2013 QCCA 1359, 2013 QCCA 1359

D.B. c. M.B. 2013 QCCA 1359 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023139-124 (500-14-040437-121) DATE: JULY 31, 2013 PRESIDING: THE HONOURABLE MR. JUSTICE ALLAN R. HILTON D. B. APPELLANT / PETITIONER - Respondent v. M. B. RESPONDENT / RESPONDENT - Plaintiff and J. B. Impleaded Party and PUBLIC CURATOR OF QUEBEC IMPLEADED PARTY / RESPONDENT - Impleaded Party JUDGMENT [ 1 ] This motion raises a unique question relating to the suspension of execution of judgments of this Court when the losing party has applied for leave to appeal to the Supreme Court of Canada. [ 2 ] The petitioner D. B. seeks a stay of execution of paragraphs a), b), and

c) of the judgment of the Superior Court rendered on November 1, 2012 by Duprat, J. His judgment received a motion to revoke a judgment of Lacoursière, J. that removed the petitioner as the curator to the person and property of her father, J. B., and replaced her in that function with the Public Curator. The petitioner further seeks an order enjoining the Public Curator to return all personal property removed from her father's residence at [...] in Town A to those premises. [ 3 ] The issue is whether in the circumstances of this case, the stay of execution of a trial judgment contemplated by

article 497 C.C.P. , once an appeal from a judgment such as that of Duprat, J. has been dismissed by this Court, continues to operate when a leave application to the Supreme Court of Canada has been filed. [ 4 ] The facts giving rise to the appeal and this motion are not in dispute and may be stated succinctly. [ 5 ] On December 1, 2011 judgment was rendered declaring Mr. B. incapable and appointing the petitioner as curator to both his person and his property. [1] [ 6 ] On July 9, 2012 Lacoursière, J. rendered a judgment by default and instead named the Public Curator as curator to the person and property of Mr.

B.. [2] [ 7 ] On November 1, 2012 Duprat, J. received the petitioner's Motion for Revocation and reappointed her as the curator to Mr. B.'s person and property, subject to the following conclusion: PREND ACTE de l'accord des parties:

a) que dans un délai de 30 jours les parties conviendront de la disposition des effets personnels et des meubles;

b) qu'au delà de ce délai de façon intérimaire, le curateur public agira comme curateur aux biens de J... B...;

c) qu'au delà du délai de 30 jours, le Curateur public pourra agir dans les meilleurs intérêts de J... B... eu égard à ses biens incluant le droit pour le curateur public de procéder à la vente de la résidence du [...] à Ville A.

The merits of the motion to revoke are scheduled to be heard on August 14, 2013. [ 8 ] On January 17, 2013 Fournier, J.A. granted leave to appeal from the judgment of Duprat, J., but only with respect to the conclusion reproduced in paragraph [7] above. [3] The argument advanced to obtain leave was that contrary to the affirmation of Duprat, J., the parties never agreed to the three conditions therein mentioned. As a result, the execution of the judgment of Duprat, J. relating to the three conditions was stayed by operation of law pursuant to

article 497 C.C.P. Nevertheless, the proceedings relating to the grounds

of defence to the motion to revoke the judgment of Lacoursière, J. were not stayed in the court below: [12] Ordonne la continuation des procédures de première instance. [ 9 ] On April 19, 2013 the Court dismissed the petitioner's appeal in an oral judgment rendered at the hearing. [4] It held that the counsel before Duprat, J. had in fact agreed to the three conditions mentioned in paragraph [7] above. [ 10 ] On June 14, 2013 the petitioner served the respondent with a notice of application for leave to appeal to the Supreme Court of Canada. [5] [ 11 ] Three days later, on June 17, 2013 the Public Curator removed personal property located at [...] in Town A, Quebec. [ 12 ] The petitioner contends that the stay of execution of the three conditions in the judgment of Duprat, J. that was in force once Fournier, J.A. granted leave to appeal continues to apply pending the Supreme Court of Canada's decision to either dismiss or grant leave to appeal, and in the latter case, until judgment is rendered on the merits. [ 13 ] The basis for the petitioner's argument is grounded in the following sections of the Supreme Court Act , [6] which provide as follows, and in particular subsection 66(2) : 65.

