2021 QCCA 1665, 2021 QCCA 1665

Tarasenko c. Vasilevich Manakhov 2021 QCCA 1665 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029747-219 ( 500-17-074682-124 ) MINUTES OF HEARING DATE: November 5, 2021 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. APPLICANT ANNA TARASENKO PRESENT and unrepresented RESPONDENT COUNSEL YURY VASILEVICH MANAKHOV Mtre IVAN MICHAEL PANDEV ( Pandev Longpré ) By videoconference DESCRIPTION: Application de bene esse for leave to appeal from a judgment terminating the proceeding rendered on September 28, 2021 by the Honourable Philippe Bélanger of the Superior Court , District of Montreal (Article 30, par. 1 and 2 and

article 357 C.C.P. ). Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING 9:49 Commencement of the hearing. Preliminary remarks by the judge. 9:50 Discussion between the judge and Mrs. Tarasenko. 9:53 Submissions by Mrs. Tarasenko. 10:01 Discussions between the judge and Mrs. Tarasenko. 10:12 Mrs. Tarasenko resumes her submissions.

10:19 Questions by the judge and responses by Mrs. Tarasenko. 10:24 Mrs. Tarasenko resumes her submissions. 10:26 Submissions by Mtre Pandev. 10:32 Reply by Mrs. Tarasenko. 10:35 BY THE JUDGE : Judgment – see page 3. 10:36 Conclusion of the hearing. Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] On November 19, 2019, the Superior Court condemned the Applicant to pay to the Respondent $ 370 000 plus legal interest and additional indemnity calculated from November 14, 2012. It also declared the seizures before judgment on the Applicant’s three immoveable properties to be valid and enforceable.

The Applicant appealed the judgment. On March 9, 2020, her appeal was dismissed and the judgment became final and executory. [1] [ 2 ] For the purpose of executing this judgment, the bailiff sought directions from the Superior Court to be authorized to sell the three seized properties (the Montréal condo, the L’Estérel condo and the L’Estérel land) under judicial authority. A judgment was rendered authorizing this sale. The Applicant sought a revocation of this judgment based on the bailiff’s failure to notify her of the request for directions.

This led to the judgment rendered by the Superior Court on September 28, 2021 that dismissed the Application in revocation, as well as the Applicant’s Opposition to seizure and sale and her request to reopen the hearing. It is from this judgment that the Applicant seeks leave to appeal. [ 3 ] As far as the Application in revocation of the judgment of sale under judicial authority is concerned, the judge dismissed it after concluding that the absence of a prior notice to the Applicant was not inappropriate in the context of a bailiff seeking directions to expedite the execution of a judgment.

He highlighted that such judicial instructions are often granted ex parte [2] and that consequently the Applicant did not suffer any prejudice as a result. The judge added that the Application for revocation did not establish serious grounds of defence that could be raised to contest the bailiff’s motion for directions should the judgment be revoked.

The judge also set aside the Applicant’s argument that she was entitled to the 60 day prior notice provided under articles 2748, 2758 and 2758 CCQ in the exercise of hypothecary rights, because these provisions do not apply to the enforcement of an executory judgment. [ 4 ] On the Opposition to the seizure and sale, the judge decided that the Applicant could not oppose the seizure that she contested without success in 2013 and that was later declared to be valid and enforceable in the November 2019 judgment.

He also dismissed the argument that the proposed sale price for the Montreal property was not commercially reasonable in light of the listing price suggested by the real estate agent ($ 490 000 instead of the sale price set at $ 449 000) in the context of a forced sale.

He also dismissed the argument that the Applicant had not been given the opportunity to sell her Montreal property herself as the evidence revealed that she was duly advised of the bailliff’s intention to proceed to the sale of the Montreal Property and expressly authorized the bailiff in writing to seek to sell same before proceeding to the sale of the L’Estérel condo and L’Estérel land. [ 5 ] The judge also stated that his discretion should not be exercised to allow the Applicant additional time to settle the Respondent’s claim or refinance the seized properties and to further delay the sale of the seized properties.

