2024 QCCS 181, 2024 QCCS 181

Succession de Mercier 2024 QCCS 181 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL No.: 500-17-105614-187 500-17-122881-223 DATE: January 25, 2024 _____________________________________________________________________ BY THE HONOURABLE marie-claude rigaud, J.S.C. _____________________________________________________________________ No.: 500-17-105614-187 IN THE MATTER OF THE ESTATE OF THE LATE DOROTHY MERCIER RAYMOND CHABOT INC., ès-qualité liquidator of the Estate of Dorothy Mercier Plaintiff v.

THE ESTATE OF THE LATE PEARL GWYNETH MERCIER LAPRISE Defendant No.: 500-17-122881-223 RAYMOND CHABOT INC. Plaintiff v. THE ESTATE OF THE LATE PEARL GWYNETH MERCIER LAPRISE Defendant THE OFFICER FOR THE LAND REGISTRY FOR THE MONTREAL REGISTRATION DIVISION Impleaded _____________________________________________________________________ REVOCATION JUDGMENT _____________________________________________________________________ Context [ 1 ] This case illustrates the importance of protecting the fundamental right to be heard over the stability of judgments.

It stands for the proposition that judgments must not only adjudicate claims, but they must also promote and ensure fairness so as to prevent a denial of justice. The right to be heard is a pillar of our justice system.

Without it, the proper administration of justice would become illusory. [ 2 ] The Court is seized with Defendant’s application dated May 23, 2023, in revocation of a judgment in action for damages rendered by default on May 3, 2021 ( Judgment ), [1] which Defendant argues is null ab initio as it was rendered in violation of the principle of audi alteram partem , and more specifically in violation of the right to be heard of an incapable and vulnerable elderly woman, now deceased.

The Judgment was obtained following an action taken by members of her family, namely her daughter, the latter’s spouse and the couple’s two adult children. [ 3 ] At the hearing, the Court was also presented with Plaintiff’s application dated April 24, 2023, to dismiss the defence in the context of the Demand for Surrender and Taking in Payment of an Immoveable ( Action in Surrender ), [2] and have it declared abusive. After a brief discussion on that issue, Plaintiff agreed to postpone the adjudication of that application to after a decision has been

rendered on the application for revocation. BACKGROUND FACTS [ 4 ] Penny was born in 1926 and was married to Philippe Louis Laprise for 42 years. The couple had three children, David, Scott & Charlene, who were raised in the family’s residence at [...] in Town of Mount Royal ( [Street A] residence ). [ 5 ] Of the three children, only David who lives in Toronto, was in regular contact with Penny and attended to her needs even though he lived out of town. David now acts as provisional liquidator of his mother’s estate. [ 6 ] Charlene, who is married to Reginald’s, was completely estranged from her mother.

She lived in Westmount, with the couple’s two adult children, Evan and Alexa Weiser. [ 7 ] Scott has lived in China since the 90’s and only saw his mother three times in 30 years, the last time in 2016.

He was unaware that his mother had passed away in 2021 and did not attend her funeral. [ 8 ] In November 2016, Penny was discovered in her [Street A] residence in urgent need of care, was admitted to the Geriatrics ward of the Jewish General Hospital and later placed in Residence Lev-Tov ( Lev Tov ) for the elderly in April 2017, where she passed in 2021. [ 9 ] Only weeks before this sad discovery, Charlene, her husband and their two children had taken steps to have Penny removed as liquidator of her predeceased sister, Dorothy Mercier’s succession. [3] [ 10 ] A safeguard order was rendered, and Raymond Chabot Inc. (the Plaintiff) was appointed by the Court to act as liquidator of the succession of Dorothy Mercier. [ 11 ] While it is not clear how Penny was served given her condition, what is undisputed is that Penny’s fragile and vulnerable health was unquestionably known to her family members living in Montreal, namely Charlene and her spouse.

