clerk, asking at the same time for a “modification of the Castiglio judgment in such a way that it would rather grant his first motion in revocation.” [ 13 ] On November 11, 2019, in the annulment file, Asaduzzaman also filed a motion in the disavowal of his attorney seeking to set aside the discontinuance of the proceedings. [ 14 ] The hearing on both the second motion in revocation and the motion in disavowal was scheduled for February 17, 2020, in front of a single judge. [ 15 ] On February 13, 2020, Assaduzzaman filed a motion to postpone the hearing in both files. [ 16 ] On February 17, 2020, the Superior Court, the Honourable Marc-André Blanchard [3] , rejected the four motions (“the Blanchard judgments”), declaring both the Motion in revocation and the Motion in disavowal to be an abuse of process. [ 17 ] On the same day, Appellant Michalakapoulos (“Michalakapoulos”) filed a motion to intervene in both files, alleging that he bought from Assaduzzaman a 5% interest in the building through a “confidential agreement” that was never registered. [ 18 ] This motion was heard and dismissed by the Superior Court, the Honourable Christiane Alary, on February 21, 2020. [4] She wrote: WHEREAS on August 7 2019, after a judgment of appeal granting defendant’s motion to dismiss, Mr Asaduzzaman filed a discontinuance of his claim in the file bearing number 500-17-105226-186; WHEREAS on February 17th 2020, Mr.

Justice Blanchard jcs dismissed Mr Asaduzzaman’s motion for disavowal of Me Morales; WHEREAS , on the same date, Mr Justice Blanchard jcs also dismissed Mr Asaduzzaman’s amended motion in revocation of judgment; WHEREAS , Mr Michalakopoulos is asking to intervene in two files that are already terminated, at least as far as the Superior Court is concerned; WHEREAS , furthermore, Mr Michalokopoulos claims to have acquired from Mr Asaduzzaman a 5% interest in a property that no longer belonged to Mr Asaduzzaman when the acquisition of rights was allegedly made; WHEREAS the motions to intervene are ill founded and abusive; FOR THESE REASONS, the Court: DISMISSES Mr Michalokopoulos’ application to intervene; DECLARES these applications abusive; DECLARES that the filing of any further proceedings in these two files, either by Mr Asaduzzaman or by Mr Michalokopoulos, is subject to the previous authorization by the chief justice of this Court; THE WHOLE , with costs against Mr.

Asaduzzaman. [ 19 ] On March 13, 2020, Asaduzzaman and Michalakapoulos filed a joint appeal, in both files and against both the Blanchard

judgments and the Alary judgment. [ 20 ] 9188 filed an application to dismiss the appeal in both files, claiming that none of these appeals was authorized and present no chance of success. *** [ 21 ] The Court is of the view that the appeals present no chance of success and therefore must be dismissed. [ 22 ] Asaduzzaman did try to have the judgment rendered by the Special Clerk revoked on the basis that he was not personally served with the original application for forced surrender and taking in payment and did not have knowledge of it but to no avail. [ 23 ] His motion was dismissed by Justice Castiglio who, after having heard his testimony as well as the bailiff’s testimony, concluded that he was served personally and, therefore, had taken cognizance of the application. [ 24 ] He appealed this judgment but his appeal was dismissed by the Court on August 7, 2019. [5] Since he did not seek permission from the Supreme Court of Canada to appeal this last judgment, the judgment rendered by the Special clerk on March 27, 2018, acquired the authority of res judicata .

Art. 2848 of the Civil Code reads: 2848. L’autorité de la chose jugée est une présomption absolue; elle n’a lieu qu’à l’égard de ce qui a fait l’objet du jugement, lorsque la demande est fondée sur la même cause et mue entre les mêmes parties, agissant dans les mêmes qualités, et que la chose demandée est la même. […] 2848.

The authority of res judicata is an absolute presumption; it applies only to the object of the judgment when the demand is based on the same cause and is between the same parties acting in the same qualities and the thing applied for is the same. […] [ 25 ] In his second Motion for revocation, Asaduzzaman is alleging the very same facts, namely that he was not served personally since he was out of the country at the time of service and that he had no knowledge of the application before the judgment rendered by the Special Clerk.

He is also seeking the very same thing, namely the revocation of the judgment rendered by the Special Clerk. His motion, actually, is a mere repetition of the previous one. [ 26 ]

Article 168 C.p.c . expressly mentions res judicata as a ground for dismissing an application: 168. Une

partie peut opposer l’irrecevabilité de la demande ou de la défense et conclure à son rejet dans l’une ou l’autre des circonstances suivantes: 1° il y a litispendance ou chose jugée; […] 168.

Application for dismissal A party may ask that an application or a defence be dismissed if (1) there is lis pendes or res judicata; […] [ 27 ] The judgment rendered by the Special Clerk having acquired the authority of res judicata , the Motion to intervene filed by Michalakapoulos was also clearly ill-founded since his alleged interest cannot be opposed to either 870 or 9188. [ 28 ] Appellants also contest the judges’ decision to condemn Asaduzzaman to costs but since such a decision is discretionary there is no chance that the Court will intervene in the present circumstances. [ 29 ] In that context we are of the view that the appeals have no chance of success and must be dismissed forthwith.

FOR THESE REASONS, THE COURT: [ 30 ] GRANTS the motion to dismiss the appeal in file 500-09-029022-209; [ 31 ] DISMISSES the appeal in file 500-09-029022-209, with costs against the appellants; [ 32 ] GRANTS the motion to dismiss the appeal in file 500-09-029021-201; [ 33 ] DISMISSES the appeal in file 500-09-029021-201, with costs against the appellant.

JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. Mtre Marie-Louise Beauchamp MARIE-LOUISE BEAUCHAMP, AVOCATE For Rustum Asaduzzaman Mtre Antoine Van Audenrode SPIEGEL SOHMER For 9188-6150 Québec inc. Mtre Caroline Léonard CARDINAL LÉONARD DENIS For 8703060 Canada inc . Peter Michalakopoulos Unrepresented Date of hearing: January 18, 2021