2016 QCCA 2011, 2016 QCCA 2011

Friedrich c. Friedrich 2016 QCCA 2011 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026474-163 (500-17-053417-096) MINUTES OF THE HEARING DATE: December 13, 2016 THE HONOURABLE MARIE-FRANCE BICH, J.A. APPLICANT COUNSEL KARL UWE FRIEDRICH Mtre SHARON CITROM (Le Groupe Juridique

W) RESPONDENTS COUNSEL MICHAEL FRIEDRICH and ASTRID FRIEDRICH Mtre AVERY BARRY COLEMAN DESCRIPTION: Application for provisional execution. (Art. 355 and 661 C.C.P.) Clerk: Marcelle Desmarais Courtroom: RC-18

HEARING 9 : 30 Continuation of the hearing of December 12, 2016. Judgement – see page 3. Marcelle Desmarais Clerk BY THE JUDGE JUDGMENT [ 1 ] By judgment dated September 16, 2016 (notice of which is dated October 25, 2016), the Honourable David R.

Collier, J.S.C. decided as follows: FOR THESE REASONS, THE COURT: [29] AUTHORIZES Karl Friedrich to sell the Gouin property at a price of $400,000, and to execute the sale on behalf of the three co-owners; [30] AUTHORIZES Karl Friedrich to sell the Duhamel property at a price of $205,000 and to execute the sale on behalf of the three co-owners; [31] DISMISSES Michael and Astrid Friedrich’s application to reject an evaluation and to appoint a new evaluator; [32] DISMISSES Michael and Astrid Friedrich’s application to purchase the Gouin and Duhamel properties; [33] GRANTS Karl Friedrich’s application for abusive proceedings; [34] CONDEMNS Michael and Astrid Friedrich solidarily to pay damages to Karl Friedrich in the amount of $5,000, with interest at the legal rate and the additional indemnity from the date of the present judgment; [35] THE WHOLE with costs of justice to Karl Friedrich. [ 2 ] The respondents, who are the co-owners of the above-mentioned properties, [1] gave notice of appeal of this judgment on November 24, 2016.

According to the applicant, they should have sought – and obtained – leave to appeal, which they did not. This is not for me to decide, but for the Court (which could be seized with an application to dismiss the appeal based on that ground, pursuant to

art. 365 C.C.P.). * * [3] In what must be considered an amended application for provisional execution,[2] dated December 7, 2016, the applicant,pursuant to art. 661 C.C.P., seeks the following: GRANT this application; ORDER to the appellants to execute the judgment rendered on September 16th, 2016 by the Honourable Justice David R.

Collier of theSuperior Court, District of Montreal, in file number 500-17-053417-096; CONDEMN Appellants solidarily to pay all extra-judicial fees suffered by Respondent in relation to the preparation and presentation ofthe present proceeding in the present matter in Appeal; ALLOW Respondent to supply the Court with the total amount of extra-judicial fees claimed within 5 days of the presentation of thepresent Application, by depositing a statement of account with the Court clerk. [4] However, in view of its allegations, which focus on the sale of the two properties mentioned in paragraphs 29 and 30 of CollierJ.’s judgment (supra, para. [1]), and mostly the Duhamel property, it is to be understood that the application seeks provisional executionin that respect only. * * [5] Art. 661 C.C.P. states that: 661.

Lorsque le fait de porter une affaire enappel risque de causer un préjudice sérieux ouirréparable à une partie, le juge peut, surdemande, ordonner l’exécution provisoire,même partielle; il peut aussi subordonnerl’exécution provisoire à la constitution d’unecaution. 661. If bringing an appeal is likely to causeserious or irreparable prejudice to one of theparties, the judge may, on an application,order provisional execution, even for part onlyof the judgment. The judge may also makeprovisional execution conditional on a suretybeing furnished.

Si l’exécution provisoire n’est pasordonnée par le jugement lui-même, elle nepeut plus l’être qu’en appel, avec ou sanscaution. Un juge de la Cour d’appel peut aussila suspendre ou la lever lorsqu’elle a étéordonnée, ou encore assujettir la

partie qui ena été dispensée par le tribunal de premièreinstance à fournir un cautionnement. If provisional execution is not orderedby the judgment itself, it cannot be orderedsubsequently except on appeal, with orwithout a surety.

A judge of the Court ofAppeal may also stay or lift provisionalexecution if it has been ordered, or order that asuretyship be provided by a party that wasexempted from doing so by the court of firstinstance. [Emphasis added] [6] In order to demonstrate that the appeal is likely to cause him a serious or irreparable prejudice, the applicant needs to adduceevidence thereof, which, as explained by my former colleague Paul-Arthur Gendreau, J.A., must be done in the following manner: Cela dit, il appartient au requérant, intimé en appel, de faire la démonstration des faits qui autoriseraient un juge d'exercer ce pouvoirdiscrétionnaire.