In fact, on December 8, 2016, Charlene sent an email to her brother David stating that their mother would be declared incompetent. [4] [ 12 ] In March 2017, a three-year treatment and hospitalization order regarding Penny was issued by the Superior Court who declared her to be inapt. [5] [ 13 ] In addition, on October 10, 2018, Penny was evaluated for competency by her doctor who determined that she was totally and permanently incapable of managing her person and of exercising her civil rights. [6] [ 14 ] On November 15, 2018, a psychosocial report was issued following interviews conducted with Penny’s three children, including Charlene, who were clearly aware of their mother’s condition and of the nature of the process conducted by Ms.

Lucht, the social worker who authored the report. [7] [ 15 ] On November 21, 2018, astonishingly, Plaintiff in his capacity as liquidator of Dorothy Mercier, acting on instructions from Charlene, her husband Reginald and their two children, served Penny with an Originating Application for Damages ( Application for Damages ) which led to the Judgment for which revocation is now being sought. [8] [ 16 ] When Penny was served at Lev Tov, there is no doubt once again that all concerned knew that she was fully incapacitated, and that no protective regime was in place at the time to respond to the Application for Damages. [ 17 ] It should be said that no protective regime was put in place throughout the year 2019 following the Lucht psychosocial evaluation, [9] nor in 2020 when the Covid pandemic started. [ 18 ] According to David, this can at least be partly explained by the discovery, in 2018, of a possible mandate in case of incapacity which Penny had purportedly signed in 2006 in the presence of her son Scott during one of his rare visits to Montreal.

Penny had seemingly appointed him as attorney and representative in case of incapacity. [10] The mandate was never homologated, and it is not contested that Scott never looked after his mother in any way. [ 19 ] By March 11, 2019, the case against Penny in this case had been inscribed to be heard by default. Reginald filed two sworn statements, dated May 21 and June 8, 2020, to secure the Judgment against Penny. [ 20 ] In December 2020, Penny contracted Covid.

Given her health condition, it was becoming even more pressing to have to a protective regime put in place for her. [ 21 ] David took it upon himself to have his mother undergo a new medical evaluation, [11] which confirmed a worsening of her condition and her total and permanent inability to manage her person and exercise her civil rights. [12] [ 22 ] Penny also underwent a second evaluation by social worker Esther Silver from January to May 2021. [13] [ 23 ] Reginald and Charlene were once again directly involved in the psychosocial evaluation with Ms. Silver having had telephone and email contacts with her.

They were fully aware that Penny was totally incapable and knew that no regime had yet been put in place . [ 24 ] Plaintiff, acting on the instructions of Reginald and Charlene, proceeded to obtain a judgment by default on May 3, 2021, two weeks only after the issuance of the Silver psychosocial evaluation which stated: The assessment to homologate Ms. Mercier’s mandate was initiated by David in December 2020. This is the second assessment that has

been requested by David as the first assessment was completed in November 2018 but it did not proceed. According to David, the notary that was handling the dossier at that time did not follow up with depositing the documents as was required and held back with documentation that David believes he should have been aware of. As such, David expresses that he has relaunched the process. Ms. Mercier is a 95 year old woman who is fully dependent upon caregivers for all activities of daily living and to ensure that her needs and wants are attended to.

She has recently been transferred from RI Lev Tov to CHSLD MHGC as her care needs have become greater. Her illness has progressed, with the recent diagnosis being “Mixed dementia with behavioural and psychological manifestations-severe” as noted by Dr. Robin Coombs (January 2021). This evaluator has determined that Ms. Mercier cannot ensure that her own needs are met in a proper fashion , nor is she able to contribute to attending to her own needs . She is unable to ask for services or advocate on her own behalf. Ms.

Mercier is unable to assess for safety and thus cannot be relied upon to ensure that she is safe, secure, and protected. In light of her current situation, this evaluator is of the opinion that Ms. Mercier can make choices when options are provided to her regarding non-critical issues, such as selecting which snack she wants, however she is unable to make decisions that have serious or impacting consequences. In terms of Ms. Mercier’s ability to fully exercise her civil rights, the evaluator is of the opinion that she is unable to make informed decisions .

