2016 QCCA 1672, 2016 QCCA 1672

Lichtman c. Royal Bank of Canada 2016 QCCA 1672 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026052-167 (500-17-086825-158) DATE: October 13, 2016 PRESENT : THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. JOAN LICHTMAN PETITIONER – Defendant v. ROYAL BANK OF CANADA RESPONDENT – Plaintiff JUDGMENT [ 1 ] Petitioner Joan Lichtman presents a motion entitled “Motion in Opposition to Sale of Residence necessary literally to save Defendant’s life”, based on

article 735 C.C.P, by which she asks for a stay of the judicial sale of her property and an order against the Respondent Royal Bank to allow her to live in the property, without payment of rent, pending the outcome of her appeal to the Supreme Court of Canada. [ 2 ] As of today, no motion for permission to appeal to the Supreme Court of Canada has yet been filed. [ 3 ] The circumstances that gave rise to this motion can be summarized as follow: [ 4 ] On April 6, 2016, Mrs. Lichtman was condemned, ex parte , by the Superior Court (Justice Louis Crête) to pay $242,231.05 plus interest to the Royal Bank.

She was also ordered to surrender her immoveable property hypothecated in favor of the Royal Bank for it to be sold under control of justice. [ 5 ] Mrs. Lichtman was absent that day. She had previously requested a postponement of the trial but was advised by the coordinating judge of the Superior Court that she would be required to present her request and make representations to the trial judge at the outset of the trial. [ 6 ] She nevertheless was absent.

Her written request to postpone the trial was however brought to the trial judge’s attention, who denied it. [ 7 ] She did not seek leave to appeal this decision to refuse the postponement. [ 8 ] On or around May 5, 2016, she rather filed a notice of appeal from the judgment condemning her to reimburse the Royal Bank and issuing the order of surrender and sale under control of justice. [ 9 ] The Royal Bank presented a motion to dismiss this appeal, which was granted by the Court on August 2, 2016 (Justices Vauclair, Schrager and Marcotte).

The appeal having been dismissed, the April 6, 2016 Superior Court judgment became executory. [ 10 ] Mrs. Lichtman, however, applied to a judge of the Court with a motion entitled “Emergency Application for stay of execution pending application for leave to appeal to the Supreme Court”.

By this motion, she sought a stay of execution of the judgment rendered by the Court on August 2, 2016. [ 11 ] She alleged in her motion that she had been prevented from attending the hearing in the Superior Court by reason of a flood in her basement and that it was impossible for her to be present at two places at the same moment. She also alleged her grounds of defense against the claim filed by the Royal Bank and expressed her intent to present a motion for leave to the Supreme Court of Canada. [ 12 ] This “Emergency Application for stay of execution” was presented on August 10, 2016.

My colleague Justice Kasirer, after having heard the parties’ representations, rendered a detailed judgment by which he dismissed the motion. [ 13 ] He addressed the three criteria that must be established in order to obtain an order suspending execution of the judgment and concluded that the first one was not met: the proposed appeal raised no serious question. He however acknowledged that facing eviction the day after, Mrs. Lichtman would suffer prejudice if no delay was given and asked the Royal Bank to delay the eviction by 30 days.

The Royal Bank agreed to postpone the eviction and, consequently, Justice Kasirer acknowledged its undertaking to suspend the execution of the judgment for thirty days, ending on September 10, 2016.

[ 14 ] On August 18, 2016, Mrs. Lichtman filed with the Court a document entitled Notice of Opposition to Seizure and Sale of Property / Opposition to Legal Costs of Litigation / Application to Modify Terms of Stay of Execution Pending Application for Leave to Appeal to the Supreme Court - Exhibits. [ 15 ] This notice was not put on a roll for hearing. Mrs.

Lichtman wrote letters to the Court insisting on having her motion heard. [ 16 ] On September 1, 2016, Chief Justice Duval-Hesler wrote to her explaining that the decisions rendered on August 2, 2016 and August 10, 2016 were final and that, consequently, the Court lacked jurisdiction to review them. [ 17 ] Mrs. Lichtman then filed the present motion on October 3, 2016. The allegations and the conclusions contained in this new motion are such that it is difficult to identify its real nature. The motion can be looked at as an opposition to a sale based on

article 735 C.C.P. , which is suggested by its title, or as a new application to suspend the execution of this Court’s judgment dated August 2, 2016. [ 18 ] In both instances, however, I do not have jurisdiction. [ 19 ] If the Petitioner’s motion is an opposition to the sale because, in her view, the proceedings are affected by an irregularity resulting in a serious prejudice, it has to be presented to the Superior Court, since that is the Court which ordered the sale. [ 20 ] If it is rather a new application to suspend the execution of this Court’s judgment, I have no jurisdiction because the very same request has already been presented to and dismissed by Justice Kasirer. [ 21 ] It is well recognized that a party to judicial proceedings, represented or not by an attorney, cannot ask repeatedly for the same thing with the hope that a new judge may decide differently than a previous one.

The law, in the circumstances of this case, does not provide me with the requisite jurisdiction to revisit the issue and or revise Justice Kasirer’s decision. THEREFORE, THE UNDERSIGNED: [ 22 ] DISMISSES the motion, with legal costs. MARIE-JOSÉE HOGUE, J.A. Mrs. Joan Lichtman In person Mtre Mary-Pier Marcheterre Gowling WLG (Canada) For the Respondent Date of hearing: October 6, 2016