2012 QCCA 2192, 2012 QCCA 2192

Schnabel c. Tiffany Towers Condominium Association 2012 QCCA 2192 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023105-125 ( 500-22-177048-108 ) MINUTES OF THE HEARING DATE: December 10, 2012 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. NICHOLAS KASIRER, J.A. DENIS JACQUES, J.A. (AD HOC) PETITIONER ATTORNEY FREDA SCHNABEL Personally (absent) RESPONDENT ATTORNEY TIFFANY TOWERS CONDOMINIUM ASSOCIATION Mtre Charles-Justin Nichols (absent)

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON OCTOBER 22, 2012 BY THE HONOURABLE JUSTICE JEAN-F. KEABLE OF THE COURT OF QUEBEC, DISTRICT OF MONTREAL. Clerk: Linda Chau Courtroom: Pierre-Basile-Mignault HEARING Judgment – See page 3. Linda Chau Clerk BY THE COURT JUDGMENT

[ 1 ] Freda Schnabel asks the Court for permission for leave to appeal from a final judgment of the Court of Quebec, District of Montreal (the Honourable Judge Jean-F. Keable presiding), rendered on October 22, 2012. The judge awarded the plaintiff Tiffany Towers Condominium Association $13,838.55, with interest and the additional indemnity provided by law, for legal fees it incurred in an action on account for unpaid condominium fees and assessments brought against Ms. Schnabel. [ 2 ] Tiffany is the syndicate for an apartment building held in divided co-ownership in which Ms. Schnabel owns a fraction.

The parties' dispute is a long-standing one. Ms. Schnabel is a self-represented litigant who has a good grasp of legal matters and has shown herself to be a determined adversary in various proceedings against Tiffany. *** [ 3 ] In her petition for leave, Ms. Schnabel argues that the judge erred in granting extrajudicial legal fees as part of the compensatory damages awarded.

She says the judge was barred from so doing by reason of the doctrine of res judicata . [ 4 ] On September 22, 2010, Judge François Bousquet of the Court of Quebec ruled on a motion for a corrected judgment between the same two parties in respect of a hypothecary action brought by Tiffany Towers (reported at 2010 QCCQ 8300 ). In connection with that action, Tiffany had sought compensation for various heads of damages from Ms. Schnabel.

In the corrected judgment, Judge Bousquet denied Tiffany extrajudicial fees in accordance with his reading of articles 2761 and 2762 C.C.Q . (paragraph [35] and [36] of his reasons). Judge Bousquet explained as follows: [39] Il est possible que le syndicat des copropriétaires ait droit à des dommages-intérêts pour compenser les importants frais juridiques encourus mais le Tribunal n’est pas saisi de cette question puisqu’il doit uniquement déterminer ce qui doit être payé pour exercer le droit prévu à l’

article 2761 C.c.Q . [40] Le montant qui doit être payé en vertu de l’

article 2761 C.c.Q . pour les « frais judiciaires engagés » se limite donc au montant de la taxation du mémoire de frais. [ 5 ] Citing this judgment, Ms. Schnabel argues that the Court of Quebec erred in its October 22, 2012 judgment by awarding Tiffany extrajudicial fees. She suggests that the amounts are the same as those denied by Judge Bousquet whose judgment on this point is res judicata . *** [ 6 ] Ms.

Schnabel did not convince the Court that the trial judge erred in awarding extrajudicial fees or that he violated the doctrine of res judicata in so doing. [ 7 ] In its re-reamended motion to institute proceedings dated October 3, 2012, Tiffany sought $16,432.41 for legal fees and costs, including extrajudicial fees, incurred in respect of an action on account brought against Ms. Schnabel.

Tiffany asked for an additional $4,000 as punitive damages resulting from alleged improper proceedings brought by Ms Schnabel. [ 8 ] The judge denied Tiffany's claim for punitive damages but allowed its claim for compensatory losses suffered and proved before him. The judge distinguished between, on the one hand, compensatory damages sought by Tiffany pursuant to the rules in the Civil Code relating to divided co-ownership and the applicable provisions of the Declaration of Co-ownership, and, on the other hand, punitive damages sought pursuant to articles 54.1 C.C.P. for improper use of procedure by Ms.

Schnabel. [ 9 ] He awarded compensatory legal fees and costs, including extrajudicial fees, based on a clause of the Declaration of Co- ownership which he quoted in paragraph [3] of his reasons: In addition to any remedies or privileges provided by law in these presents, if any co-proprietor is in default in payment of an assessment levied against him for a period of fifteen (15) days, the Administrators may bring legal action to enforce collection thereof and there shall be added to any amount found due, all costs of such action, including costs as between a solicitor and his client, and any such remedies shall be in addition to and without waiving the privilege to secure them. [ 10 ] In other words, the basis of decision to award extrajudicial fees for the action on account before Judge Keable was the Declaration of co-ownership and not

article 2762 C.C.Q. as in the case of the hypothecary action before Judge Bousquet. Thus, the trial judge did exactly what Judge Bousquet had anticipated, and suggested was permissible, in the opening words of paragraph [39] of his reasons quoted above (" Il est possible que le syndicat des copropriétaires ait droit à des dommages-intérêts pour compenser les importants frais juridiques encourus […] "). The Declaration is not in conflict with

article 2762 C.C.Q., the latter dealing only with a hypothecary claim. [ 11 ] In the result, there is no res judicata . On the contrary, the two judgments of the Court of Quebec are compatible. [ 12 ] The motion for leave to appeal from the final judgment of October 22, 2012 should be dismissed because Ms. Schnabel has failed to show that the matter at issue is one that "ought to be submitted to the Court of Appeal" under

article 26 C.C.P.

FOR THESE REASONS, THE COURT : [ 13 ] DISMISSES the motion for leave to appeal, with costs. YVES-MARIE MORISSETTE, J.A. NICHOLAS KASIRER, J.A. DENIS JACQUES, J.A. (AD HOC)