She lacks full, and even partial, comprehension of the subjects and resulting impacts and thus is unable to make informed decisions . Regarding the administration of property and Ms. Mercier’s cognitive status (and supported by the diagnosis posited by Dr. Coombs), she does not have an understanding of the notion of a contract nor the responsibilities inherent in a contract . She is completely unable to manage her affairs . It is this evaluator’s opinion that it is unfortunate that James Scott has not participated in the current evaluation process.

Given his absence, the recommendations that follow will reflect his absence. As David has been assuming responsibility for his mother’s person to date , and with the agreement of Charlene, this evaluator is of the opinion that he should continue to be responsible for her “person”. David has clearly indicated that he does not want to have any contact with his siblings. He is thus proposing that his mother’s portfolio be handled by Royal Trust, with his not being implicated in the administration and management of her finances.

Charlene does not support this outcome, due to her feeling mistrustful of her brother, and proposes a private trustee or neutral third-party trust as the desired administrator for her mother’s “property”. Based on meeting with Ms.

Mercier, contact with David, Charlene, speaking with collaterals, and reviewing the medical report, this evaluator’s opinion is as follows: • Regarding the degree of incapacity with respect to the protection of the person and exercise of her civil rights: Total incapacity, which is permanent in nature in that it will not improve. • Regarding the degree of incapacity with respect to the protection of the property: Total incapacity, which is permanent in nature in that it will not improve [14] . (Emphasis added) [ 25 ] Penny died two months later, on August 11, 2021.

Her own succession became contentious because of the mandate naming Scott as her representative and liquidator and sole heir of her succession.

Scott, who lived and continued to live in China at the time, had not seen nor spoken to his mother since 2006, the year when such documents were signed, was unaware of her passing, did not attend the funeral and did not take any action regarding the administration of the succession. [ 26 ] On October 4, 2021, Reginald wrote to David regarding the 2006 documents, acknowledging that he was aware of Penny’s poor mental health as late back as 2006. [15] You may or may not be aware that Scott came into town to meet with your mother and he arranged for with her to change the Will on that visit.

Your mother was not in great mental health as per witnesses . Are you in interested in challenging the Will together.

Reg (Emphasis added) [ 27 ] After having commenced proceedings on April 22, 2022, to set aside the will [16] and to be appointed as provisional liquidator of Penny’s succession, the Court rendered judgment on provisional measures by consent appointing David. [17] [ 28 ] On May 11, 2022, Me Nazem, who represents the grandchildren in File 228 and Plaintiff in File 187, wrote to the attorneys for Penny’s Estate Action, informing them of the Judgment and stating that his clients intended to collect on the amounts ordered. [ 29 ] On August 5, 2022, lawyers for the Penny Estate Action indicated that any such action would be contested considering the nullity of the Judgment stemming from the violation of Penny’s right to be heard. [18] [ 30 ] Despite this correspondence, Plaintiff filed an action in surrender in File 223. [19]

Application for revocation [ 31 ] Today, Defendant asks that the Judgment be revoked and declared unenforceable for absolute nullity in violation of the most basic principle of natural justice: the right to be heard of a vulnerable person. The application for revocation is brought pursuant to articles 345 and 346 C.C.P. During the hearing, Defendant also argued for the applicability of

article 349 C.C.P. [ 32 ] Defendant maintains that because of the violations of Penny’s right guaranteed under sections 4, 6, 23 and 48 of the Quebec’s Charter of Human Rights and Freedom s, it is also entitled to request that the Plaintiff be condemned to pay the costs for presenting the application. [ 33 ] Defendant submits that the egregious procedural irregularities and violations of Penny’s rights suffice for the purposes of the revocation such that no defence against the merits of the originating application is needed. [ 34 ] In any event, Defendant argues that given the circumstances of this case and Penny’s incapacity at the time of service, it would have been impossible to formulate any kind of defence because of the said procedural irregularities for which Plaintiff (and Reginald) must be held accountable.

Had Penny been properly represented or been subject of a protection regime back in 2018, a proper defence could have arguably been formulated on her behalf. [ 35 ] For all these reasons, Defendant also argues that the originating application for damages must be dismissed, together with the Action in Surrender. 1.

