2021 QCCA 984, 2021 QCCA 984

Xiao c. Lo 2021 QCCA 984 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028795-201 ( 500-17-088263-150 ) MINUTES OF HEARING DATE: June 9, 2021 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A.

APPELLANTS COUNSEL ji dao xiao ling yang Mtre julius grey m tre cassandra modafferi ( Grey & Casgrain ) By videoconference RESPONDENT COUNSEL Hua kin lo, in her capacity as a lawyer Mtre pierre brossoit ( Robinson Sheppard Shapiro ) By videoconference On appeal from a judgment rendered on December 18, 2019 by the Honourable Stéphane Lacoste of the Superior Court , District of Montreal . NATURE OF THE APPEAL: Professional responsibility – Counsel – Duty to provide information – Duty to advise – Nominee agreement ( Contrat de prête-nom ) – False declaration.

Clerk at the hearing : Lesly Ramos Courtroom: Antonio-Lamer HEARING 9:28 Commencement of the hearing. 9:30 Submissions by Mtre Grey.

10:42 Recess of the hearing. 10:46 Resumption of the hearing. The Court advises Mtre Brossoit that it will not be necessary to hear his submissions. 10:47 BY THE COURT : Judgment – see page 3. Conclusion of the hearing. Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] This is an appeal against a judgment pronounced on 18 December 2019 by the Superior Court, District of Montreal, that dismissed the appellants’ action in damages with costs of justice to the respondent. [1] [ 2 ] On the instructions of the appellants the respondent prepared a nominee agreement for the purchase of a facility for child care.

The appellants’ instructions were misleading and false in material particulars. They sought to evade a restriction under the law of Quebec that would allow them to own and operate child-care facilities that had no more than a total of 300 places. [2] [ 3 ] In making these findings of fact the trial judge concluded that the appellants were not credible and that, notwithstanding some weaknesses, the respondent’s testimony was credible and reliable.

These are questions of fact that require deference to the conclusions of the trial judge. [3] The appellants have not demonstrated palpable and overriding error in those conclusions. [4] [ 4 ] The appellants submit further that the respondent failed to satisfy her duty to advise as a member of the Bar when she completed the nominee agreement. [5] They claim that the respondent did not adequately ask the appellants about the circumstances surrounding the proposed agreement. This submission is irreconcilable with the judge’s findings of fact.

He specifically found that the respondent expressly advised the appellants of the legal restrictions on the operation of child-care facilities. She relied on the truth and accuracy of the information provided to her by the appellants. She completed the agreement on this basis and after she explicitly advised the appellants to seek a hypothec for their proposed acquisition rather than a nominee agreement.

The trial judge concluded that the appellants withheld material information concerning the proposed agreement, notably that the number of places after completion of the agreement would exceed the number permitted by law. The judge concluded that the respondent committed no fault. [ 5 ] As the appellants have failed to show palpable and overriding error in the judgment at trial, the appeal is dismissed with costs of justice to the respondent. FOR THESE REASONS, THE COURT: [ 6 ] DISMISSES the appeal, with legal costs. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A.