2019 QCCA 1362, 2019 QCCA 1362

HEARING Toronto-Dominion Bank c. Pourshafiey 2019 QCCA 1362 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027780-188 ( 500-17-074476-121 ) MINUTES OF HEARING DATE: August 8, 2019 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPELLANT/INCIDENTAL RESPONDENT COUNSEL the toronto-dominion bank Mtre Sébastien Cusson ( McCarthy Tétrault s.e.n.c.r.l., s.r.l. ) RESPONDENTS/INCIDENTAL APPELLANTS COUNSEL Hossein pourshafiey 4291921 Canada Inc. Mtre Alan M. Stein ( Alan M.

Stein ) DESCRIPTION: Respondents’/incidental appellants’ Application for permission to present supplementary evidence to form part of the joint record and factum, and authorization from the Court of appeal to produce an account of legal services rendered to date arising from this appeal in accordance with the claim in the incidental appeal that will include an estimate of future fees foreseeable (art. 378 C.C.P. ) . Clerk at the hearing : Stephane Robinson Courtroom: RC-18 9:33 Commencement of the hearing.

Identification of counsel. 9:33 Submissions by Mtre Stein. 9:34 The Motion is not contested. 9:35 Discussion between the Judge and Mtre Stein.

9:36 The Judge informs Counsel that he does not have jurisdiction over an Application to present new indispensable evidence and offers to Defer the motion to the Bench that hears the appeal. Counsel agrees to the Judge’s proposal. 9:39 Discussion between the Judge and Mtre Cusson. 9:40 Discussion between the Judge and Mtre Stein. 9:43 BY THE JUDGE : Judgment will be rendered in the course of the day and will be inserted in the minutes of the hearing – see page 3. 9:43 Conclusion of the hearing.

Stephane Robinson, Clerk at the hearing BY THE JUDGE JUDGMENT [ 1 ] The Respondents (who are also Incidental Appellants) make a motion for permission to produce : (1) the transcript of the rebuttal evidence at trial of the Respondent Hossain Pourshafiey, and (2) an account of the legal services rendered to date arising from the appeal including an estimate of foreseeable future fees. [ 2 ] With respect to the transcript, they explain that they were under the impression that the Appellant had produced the rebuttal evidence and that it only recently came to their attention that the Appellant had not done so. [ 3 ] With respect to the account for legal services, they explain that their incidental appeal includes a claim for the additional professional fees resulting from the appeal.

They had advised the Appellant that they would be making a motion to the Court to authorize the production of an account of legal services rendered and an estimate of future fees closer to the date of the hearing. [ 4 ] The Appellant consents to the motion. [ 5 ] A judge of the Court does not have jurisdiction to authorize the filing of new evidence (Art. 380 C.C.P. ). The filing of additional evidence from trial that was omitted from the record by mistake is not a question of new evidence and I will allow it. [ 6 ] However, the account for legal services is new evidence.

I will defer that part of the motion to the panel that will hear the appeal on the merits. In the meantime, the Respondents must file on or before September 30, 2019, an amended motion presentable before the panel together with the evidence that they wish to produce, which I assume will include the account and a sworn declaration from the lawyer. Any cross-examination of the declarant must take place before the hearing on the merits, either by consent or pursuant to an order of the Court.

FOR THESE REASONS, THE UNDERSIGNED: [ 7 ] GRANTS the Application in part; [ 8 ] AUTHORIZES the Respondents to produce the transcript of the rebuttal evidence at trial of the Respondent Hossein Pourshafiey; [ 9 ] DEFERS the motion for permission to produce an account for legal services arising from the appeal to the panel that will hear the appeal on the merits; [ 10 ] ORDERS the Respondents to file on or before September 30, 2019, an amended motion for permission to produce the account for legal services presentable before the panel that will hear the appeal on the merits together with the evidence that they wish to produce; [ 11 ] THE WHOLE , with judicial costs to follow.

STEPHEN W. HAMILTON, J.A.