2021 QCCA 1772, 2021 QCCA 1772

Digiulian c. Ann-Greene (Succession de Digiulian) 2021 QCCA 1772 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029709-219 ( 700-17-015720-187 ) MINUTES OF HEARING DATE: November 26, 2021 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. STEPHEN W. HAMILTON, J.A. MICHEL BEAUPRÉ, J.A. APPLICANTS COUNSEL SASHA DIGIULIAN JOHN CHARLES DIGIULIAN Mtre MATTHEW MELAND ( Greenspoon Winikoff ) Absent RESPONDENTS COUNSEL PATRICIA ANN-GREENE , in her capacity as liquidator of the ESTATE THE LATE RITA E. DIGIULIAN (BEARZATTO) and in her capacity as trustee to the REVOCABLE LIVING TRUST OF RITA E.

DIGIULIAN Mtre ADAM EIDELMANN ( Eidelmann Avocat ) Absent DIANE LOUISE WAGNER Mtre ANTOINE AYLWIN ( Fasken Martineau DuMoulin ) IMPLEADED PARTIES COUNSEL ANDREA LYNNE DIGIULIAN Mtre MATTHEW MELAND ( Greenspoon Winikoff ) Absent

LEONARD DIGIULIAN ROBERT DIGIULIAN MALONEY AND YURACHEK P.C. ABSENT AND UNREPRESENTED DESCRIPTION: Application for leave to appeal after the expiry of the time limit of a judgment rendered on August 4, 2021 by the Honourable Jean-François Michaud of the Superior Court, District of Terrebonne (Articles 31(2), 357 and 363 C.C.P. ). Clerk at the hearing : Anne Dumont Courtroom: Pierre-Basile-Mignault HEARING 9:35 Commencement of the hearing. Continuation of the hearing held on November 22, 2021 The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 4. Conclusion of the hearing.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] By their application filed on September 28, 2021, Sasha and John Charles DiGiulian (“Applicants”) seek leave to appeal, after the expiry of the time limit, [1] from a judgement rendered on August 4, 2021, by the Superior Court of Québec, district of Terrebonne (the Honourable Jean-François Michaud). [ 2 ] At its base, this is a hotly debated dispute regarding the estate of the late Rita E. DiGiulian (“Rita”).

She died in the United States and owned many immoveable properties in the United States, Italy and Venezuela, among other foreign states, and only one in Québec, more precisely in Mont-Tremblant. [ 3 ] Applicants instituted proceedings before the Superior Court in order to (

i) declare null and void numerous wills and a trust indenture signed by Rita in Québec, in Ontario or in the United States, (ii) declare respondent Wagner unworthy of inheriting, (iii) remove respondent Ann-Greene as the liquidator of Rita’s estate and as the trustee of the trust, (iv) declare null and void dispositions of properties not made in accordance with Rita’s last wishes, (

v) order the restitution of certain properties and/or assets illegally obtained “or which were not distributed in accordance with Rita’s last wishes”, and (vi) obtain a rendering of accounts regarding the management of Rita’s estate and trust (the “demand”). [2] [ 4 ] The respondents Ann-Greene and Wagner presented a motion for declinatory exception, arguing that the Superior Court did not

have jurisdiction over these proceedings and demands. [ 5 ] The judge granted respondents’ motion in part and, essentially: - dismissed “the portion of plaintiffs’ demand that does not concern the Immoveable” [3] situated in Québec and declared that “the Québec Courts retain jurisdiction but only as far as the Immoveable is concerned;” [4] - declared that the Québec Courts “will rule on the allegations and conclusions regarding captation and the validity” of the July 15 and 28, 2011, 2013 and 2015 wills, as they were signed in Québec or because they concern the immoveable property in Québec. [ 6 ] Thus, the judge ruled that Québec Courts have no jurisdiction on Rita’s foreign properties, on her wills and last wishes that concern only those properties and on the validity of those wills.

This being said, although there is no formal conclusion in that regard, the judge also ruled that, had he made an error on the absence of jurisdiction of the Québec Courts over those issues, he would have declined jurisdiction, based on the doctrine of forum non conveniens [5] , for the reasons he explains at paragraphs 67 through 86 of the judgment. [ 7 ] According to the applicants, the judge committed five errors of law or errors of mixed fact and law, that can be summarized as follows: a. The judge erred in law by partially declining jurisdiction; b.

The judge erred in law by disregarding a previous judgment rendered by another judge on the issue of jurisdiction, thus violating res judicata ; c. The judge erred in fact and in law by acting prematurely, declining jurisdiction before the applicants could obtain all the relevant information regarding Rita’s wills, her assets and actions taken in respect thereof by respondents; d. The judge erred in fact and in law by disregarding transactions with respect to Quebec and Ontario properties, and property in Italy and Venezuela; and, e.

The judge erred in fact and in law by rendering a decision that leads to an inefficient and disproportional result, by requiring a duplication of the necessary proceedings and giving rise to potentially contradictory judgments. [6] [ 8 ] The Court concludes that the application for leave to appeal after the expiry of the time limit should be granted in part. [ 9 ] The judgment was rendered in the course of the proceedings.