(1) On filing and serving the notice of appeal and depositing security as required by

section 60, execution shall be stayed in the original cause, except that (

a) where the judgment appealed from directs an assignment or delivery of documents or personal property, the execution of the judgment shall not be stayed until […]; (

b) where the judgment appealed from directs the execution of a conveyance or any other instrument, the execution of the judgment shall not be stayed until […]; (

c) where the judgment appealed from directs the sale or delivery of possession of real property or chattels real, the execution of the judgment shall not be stayed until […]; and (

d) where the judgment appealed from directs the payment of money, either as a debt or for damages or costs, the execution of the judgment shall not be stayed until […]. […]

(4) The Court, the court appealed from or a judge of either of those courts may modify, vary or vacate a stay of execution imposed by subsection (1). 65.

(1) Dès le dépôt du cautionnement et de l’avis d’appel, ainsi que la signification de ce dernier, en conformité avec l’article 60, il est sursis à l’exécution du jugement dans la cause en première instance. Il n’y a toutefois pas sursis :

a) dans le cas où le jugement attaqué ordonne la cession ou livraison de documents ou de biens mobiliers, tant que […];

b) dans le cas où le jugement attaqué prescrit la souscription d’un acte translatif de propriété ou de tout autre acte, tant que […];

c) dans le cas où le jugement attaqué prescrit la vente ou la livraison de biens-fonds ou de biens personnels immobiliers, avant […];

d) dans le cas où le jugement attaqué prescrit le paiement d’une somme soit pour dette soit pour dommages-intérêts ou frais, tant que […]. […]

(4) La Cour, la juridiction inférieure ou un de leurs juges peut modifier ou annuler le sursis visé au paragraphe (1).

65.1

(1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.

(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.

(3) The Court, the court appealed from or a judge of either of those courts may modify, vary or vacate a stay order made under this section. 65.1

(1) La Cour, la juridiction inférieure ou un de leurs juges peut, à la demande de la

partie qui a signifié et déposé l’avis de la demande d’autorisation d’appel, ordonner, aux conditions jugées appropriées, le sursis d’exécution du jugement objet de la demande.

(2) La juridiction inférieure ou un de ses juges, convaincu que la

partie qui demande le sursis a l’intention de demander l’autorisation d’appel et que le délai entraînerait un déni de justice, peut exercer le pouvoir prévu au paragraphe (1) avant la signification et le dépôt de l’avis de demande d’autorisation d’appel.

(3) La Cour, la juridiction inférieure ou un de leurs juges peut modifier ou annuler le sursis ordonné en vertu du présent article. 66.

(1) When security has been given as required by sections 60 and 65, any judge of the court appealed from may issue his fiat to the sheriff, to whom any execution on the judgment has issued, to stay the execution, and the execution shall be thereby stayed whether a levy has been made under it or not.

(2) Where the court appealed from is a court of appeal and execution has been already stayed in the case, the stay of execution continues without any new fiat until the decision of the appeal by the Supreme Court.

(3) Unless a judge of the court appealed from otherwise orders, no poundage shall be allowed against the appellant, on any judgment appealed from, on which any execution is issued before the judge’s fiat to stay the execution is obtained. [Emphasis added.] 66.

(1) When security has been given as required by sections 60 and 65, any judge of the court appealed from may issue his fiat to the sheriff, to whom any execution on the judgment has issued, to stay the execution, and the execution shall be thereby stayed whether a levy has been made under it or not.

(2) Where the court appealed from is a court of appeal and execution has been already stayed in the case, the stay of execution continues without any new fiat until the decision of the appeal by the Supreme Court.

