2020 QCCA 1447, 2020 QCCA 1447

Spira c. Engel 2020 QCCA 1447 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029078-201 ( 500-22-239952-172 ) MINUTES OF HEARING DATE: November 2, 2020 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. JACQUES CHAMBERLAND, J.A. SIMON RUEL, J.A. APPELLANT SHALOM CHAIM SPIRA Unrepresented RESPONDENTS COUNSEL AVIVA ENGEL Mtre JEFFREY NEIL SCHWARTZ ( Schwartz Gerson Bakula ) (by videoconference) BONNIE SPIRA ALEXANDER SPIRA Mtre DAVID ETTEDGUI ( D.E.

Legal ) (by videoconference) On appeal from a judgment rendered on January 24, 2020 (rectified on February 24, 2020) by the Honourable Éric Dufour of the Court of Québec , District of Montreal . DESCRIPTION: Application of Aviva Engel to dismiss the appeal and to declare it abusive, or subsidiarily, to furnish a suretyship (Articles 30, 51, 364 and 365 and 366 C.C.P .) Application for leave to appeal after the expiry of time limit (Article 363 C.C.P .) Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING

10:38 a.m. Commencement of the hearing. Identification of counsel. 10:38 a.m. Submissions by Mr. Spira. 11:00 a.m. Recess of the hearing. 11:08 a.m. Resumption of the hearing. 11:08 a.m. By the Court: judgment – see page 3. Robert Osadchuck, Clerk at the hearing JUDGMENT [ 1 ] The Court is seized of two motions, one by Respondent Aviva Engel, to dismiss the appeal and to declare it abusive, or, subsidiarily, to have the Appellant furnish a suretyship (Application no. 6); and the other by the Appellant, for leave to appeal after the expiry of the time limit (Application no. 6.1). Application to dismiss the appeal [ 2 ] The Respondent’s grounds of contestation are: (

a) that the appeal was improperly initiated in that the value of the subject matter of the dispute in appeal ($23,312.40, plus interest and the additional indemnity) is substantially below the required threshold for an appeal without leave ($60,000, pursuant to article 30(1) C.C.P. ); and (

b) that the appeal has no reasonable chance of success and is abusive. [ 3 ] It is clear that the value of the subject matter of the dispute in appeal is considerably below the threshold of $60,000 established by the legislature for an appeal without leave. In this context, the appeal has been improperly initiated and ought to be dismissed. In addition, the Court is of the view that the appeal has no reasonable chance of success. It is clear that the judge of first instance thoroughly considered the documentary evidence presented at trial and assessed the testimony of all witnesses. The arguments raised by Mr.

Spira on appeal are in essence identical to those debated in first instance and decided by the trial judge. The conclusions that the Appellant harassed and defamed Ms. Engel were established on a balance of probabilities, and the Appellant has failed to show any palpable and overriding error in the judgment under appeal. [ 4 ] However, the Court is of the view that the appeal, albeit improperly initiated and presenting no reasonable chance of success, does not, in the circumstances of this case, constitute an abuse of procedure on the part of the Appellant within the meaning of articles 51 and following C.C.P.

Application for leave to appeal after the expiry of the time limit [ 5 ] According to

article 363 C.C.P. , the Court may authorize an appeal, even after the time limit has expired, if it considers: (

a) that the appeal has a reasonable chance of success; and (

b) that it was impossible in fact for the Appellant to act earlier, such conditions being cumulative. [ 6 ] As mentioned above, the Court is of the view that the appeal initiated by the Appellant has no reasonable chance of success. FOR THESE REASONS, THE COURT: [ 7 ] GRANTS in part Respondent Aviva Engel’s application to dismiss the appeal, with costs; [ 8 ] DISMISSES the appeal initiated by the Appellant, albeit improperly, with costs; and, [ 9 ] DISMISSES the Appellant’s application for leave to appeal after the expiry of the time limit, without costs. MANON SAVARD, C.J.Q. JACQUES CHAMBERLAND, J.A.

SIMON RUEL, J.A.