As such, it may be appealed with leave if the Court considers that it determines part of the dispute or causes irremediable injury to a party. [7] That is the case as the judge’s ruling on jurisdiction cannot be remedied at trial and as all future steps regarding Rita’s estate will thus be affected by said ruling. [ 10 ] Leave to appeal must however be sought within 30 days from the date of the judgment, by filing an application in that regard with the clerk of the Court. [8] Applicants failed to do so. [ 11 ] But

article 363 C.C.P ., para. 2, provides that:

363. Les délais d’appel sont de rigueur et emportent déchéance du droit d’appel. Néanmoins , la Cour d’appel peut autoriser l’appel s’il ne s’est pas écoulé plus de six mois depuis le jugement et si elle estime que la

partie a des chances raisonnables de succès et qu’elle a, en outre, été en fait dans l’impossibilité d’agir plus tôt . Elle peut, même après l’écoulement du délai fixé, autoriser un appel incident si elle l’estime approprié. Un juge d’appel peut aussi, sur demande, suspendre les délais d’appel dans le cas où le jugement porté en appel a réservé au demandeur le droit de réclamer des dommages-intérêts additionnels en réparation d’un préjudice corporel.

Il le fait si des motifs impérieux commandent de réunir l’appel de ce jugement et celui portant sur la demande de dommages- intérêts additionnels; il détermine alors le temps et les conditions de la suspension. [Soulignements ajoutés] 363. The time limits for appeal are strict time limits, and the right to appeal is forfeited on their expiry. Nevertheless , the Court of Appeal may authorize an appeal if not more than six months have elapsed since the judgment and if it considers that the appeal has a reasonable chance of success and that, in addition, it was impossible in fact for the appellant to act earlier .

The Court may, even after the time limit has expired, authorize an incidental appeal if it considers it appropriate. An appellate judge may, on an application, suspend the time limits for appeal if the judgment has reserved the plaintiff’s right to claim additional damages for bodily injury.

The judge suspends such time limits if there are compelling reasons for an appeal against the judgment and an appeal concerning the application for additional damages to be heard together; in such a case, the duration and terms of the suspension are determined by the judge. [Underlinings added] [ 12 ] In the present matter, the judgment of the Superior Court was rendered less than six months ago and it was impossible for the applicants to act earlier than September 28, 2021, the date on which they filed their application with the clerk of the Court. [ 13 ] With regard to the chance of success of the appeal, the ground of appeal based on res judicata is doomed to failure.

In her previous judgment, Justice Poisson essentially ruled on the respondent Ann-Greene’s demand to partition the Mont-Tremblant property as a means of ending indivision. [9] Nothing in Justice Michaud’s present judgment goes against that ruling. [ 14 ] However, considering the other grounds of appeal and given the intricacies of this case as presented at the hearing, the Court is unable at this preliminary stage to conclude that the appeal presents no reasonable chance of success. [ 15 ] The appeal will thus move forward on the aforementioned grounds of appeal a, c, d and e, according to the procedural steps and modalities discussed with the parties prospectively at the hearing. [ 16 ] Given this judgment, and the nature of the litigation, the proceedings before the Superior Court will be suspended pending the judgment to be rendered by this Court.

FOR THESE REASONS, THE COURT: [ 17 ] PARTIALLY GRANTS the application for leave to appeal after the expiry of time limit; [ 18 ] LIMITS the grounds of appeal to those submitted at sub-paragraphs 17 a, c, d and e of the Application for leave to appeal after the expiry of the time limit dated September 24, 2021; [ 19 ] ORDERS the appellants, after having notified a copy upon the respondents, to file in the Office of the Court, no later than February 10, 2022 , five copies of a written argument not exceeding 15 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 20 ] ORDERS the respondents, after having notified a copy upon the appellants, to file in the Office of the Court, no later than March 23, 2022 , five copies of a common written argument not exceeding 15 pages and of their supplementary documents; [ 21 ] DIRECTS the parties’ attention to

article 376 C.C.P. and

section 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 22 ] REMINDS the parties about Practice Direction G-3 (latest revision: April 20, 2021) which strongly encourages them to attach a technological version of their brief or memorandum and their book of authorities to each hard copy of those documents.

The technological version must be saved on a USB key and must be in PDF format that allows keyword searches and includes hyperlinks from the table of contents to the brief, memorandum or book of authorities and, where applicable, from the argument to the schedules.

If the Word version of their argument is available, parties are also invited to put that version on the USB key. [ 23 ] DEFERS the file to the Master of the Roll to fix the hearing at the earliest possible date, for a duration of 90 minutes (45 minutes for the appellants, 45 minutes for the respondents); [ 24 ] SUSPENDS the proceedings before the Superior Court pending the judgment to be rendered by this Court; [ 25 ] COSTS to follow the issue of the appeal. MARIE-FRANCE BICH, J.A. STEPHEN W. HAMILTON, J.A. MICHEL BEAUPRÉ, J.A.