(3) Unless a judge of the court appealed from otherwise orders, no poundage shall be allowed against the appellant, on any judgment appealed from, on which any execution is issued before the judge’s fiat to stay the execution is obtained. [ 14 ] In support of her position, the petitioner relies on the reasons of Martland, J., writing for the Supreme Court of Canada in Foundation Co. of Canada Ltd. v. Prince Albert Pulp Co. Ltd. , in which he said the following: The scheme established by ss. 70 and 71 [now ss. 65 and 66] appears to me to be this.

By virtue of s. 70, when notice of appeal has been filed and served and the security required by s. 66 [now s. 60] has been deposited, execution in the original cause is stayed, but, in the instances described in paras, (

a) to (

d) inclusive, there are additional requirements in order to make the statutory stay of execution effective. These paragraphs concern: (

a) appeal from a judgment which directs an assignment or delivery of documents or personal property; (

b) appeal from a judgment which directs the execution of a conveyance or other instrument; (

c) appeal from a judgment which directs the sale or delivery of real property, chattels real or immovables; (

d) appeal from a judgment which directs the payment of money, either as a debt or for damages or costs. Section 71(1) empowers a judge of the Court from which an appeal has been taken, if execution has been issued, to issue a fiat to the sheriff to stay the execution. Section 71(2) provides for the situation in which the appeal is from a Court of Appeal and execution has already been stayed. In such case the stay of execution continues without any new fiat from the Court of Appeal, until the decision of the appeal in this Court. In the present case the appeal is from a Court of Appeal.

Execution was stayed by the trial judge prior to the decision of that Court. That stay meets the requirement of subs. (2) that “execution has been already stayed in the case”. The subsection does not require that such stay have been granted by the Court of Appeal . The stay is continued without any new fiat by the Court of Appeal. Counsel for the appellant contended that the operation of s. 71(2) depends on security having been given where the case falls within the

exceptions in s. 70(1). I see no ground upon which to read this qualification into s. 71(2). In my opinion s. 71(2) was effective to continue the stay granted by the trial judge until the decision of the appeal by this Court . [7] [Emphasis added.] [ 15 ] The Supreme Court of Canada's holding in Prince Albert Pulp was made in the context of determining whether the Court of Appeal of Saskatchewan had erred in applying subsection 70(1) of the Act (now subsection 65(1)) to the facts there in issue.

Those facts are summarized as follows. [ 16 ] The trial judge rendered judgment against the respondents in a mechanics' lien action. One of the respondents, Parsons and Whittemore Pulpmills Inc., or Pulpmills, operating as a general contractor, built a pulp mill for another respondent, Prince Albert Pulp Co., or Papco. The appellant, a subcontractor for Pulpmills, was awarded damages and granted a lien on the pulp mill. The respondents subsequently appealed to the Court of Appeal of Saskatchewan.

Pending the appeal, the respondents sought a stay of proceedings from the trial judge, citing special circumstances in order to waive the general rule in that province that, unlike in Quebec, an appeal does not stay proceedings. Only one of the respondents, Papco, was successful: [6] Under these circumstances, the proceedings on the judgment against Papco will be stayed until conclusion of the appeal, unless otherwise ordered . [8] [Emphasis added.] [ 17 ] The Court of Appeal of Saskatchewan affirmed the trial judgment on the merits, and a writ of execution against the respondents was eventually issued.

They replied by filing and serving a notice of appeal to the Supreme Court of Canada, and depositing security for costs. The respondents then applied to the Court of Appeal of Saskatchewan for a stay of execution of its judgment and a stay of the writ. Both stays were granted on the basis of what is now subsection 65(1)) of the Act .

The appellant's appeal to the Supreme Court of Canada from the judgment on the stay ordered by the Court of Appeal of Saskatchewan was ultimately dismissed for the reasons reproduced above at paragraph [14]. [ 18 ] With respect, I cannot accept the petitioner's submission that the stay of execution of the judgment of Duprat, J., brought about by the operation of

article 497 C.C.P. continues to apply once this Court dismissed her appeal. The general scheme of the Code of Civil Procedure does not support her argument in this respect: 25. The Court of Appeal is the general appeal tribunal for Québec; it hears appeals from any judgment from which an appeal lies, failing an express provision to the contrary. 25. La Cour d'appel est le tribunal général d'appel pour le Québec; elle connaît de l'appel de tout jugement sujet à ce recours, à moins d'une disposition expresse au contraire. 491.