En raison du caractère particulier du remède recherché, il doit, pour satisfaire son fardeau, dépasser le stade desallégations vagues, générales ou hypothétiques et étayer son dossier de faits précis, clairs et concrets. Pour cela, puisque la Cour n'est pasune instance de procès, il devra soumettre affidavits et documents, seule façon de présenter une preuve en appel, sauf circonstances trèsexceptionnelles. À ce sujet, je ne vois aucune différence avec la façon de faire que j'ai suggérée dans l'arrêt Camino Del Sol c. BanqueRoyale du Canada ( (1994) (QC CA), R.J.Q. 23 ).

Il va de soi que l'appelant peut, de son côté, et de la même manière,répondre aux allégations de son adversaire.[3] [7] Justice Gendreau was dealing with an application to stay provisional execution, under the former Code of Civil Procedure,[4]but the same rule applies here mutatis mutandis, in light of the third paragraph of art. 101 C.C.P. [8] However, the applicant filed no affidavit in support of his application, whether in its initial or amended version. There actuallywas an affidavit signed by his counsel, but this was clearly insufficient to establish facts to which only he can personally attest.

Suchfacts, for instance, are alleged in paragraphs 15 (the offers that were pending at the time of the judgment “are still valid and on hold topresent date”), 18 (“[t]he buyer of the Duhamel property is still impatiently waiting to close on the property”), 19 (“[t]he Duhamelproperty […] is in urgent need of a new roof […]” and “[i]f repairs are not done before snow fall accumulates, the property will likelysuffer substantial damages to the interior”, a theme which is developed in paragraphs 20 and 21 of the amended application.

As a matterof fact, the very existence, nature and extent of the prejudice must be attested to by the applicant or proven otherwise. [9] It is also worth noting that the applicant did not file on his own certain documents useful to the adjudication of his application.For instance, the offer to purchase the Duhamel property was filed only after I asked the applicant’s counsel to provide a copy thereof, atthe hearing, while the offer to purchase the Gouin property was found in the compendium filed by the respondents’ counsel, also at thehearing.

Both offers set time limits that are long past[5] and nothing, except the unsupported allegations to be found in the application,indicates that the buyers are still willing to purchase the properties, as they were last September, at the time of the hearing before CollierJ. [10] Needless to say, the respondents, through counsel, were prompt to point out that, without a proper affidavit, i.e. that of the

applicant himself, the application should be dismissed. Subsidiarily, they also argued that the application was without merit whatsoever in view of the many irregularities affecting the judgment.

Finally, they also requested, orally, that the application be declared abusive and, consequently, that the applicant be condemned to damages ( i.e. extrajudicial fees incurred in order to defend against his application). [ 11 ] The applicant’s counsel, however, had a card up her sleeve, and, in reply, she asked permission to file an affidavit dated December 8, 2016 and signed by her client, stating that: “I have read the facts alleged in the Application for provisional execution, which are true”.

Needless to say, counsel for the respondents strongly objected to that late filing, which would deprive him of his right to cross- examine the applicant. [ 12 ] At the hearing, I agreed to the filing of the affidavit but under reserve. [ 13 ] After due consideration, I will not allow its filing in the record, considering its utter lateness and the manner in which it was tendered, which were not satisfactorily explained nor properly justified (general references to the Superior Court record being obviously insufficient) [6] .

Deciding otherwise, in the circumstances, would infringe upon the respondents’ right to cross-examination. [7] [ 14 ] For this reason alone, the application should be dismissed. [ 15 ] I would add, however, that had I allowed the affidavit to be filed, I would still have dismissed the application, which does not establish a prejudice of the kind described in art. 661 C.C.P. , considering that the respondents, were their appeal successful, would buy both properties at the price set out in Collier J.’s judgment.

On the other hand, were provisional execution ordered, the appeal, on that point, would likely become moot. [ 16 ] One can sympathize with the applicant, who was authorized to sell the properties by judgment of the Superior Court in December 2015, upon certain conditions that could not be met, partly because of the respondents’ conduct, hence the ongoing dispute between the parties.

This, however, is not, in the present case, sufficient to grant provisional execution where the trial judge did not. [8] * * [ 17 ] Finally, I shall also dismiss the respondents’ verbal application for damages, which is based on an alleged procedural abuse that does not exist, despite the mistake made by the applicant’s counsel. Furthermore, it appears from the judgment appealed from that the hands of the respondents may not be quite as clean as they represent. In that context, I cannot conclude that the application for provisional execution was abusive.

FOR THE AFOREMENTIONED REASONS, [ 18 ] The application for provisional execution IS DISMISSED , with legal costs to the respondents; [ 19 ] The respondents’ verbal application for damages IS DISMISSED , without legal costs. MARIE-FRANCE BICH , J.A.