2022 QCCA 1311, 2022 QCCA 1311

Sigounis c. Sigounis 2022 QCCA 1311 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030205-223 ( 500-11-052150-170 ) MINUTES OF HEARING DATE: September 27, 2022 THE HONOURABLE PETER KALICHMAN, J.A.

APPLICANT COUNSELS ARGYRO SIGOUNIS Mtre DOMINIQUE ZAURRINI Mtre LéO DI BATTISTA ( Zaurrini Avocats ) Absents RESPONDENTS COUNSEL DIMITRIOS (JIMMY) SIGOUNIS Mtre LOUIS-george BRUNET ( Gagnon, Brunet, Kilani ) Absent ELENI MAKRIDIS (SIGOUNIS), in her capacity as Liquidator of the Estate of the Late Nicolas Sigounis and in her capacity as designated Particular and Universal Legatee in virtue of the Last Will and Testament of the Late Nicolas Sigounis and subject to the decision to exercise an option with respect to the Estate of the Late Nicolas Sigounis Mtre ROBERT PANCER ( Phillips Friedman Kotler ) Absent IMPLEADED PARTIES COUNSEL

AMALIA SIGOUNIS 114753 CANADA INC. 114754 CANADA INC. 136585 CANADA INC. CHENOY DELICATESSEN & STEAK HOUSE INC. CHENOY DELICATESSEN & STEAK HOUSE

(1976) LTD. CHENOY FOOD NETWORK INC. N.K.D.S. CONSULTANTS & INVESTMENTS INC. ABSENT AND UNREPRESENTED DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on August 22 nd , 2022 by the Honourable Michel A. Pinsonnault of the Superior Court , District of Montreal . Clerk at the hearing : Ariane Simard-Trudel Courtroom: RC-18 HEARING 9:30 Commencement of the hearing. Continuation of the hearing held on September 23, 2022. The parties were excused from appearing in Court. BY THE JUDGE : Judgement – see page 4. Conclusion of the hearing.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT [ 1 ] I am seized with a Motion for leave to appeal a judgment rendered on August 22, 2022, by the Honourable Michel A. Pinsonnault of the Superior Court, refusing an application for recusation. [ 2 ] The background against which the application was presented is summarized in the paragraphs below. [ 3 ] In 2017, the Respondent, Dimitrios (Jimmy) Sigounis (the Brother ), brought oppression proceedings before the Superior Court

claiming that his rights as a shareholder in a group of companies (the Chenoy Group ) were being unfairly disregarded by his sister, Argyro Sigounis (the Sister ) and his father, Nicolas Sigounis (the Father ).

The Brother sought the liquidation and dissolution of the various companies forming part of the Chenoy Group. [ 4 ] The Sister and the Father contested the Brother’s application and proposed instead to purchase his interest in the Chenoy Group. [ 5 ] In 2017, Justice Pinsonnault was designated as the case-management judge in the file. [ 6 ] Following the Father’s death, it came to light that he had transferred his interest in the Chenoy Group to the Daughter.

His wife, Eleni Makridis (Sigounis), in her capacity as liquidator to the Father’s estate (the Estate) , sought to intervene in the oppression proceedings and, by means of a defense and cross-demand, to seek the cancellation of the transfer of shares from the Father to the Daughter.

This was also one of the conclusions sought by the Brother by means of a paulian action. [ 7 ] By judgment dated October 6, 2021, the judge allowed the Estate to intervene and to file its defense and cross-demand (the October 6, 2021 Judgment ). [ 8 ] On March 18, 2022, the judge rendered his judgment granting the Brother’s oppression application (the March 18, 2022 Judgement ). In the judgment, he indicated that the Estate’s defense and cross-demand and the Brother’s paulian action, which he defined jointly as the Outstanding Issues , would proceed before him at a later date.

The March 18, 2022 Judgment was made executory notwithstanding appeal. [ 9 ] The Daughter appealed the March 18, 2022 Judgment and brought an application to suspend provisional execution, which the Court granted except insofar as the Outstanding Issues were concerned (the June 2, 2022 Judgment ). [ 10 ] The judge then summoned the parties to a management conference in order to proceed with the hearing on the Outstanding Issues. Several weeks after that, on June 23, 2022, the Daughter filed an 18-page declaration setting out the grounds upon which she sought his recusation.

The judge refused to recuse himself and the Daughter, thus, brought her application, which the judge heard on July 5, 2022. [ 11 ] The judge held that the Daughter failed to raise serious grounds for recusation and dismissed her application. He indicated that nothing in either the October 6, 2021 Judgment or the March 18, 2022 Judgment created a reasonable apprehension of bias. [ 12 ] The Daughter argues that the judge erred in refusing to recuse himself. The grounds invoked are summarized below: i.

