2015 QCCA 1767, 2015 QCCA 1767

Alidzaeva c. Alipoor 2015 QCCA 1767 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025652-157 (500-17-069927-120) MINUTES OF THE HEARING DATE: October 29, 2015 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. PETITIONER ATTORNEY RIMMA BRUTMAN ALIDZAEVA Mtre THOMAS KIRIAZIS (Angelopoulos & Kiriazis, s.e.n.c.) RESPONDENTS ATTORNEY MIKE TAGHI ALIPOOR AZITA ZANDIAN 9138-7894 QUÉBEC INC. 9185-4844 QUÉBEC INC. 9187-4826 QUÉBEC INC. 9249-8260 QUÉBEC INC. Mtre HUBERT LAROSE (Larose Rioux avocats)

DESCRIPTION: Motion for leave to appeal an interlocutory judgment rendered on October 13, 2015 by the Honourable Justice Claude Champagne of the Superior Court, District of Montreal Clerk: Mihary Andrianaivo Courtroom: RC-18 HEARING 14:00 Continuation of the 27th October 2015 hearing. The parties have been informed that their presence at the Court are required today. By the Judge : Judgment – See page 3.

Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] I am tasked to adjudicate a Motion for leave to appeal from a judgment rendered on October 13, 2015 by the Superior Court, District of Montreal (the honourable Claude Champagne), which dismissed the Petitioner’s Motion to amend. [ 2 ] According to the judgment, the Motion to amend was presented on the 15 th day of a hearing scheduled for 16 days and it essentially purported to: • Add 150 paragraphs to the Motion Introductory of suit that was originally before him and which sought the passing of title on a number of properties as well as damages resulting from an alleged fraud; • Seek conclusions that failed to quantify the various heads of damages; • Incorporate references that did not substantiate the new allegations; • Annul a contract concluded between the parties as well as a promissory note signed in favour of the Petitioner dating back several years; • Revise the Petitioner’s claim entirely with respect to the various immoveable properties that were the subject of the proceedings; • Seek an order of accounting to be prepared by a chartered accountant with respect to all revenues and expenses related to these properties; [ 3 ] Having stated the requirements of

article 199 C.C.P. and the need for the party seeking the amendment to proceed with diligence to avoid unfairness, the judge underlined that a Court may dismiss a request to amend which fails to respect the proper administration of justice and the rules of proportionality. He also made the observation that, at the time the last judicial contract was signed in May 2014, all parties were fully aware of all factual elements giving rise to the proposed amendments and the Petitioner was already challenging the validity of the contract (D-1).

Yet, she waited until the 15 th day of trial to seek permission to amend. [ 4 ] The judge concluded that the Motion to amend was made late and contrary to procedural fairness, and could increase the duration of the trial (perhaps twofold), not to mention a possible adjournment to allow the Defendants to prepare a written plea and file

additional exhibits, and possibly request a new examination of the Petitioner. [ 5 ] The judge exercised his discretionary powers in the context of his management of the ongoing trial. As a general rule, the Court of appeal will not intervene in such a case, unless the discretionary powers were exercised improperly or abusively. [ 6 ] While the judgment does fulfill the requirements of

article 29 C.C.P. , in that, by the denying the Petitioner the right to amend, it orders something that will not be remedied by final judgment, the Petitioner fails to demonstrate that the criterion of

article 511 C.C.P. is also met i.e. that the ends of justice would justify granting leave to appeal. [ 7 ] It is a well established principle that a party’s right to amend must be decided in light of the judicial contract of the parties and the rules of proportionality [1] . The Petitioner fails to show that the trial judge exercised his discretionary power in an improper or abusive manner, in circumstances, that would justify granting leave to appeal [2] . THEREFORE, THE UNDERSIGNED: [ 8 ] DISMISSES the Motion for leave to appeal of an interlocutory judgment; [ 9 ] WITH COSTS. GENEVIÈVE MARCOTTE, J.A.