2011 QCCA 1028, 2011 QCCA 1028

Tehrani c. Comodini 2011 QCCA 1028 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020130-092 ( 500-22-150582-081 ) MINUTES OF THE HEARING DATE: June 1, 2011 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. NICHOLAS KASIRER, J.A. APPELLANT(

S) ATTORNEY(

S) MAJID ASGHARNEJAD TEHRANI Mtre Armand J. Elbaz RESPONDENT(

S) ATTORNEY(

S) ARYANNA COMODINI Mtre Hugo R. Martin BOUCHER HARPER ATTORNEY(

S) On appeal from a judgment rendered on October 14, 2009 by the Honourable Madam Justice Eliana Marengo of the Quebec Court, District of Montreal. NATURE OF THE APPEAL : Motion to institute proceedings Clerk: MARC LEBLANC Courtroom: PIERRE-BASILE-MIGNAULT HEARING 10 h 45 Beginning of the hearing. 10 h 46 Mtre Elbaz has nothing to add to his factum. 10 h 46 Argument of Mtre Martin. 11 h 01 Judgment rendered – see page 3. 11 h 03 The hearing is concluded. Marc Leblanc Clerk BY THE COURT JUDGMENT

[ 1 ] The conclusions of the motion to institute proceedings in this case invited the Court of Quebec to order the reimbursement, with interest, of a $50,000 loan that the appellant claims to have made to his wife, the respondent, during the time they lived together. [ 2 ] The respondent had provided the appellant with two cheques, in the amount of $25,000 each, which he never presented for payment. [ 3 ] Upon a motion to dismiss the action filed pursuant to article 165(4) C.C.P., the motions judge held that the respondent was discharged under subs. 84(2) of the Bills of Exchange Act , R.S.C., 1985 c.

B-4 (the " Act "), because the cheques had not been presented by the appellant for payment (para. [11]). The judge decided there were no grounds for relieving the appellant from his duty to present the cheques for payment within a reasonable time, such that the respondent was "not liable" and "discharged" (para. [20]).

The judge granted the respondent's motion and dismissed the action. [ 4 ] With due respect for the judge's opinion, the Court is of the view that the appellant's failure to present the cheques for payment does not result in the discharge of the respondent. [ 5 ] The cheques were bills drawn on a bank and payable on demand. The rules governing the late presentation of a cheque are set forth at s. 166 of the Act .

That provision directs that if a cheque is not presented for payment within a reasonable time, the drawer of the cheque is only discharged to the extent of the damage suffered as a result of the delay. [1] [ 6 ] There are circumstances in which a bank may treat a cheque as stale after a period of time and decline to honour it. This practice, however, does not have the consequence of discharging the drawer of the cheque from the obligation owed to his or her debtor.

Whether or not the cheque is stale does not, in itself, have a bearing on whether the underlying obligation is valid. [ 7 ] The motion to institute proceedings seeks the reimbursement of a loan. By characterizing the recourse as an "action sur cheques au montant de 50 000 $", the appellant may have mistakenly suggested that the success of his claim turned on whether the cheques would be honoured if they were presented.

In point of fact, that issue does not decide whether the respondent is indebted to the appellant based on the alleged loan. [ 8 ] Whether or not that loan was made, and whether the cheques in question give credence to that claim, are matters for the judge to decide on the merits. FOR THESE REASONS, THE COURT: [ 9 ] ALLOWS the appeal, with costs; [ 10 ] REVERSES the judgment of the Court of Quebec rendered on October 14, 2009; [ 11 ] REMANDS the file to the Court of Quebec for the continuation of the proceedings. FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. NICHOLAS KASIRER, J.A.