He pointed out that, if the Applicant wished to develop one of the properties, she was first required to pay the amounts owed under the judgment. [ 6 ] To obtain leave of those two judgments under

article 30, para. 2

(8) CCP , the Applicant must raise issues that should be submitted to the Court because for example, they involve a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions.

The Applicant must also demonstrate that the appeal is in the best interest of justice (article 9 CCP ) and respects the principle of proportionality (article 18 CCP ). [3] [ 7 ] None of the grounds raised involve issues of this nature. [ 8 ] On the question of revocation, the Applicant’s grounds of appeal are vague and essentially relate to the judge’s failure to apply the fundamental principles of the Code of Civil procedure (articles 17, 657 and 683 CCP ) in concluding that the absence of prior notification was appropriate and non-prejudicial to her and in failing to recognize that her grounds of defence were serious without any further detail. [ 9 ] With respect to the Opposition to the seizure and sale, the Applicant raises errors of the motion judge in failing to consider that she could demonstrate a higher potential price than the one determined by the bailiff and that the bailiff had acted in violation of the CCP provisions in not enabling her to sell the properties herself.

She also argues that the judge was wrong in commenting on the fact that the long term and prepaid lease agreement signed for the L’Estérel condo was detrimental to the resale value of the property. [ 10 ] These arguments are vague and are very similar if not identical to those that were submitted and considered by the Superior Court. The Applicant fails to point to any reviewable error on the part of the motion judge in dismissing these arguments.

In my view, the grounds of appeal have no reasonable chance of success and moreover, they appear to be dilatory. [ 11 ] As far as the judgment refusing the application to reopen the hearing is concerned, it is a judgment rendered in the course of

the proceedings. It is analogous to a judgment allowing an objection to evidence within the meaning of

article 31 para. 2 CCP. [4] In Droit de la famille-21904 , my collea gue Justice Bachand faced with a similar determination, emphasized the significant burden resting on an applicant to demonstrate that leave should be granted given the discretionary nature of a trial judge’s discretion to reopen a hearing: [6] When determining whether leave ought to be granted, the key question is whether the proposed appeal would raise questions worthy of the Court’s attention.

That determination must be made in light of considerations which include the principle of proportionality, the best interests of justice, the nature and importance of the questions at issue, as well as the proposed appeal’s likelihood of success. […] [8] While there are situations where the Court will allow an appeal from a judgment dismissing an application to reopen a trial, such situations are exceptional, for several reasons.

One is that trial judges’ discretion to reopen a trial must be exercised “sparingly and with the greatest care.” Another is that, as is well established, the Court cannot simply substitute its own discretion for that of the trial judge.

This highly deferential approach is consistent with the general rule according to which, in all matters relating to the administration of evidence in the context of a trial, the Court will only interfere with first-instance judges’ broad discretionary powers in the clearest of cases. [5] [9] The applicant would thus face a significant burden in order to convince the Court to allow her appeal.

Her chances of success would in all likelihood depend upon a showing that the trial judge’s dismissal of her application amounted to an unreasonable exercise of judicial discretion and that it led to a significant injustice. [ 12 ] In the case at hand, the Applicant fails to convince me that she raises any serious grounds of appeal in relation to the judgment that refused to grant the reopening of the hearing.

Again, she invokes the same grounds that were dismissed by the judge (the fair market value of the properties exceeds the amounts that must be paid and the Applicant wishes to proceed with a development project on one of the properties).

The judge noted that these arguments were dismissed when raised in support of her Opposition to seizure and sale. [ 13 ] It is not sufficient for the Applicant to claim hardship at this point to convince the undersigned to grant leave and order a stay, in the hope of delaying the inevitable i.e. the execution of a judgment that is final and executory in a matter that was commenced in 2012. FOR THESE REASONS, THE UNDERSIGNED: [ 14 ] DISMISSES the application for leave to appeal. [ 15 ] WITH legal costs. GENEVIÈVE MARCOTTE, J.A.