2015 QCCA 1901, 2015 QCCA 1901

Babb c. Anges hypothécaires Jo-Anne Chartrand 2015 QCCA 1901 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025640-152 (500-17-083408-149) DATE: November 17, 2015 PRESIDING: THE HONOURABLE MARIE-FRANCE BICH, J.A. ROSALYNE PATRICIA BABB PETITIONER – Plaintiff / cross-defendant v. LES ANGES HYPOTHÉCAIRES JO-ANNE CHARTRAND INC.

RESPONDENT – Defendant / cross-plaintiff JUDGMENT [ 1 ] By judgment dated September 10, 2015, and deposited in its office on September 14, 2015, [1] the Superior Court, district of Montreal (the honourable Madam Justice Marie-Anne Paquette), dismissed the petitioner's action against the respondent, on the grounds that it was not only ill-founded but also abusive within the meaning of art. 54.1 C.C.P.

Furthermore, the Superior Court granted the respondent's cross-demand and ordered the petitioner to pay the respondent's extrajudicial costs ($36,191.94) as well as all rents owed to the respondent and which the petitioner did not pay for her occupancy of the building over the years or misappropriated ($44,805). [ 2 ] The petitioner, who is not represented by counsel, seeks leave to appeal this judgment, pursuant to art. 26, paragraph 2, subpara. 4.1, C.C.P. * * [ 3 ] The petitioner's motion does not fulfill the stringent conditions required to obtain leave, her grounds of appeal having no reasonable chance of success in light of the applicable criteria. [2] Indeed, the motion does not raise any question of principle or new issue or question of law that has given rise to controversy, within the meaning of art. 26, paragraph 2, C.C.P.

Nor does it raise any question of fact which would require further examination by this Court. [ 4 ] The petitioner's motion first alleges that the “trial judge did not properly consider the facts of the case, namely the conflict of interest of the Defendants-Respondents acting as both mortgage brokers and sale agents”, adding that “this was a relationship tantamount to fiduciary” and that “[t]his dual role put them in an unfair advantage given the nature of the various contracts of sale and hypothec as well as an option to purchase”.

The petitioner's motion also resorts to the concept of lesion. [ 5 ] These allegations, which were debated at trial, were rejected by the judge, who concluded that the petitioner was not the victim of any illegal or unethical manoeuvres from the respondent and that she fully understood the kind of contract she entered into.

In order to reach this conclusion, the judge took note of the fact that the conduct of the respondent was also scrutinized, at length, by the discipline committee of the Organisme d'autoréglementation du courtage immobilier du Québec , which dismissed the petitioner's complaint, as explained in para. 42 of the Superior Court's judgment. [3] [ 6 ] Apart from reiterating the same allegations against the respondent, the petitioner has failed to meet the heavy burden of pinpointing the errors made by the judge in reaching her conclusion or showing that it should be examined more closely by this Court. [ 7 ] In addition, it must be remarked that lesion is not juridically admissible as a basis for nullity of the contract entered into by persons of full age who are not under protective supervision (art. 1405 C.C.Q. ). [ 8 ] The petitioner also alleges that she expected to receive some $118,000 following the various arrangements concluded with the respondent (an amount which she never received), but she does not explain where and how the trial judge erred in stating that: [60] Elle [the petitioner] avoue candidement devant le Tribunal qu’elle ne s’attendait pas à recevoir 118 000 $ le 16 septembre 2011, jour de la signature de l’Acte de vente devant le notaire.

Elle comprenait que cette somme serait éventuellement appliquée comme mise de fonds sur le prix d’achat, si elle était en mesure d’obtenir le financement lui permettant de racheter l’Immeuble dans les trois ans. Devant le Tribunal elle affirme d’emblée : I was not expecting to receive that amount [($118,000)]. This amount was used as a cash down for the option to buy within the 3 years of finding financing. [61] Troisièmement, contrairement à ce que Mme Babb avance, il ne s’agit pas d’un contrat d’adhésion [reference omitted]. Les

clauses de ces contrats ont été négociées et modifiées à plusieurs reprises avant la signature devant le notaire le 16 septembre 2011. Mme Babb a même négocié une modification des termes du Contrat d’option d’achat le 24 novembre 2013.

À nouveau, lors de la conclusion de ce contrat, Mme Babb n’a pas manifesté l’intention ou la compréhension qu’elle aurait dû recevoir 118 000 $ lors de la conclusion de l’Acte de vente en septembre 2011. [ 9 ] Secondly, the judge concluded that, in the circumstances, the petitioner's action was abusive and even reckless, according to art. 54.1 C.C.P. , and that she was seeking to prevent the respondent from exercising its rights over the property in dispute.

The motion for leave to appeal alleges that, on the contrary, it is the respondent's conduct that was “predatory”, causing the petitioner “to lose and be deprived of the totality of market value appreciation of the said building”, and that the action was therefore not abusive. On that point, however, as on the others, the petitioner's motion essentially seeks a re-trial of all the issues that were dealt with in first instance, without clearly identifying any palpable and overriding error in the judgment.

In view of the role of a court of appeal and of the applicable standard of review, this is not sufficient to justify that leave be granted. * * [ 10 ] Considering the peculiar and unfortunate situation of the petitioner, financially speaking, costs on the motion shall not be awarded. [ 11 ] FOR THESE REASONS , the motion is DISMISSED , without costs. MARIE-FRANCE BICH, J.A. Ms Rosalyne Patricia Babb Personally Mtre Francis Giroux FRANCIS GIROUX AVOCAT For the respondent Date of hearing: November 16, 2015