In rendering the March 18, 2022 Judgement, the judge gave an opinion on the Outstanding Issues, even though the hearing on those issues had yet to take place. More specifically, he expressed his opinion on the solvency of the Estate and the legality of the transfer of shares from the Father to the Daughter, both of which are to be decided as part of the Outstanding Issues. It is clear, she argues, that he will annul the transfer of shares to her by her Father because he has made factual conclusions in this regard; ii.

In the October 6, 2021 Judgment, the judge demonstrated his bias by disregarding different provisions of the C ivil Code of Quebec and of the Civil Code of Procedure in permitting the Estate to intervene in the proceedings and to file a defense and cross- demand; iii. By indicating in the March 18, 2022 Judgment that the proposed buy-out of shares by the Daughter is not a logical and equitable solution to remedy the oppression, the judge demonstrated his bias from the outset of the proceedings; iv.

By indicating in the March 18, 2022 Judgment, that representations regarding possible procedural abuse by the Daughter would be addressed in the context of the hearing of the Outstanding Issues, the judge demonstrated his bias. Furthermore, in his judgment dismissing the application for recusation, he indicates that the issue of abuse will not be heard as part of the Outstanding Issues but is, rather, subject to the pending appeal of the March 18, 2022 Judgment; and v.

The judge erred in concluding that the Daughter had failed to bring her motion for recusation without delay. *** [ 13 ] A decision rendered on an application for recusation may be appealed with leave of a judge of the Court of Appeal. [1] Leave to appeal such a decision is governed by the criteria set out in

article 31 C.C.P . Accordingly, an applicant must demonstrate that the judgment determines in part the dispute or causes irremediable injury to a party, and that the proposed appeal is in the interests of justice in that it merits the attention of the Court, has a reasonable chance of succeeding and is consistent with the principles of proper case management and of proportionality. [2] As has been decided on numerous occasions, a judgment rendered on an application for recusation is considered to cause irremediable injury to a party. [3] [ 14 ] The Daughter has failed to convince me that she has a reasonable chance of succeeding in her appeal. Accordingly, leave will not

be granted. [ 15 ] In regards to the question of whether the judge has expressed an opinion on an issue he has yet to hear, there is no doubt that there is overlap between the facts at issue in the oppression case and those that are part of the Outstanding Issues. The judge had already ruled that the two questions would be the subject of separate hearings, but that the evidence from the first would form part of the record in the second.

As a result of this order – which was not appealed – it ought to have been clear to the parties that the judge would have to address facts relating to the Outstanding Issues when ruling on the Brother’s oppression claim and this is indeed what he did. That said, he did not express an opinion on the Outstanding Issues, the principal thrust of which involves the question of whether or not due consideration was given for the Father’s shares in the Chenoy Group.

In fact, the judge made very clear in paragraphs 81 and 263 of the March 18, 2022 Judgment that he was not expressing an opinion on the validity of the share transfer from the Father to the Daughter. The fact that certain facts relevant to both analyses overlap does not demonstrate the contrary. [ 16 ] As far as the second and third grounds are concerned, the Daughter has failed to demonstrate anything that would substantiate a reasonable apprehension of bias. She may believe that the judge has demonstrated a bias, but her subjective appreciation cannot be the basis for recusation.

The question is not what she concludes but rather what “ would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude”. [4] [ 17 ] With respect to the fourth ground regarding the judge’s decision to have the issue of possible abuse decided as part of the hearing on the Outstanding Issues, there is simply no basis for an allegation of bias.

Furthermore, the judgement indicates that the hearing on the Outstanding Issues will not deal with the question of abuse and appears to be consistent with the June 2, 2022 Judgment because this issue is not part of the Outstanding Issues; it was merely to be heard at the same time. [ 18 ] Finally, while the judge made references to the Daughter having failed to raise the issue of recusation at the first available opportunity, it does not appear to be among his reasons for dismissing the application.

At any rate, even if he had wrongly decided this issue – and I express no opinion on this question – such an error would not be determinative since the principal thrust of his reasoning is that the Daughter had failed to raise a serious ground for recusation and, as was indicated above, her appeal on this ground has no reasonable chance of success. FOR THESE REASONS, THE UNDERSIGNED: [ 19 ] DISMISSES the application for leave to appeal with legal costs. PETER KALICHMAN, J.A.