Saving contrary provisions of the law in respect of certain matters, appeal to the Court of Appeal is subject to the following rules. 491. Sauf dispositions contraires de la loi pour certaines matières, l'appel à la Cour d'appel est soumis aux règles qui suivent. 497. Saving the cases where provisional execution is ordered and where so provided by law, an appeal regularly brought suspends the execution of judgment. […] 497. Sauf les cas où l'exécution provisoire est ordonnée et ceux où la loi y pourvoit, l'appel régulièrement formé suspend l'exécution du jugement. […] 522.

Judgment is executed , for both principal and costs, by the court of first instance, unless there is an appeal to the Supreme Court of Canada. A copy of the judgment of the Court of Appeal, and the record of the case if the latter was transmitted to the Appeal Office, must be transmitted to the office of the court in which the judgment appealed from was rendered. 522. Le jugement est mis à exécution , tant pour le principal que pour les dépens, par la cour de première instance, s'il n'y a appel à la Cour suprême du Canada.

Une copie du jugement de la Cour d'appel ainsi que, le cas échéant, le dossier de la cause transmis au greffe des appels doit alors être transmis au greffe du tribunal où le jugement porté en appel a été rendu. 522.1. The Court of Appeal or one of its judges may , subject to the conditions the Court or the judge deems appropriate, order suspension of the execution of a judgment of the Court , on a motion of a party who establishes his intention to apply for leave to appeal to the Supreme Court of Canada. [Emphasis added.] 522.1.

La Cour d'appel ou l'un de ses juges peut ordonner , aux conditions qu'il estime appropriées, de suspendre l'exécution d'un jugement de cette cour , sur demande d'une

partie qui démontre son intention de présenter une demande d'autorisation d'appel à la Cour suprême du Canada. [ 19 ] The following commentary outlines the law as it currently stands in Quebec: En principe, un jugement de la Cour d'appel est exécutoire nonobstant une demande de permission d'appel à la Cour suprême du Canada, contrairement à un jugement d'un tribunal de première instance. [9]

[References omitted.] [20] This position is also confirmed by Mailhot and Pariseau-Legault: Le jugement ou l'arrêt est mis à exécution, tant pour le principal que pour les dépens, par la cour de première instance, s'il n'y a pas appelà la Cour suprême du Canada (art. 522, al. 1). Il est exécutoire immédiatement, sauf si une

partie en demande et obtient la suspension à un juge de la Cour d'appel, conformément àl'article 522.1 parce qu'elle a démontré son intention de demander une autorisation d'appel à la Cour suprême du Canada.[10] [Emphasis added and references omitted.] [21] Upon reading the first paragraph of

article 522 C.C.P. in conjunction with

article 522.1 C.C.P., I am convinced that this is theproper conclusion; a stay of execution must be applied for under the latter provision or subsection 65(1) of the Act to bring about theresult the petitioner seeks from me based on subsection 66(2) of the Act.

Article 497 C.C.P., read together with

article 491 C.C.P., alsomakes it clear that the stay of execution applies only to the trial judgment and has no ongoing life once this Court's judgment is renderedon the merits. [22] Furthermore, a reading of the other provisions of the Act referred to above does not assist the petitioner's submission. Thesesections were the subject of commentary by Binnie, J., sitting as a rota judge on an application to vacate a stay of execution in Québec(Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City of).

In that case, the appellant unsuccessfullyargued that proceedings before an administrative tribunal were automatically stayed pursuant to subsection 65(1) of the Act once leave toappeal to the Supreme Court of Canada was granted. In dismissing the motion, Binnie, J. said this: [10] This Court has held on a number of occasions that the filing of a notice of appeal to this Court does not result in an automaticsuspension of the judgment appealed from. See, for example, G. (L.) v.

B. (G.), (SCC), [1995] 3 S.C.R. 367, whereSopinka J. summarized the previous case law at para. 6 as follows: An appeal to this Court does not result in a suspension of the judgment appealed from. Although execution of the judgment by a thirdparty is stayed in the circumstances specified in s. 65 (see Keable v.

Attorney General of Canada, (SCC), [1978] 2S.C.R. 135), a party seeking to suspend the operation of the judgment on appeal in other circumstances must resort to s. 65.1 and Rule27. [Emphasis added by Binnie, J.] [11] The reference to the Keable case is to the statement of Laskin C.J. at p. 138 wherein the Chief Justice, after a hearing by the fullCourt, pronounced as follows: It is my opinion, in any event, that reliance on s. 70 [now s. 65] of the Supreme Court Act as prescribing an automatic stay of the order ofsuspension of the Keable Commission proceedings is misconceived.

That provision has in view, as the exceptions therein make clear andas is evident from ss. 71 and 72 [now ss. 66 and 67], the intervention, for example, of a sheriff to carry out a direction in implementationof a judgment, where the judgment itself is left unimpaired pending the determination of an appeal to this Court. [12] This

interpretation of s. 65 was confirmed again by this Court in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, where Sopinka and Cory JJ. stated at pp. 328-29: Examples of the former [an order arresting execution of the Court's process by a third party], traditionally described as stays ofexecution, are contained in the subsections of s. 65 of the Act which have been held to be limited to preventing the intervention of a thirdparty such as a sheriff but not the enforcement of an order directed to a party. [Emphasis added by Binnie, J.] [13] The

interpretation requiring "intervention of a third party" is admittedly not immediately obvious from the text of s. 65(1) becauseparas. (

a) to (

d) enumerate as exceptions four specified activities required of the unsuccessful party none of which involve the"intervention of a third party" such as the sheriff. The usual inference would be that conduct of the parties not included in the exceptionswould be stayed. In para. (b), for example, it is provided that where the judgment appealed from directs the execution of a conveyance orother instrument, the execution of the judgment shall not be stayed until the instrument has been executed and deposited with the properofficer of the court appealed from to abide the judgment of the Supreme Court.

There would be no need for this "exception" unless thestay imposed by the opening words of s. 65 would otherwise relieve the unsuccessful party (as opposed to a third party such as a sheriff)from executing the instrument. The same observation can be made in relation to paras. (a), (

c) and (d). Be that as it may, the "third partyintervention" gloss was arrived at in the earlier judgments of this Court by reading s. 65 together with s. 66 (fiat to sheriff when securitydeposited) and s. 67 (money levied and not paid over before fiat). It was concluded that the entire group of sections referred to executionin the sense of enforcement action taken by some third party such as the sheriff. The result is that while s. 65(1) must be given effectaccording to its terms, the

section as a whole is to be read restrictively in accordance with the

interpretation authoritatively settled by theCourt in Keable, supra, G. (L.) v. B. (G.), supra, and RJR-MacDonald, supra, as previously stated.[11] [Emphasis added.] [23] Subsection 66(2) of the Supreme Court Act must therefore be interpreted within the general scheme of the Act. [24] In fact, not only is

article 497 C.C.P. inapplicable to proceedings underway before the Supreme Court of Canada, but the limitedscope of subsection 66(2) of the Act is nothing more than declaratory by recognizing the continuation of a stay ordered by a judge. Nosuch stay was ordered in this case. To interpret subsection 66(2) of the Act in the manner proposed by the petitioner would effectivelyread out

article 522.1 C.C.P. and subsection 65(1) of the Act. Parliament could not possibly have intended such an incongruous result. FOR THESE REASONS, THE UNDERSIGNED: [25] DISMISSES the motion, with costs.

ALLAN R. HILTON, J.A. Mtre Jean El Masri EL MASRI AVOCAT INC. For the appellant Mtre Geeta Narang NARANG & ASSOCIÉS For the respondent M. B. Mtre Alexandre Leroux PUBLIC CURATOR OF QUEBEC For the impleaded party Public Curator of Quebec Date of hearing: July 17, 2013