Defendant’s position [ 36 ] Defendant argues that it could not have acted any earlier because despite various efforts, there was no regime in place to represent Penny in the exercise of her civil rights from the moment the originating application was served upon her in November 2018 until the Judgment was rendered by default on May 3, 2021.

Defendant further points out that there was no regime in place for the months following the Judgment until Penny’s death on August 11, 2021. [ 37 ] After Penny passed away, there was, in law, an ambiguous period following the discovery of the will which Defendant argues was signed in suspicious circumstances and which led to the taking of the Penny Estate Action in April 2022, and later the judgment appointing David as liquidator of Penny’s succession. [20] [ 38 ] Invoking concerns with proportionality, Defendant maintains that it did not formally file an application in revocation in the spring of 2022, but given the email exchanges between counsel in the spring and summer of 2022, Plaintiff knew or could not have ignored that Defendant strongly contested the Judgment: I write in reference to the matter bearing court record number 500-17-105614-187 in which Raymond Chabot Inc. acting as liquidator of the Estate of Dorothy Mercier obtained a judgment by default on May 3, 2021 against her sister, Pearl Mercier, who died three months later on August 11, 2021.

On November 21, 2018, therefore, when the originating application in matter number 500-17-105614-187 was purportedly served on Penny Laprise, there was no mandate homologated nor any regime of protective supervision of a person of full age instituted for Penny Laprise, who, again, was notoriously incapable, which was obviously known to Reginald Weiser and Charlene Laprise.

Indeed, a controversy existed at the time as to whether a mandate in case of incapacity that Penny Laprise purportedly signed in 2006 in favour of James Scott Laprise was valid, which controversy persists to this day in regard of a disputed will that she purportedly signed in 2006 in matter number 500-17-120785-228.

If therefore stands to reason that service of the originating application in 500-17-105614-187 (and any subsequent proceeding) made on Penny Laprise on November 21, 2018 and subsequently was patently and completely invalid such that both the process as well as the default judgment rendered by the clerk are in egregious violation of the most elementary principle of natural justice, i.e., audi alteram partem or the adversarial principle codified at

Article 17 of the Code of Civil Procedure . Moreover, what is most shocking is that the foregoing was known to your clients and they nevertheless steamrolled through the tainted process rather than inform the court to halt it pending the orderly resolution of Penny Laprise’s capacity issue.

As you know, the issue of Penny Laprise’s capacity was never resolved during her lifetime and it was only recently, i.e., on April 29, 2022, that my client David Laprise was appointed provisional liquidator of Penny Laprise’s Estate, though she died on August, 2021, and this because of the aforementioned issues of the contested 2006 will signed concurrently with the contested mandate. In acting as they did, your clients are liable for damages to Penny Laprise and now to her Estate, including punitive damages per

Section 49 of Québec’s Charter of Human Rights and Freedoms , because their pursuit of matter number 500-17-105614-187 despite their intimate knowledge of her notorious incapacity constitutes unlawful interference with rights guaranteed under Sections 4, 6, 23, and 48, inter alia . If follows from the foregoing, that not only is the default of judgment invalid, but so too are the legal hypothec and prior notice of a hypothecary right (which you saw fit to certify) published on the title of the Estate of Penny Laprise’s immovable in Town of Mount Royal .

These will be contested and damages, per the above, will be claimed from your clients. I trust that you will advise your clients to act accordingly. Sincerely, Antonio Iacovelli

(Emphasis added) [ 39 ] Defendant asks for the Court’s leniency in granting the present application for revocation, despite the delay between its application and the date of Judgment, arguing that it is inconceivable to allow it to stand in light of such egregious violations of Penny’s rights. [ 40 ] Defendant argues that the Court was knowingly induced in error in rendering the Judgment in the first place, not having been informed of Penny’s incapacity (notably by Reginald) and of the flagrant irregularities with service on Penny.

To let the Judgment stand, it contends, would bring the administration of justice into disrepute. 2.

Plaintiff’s position [ 41 ] Plaintiff points out that David had received, as early as November 20, 2018, a copy of the original Application for Damages by way of email, [21] to which he responded by simply indicating: “Vincent, I have already been in touch with Reginald on this matter”. [ 42 ] Plaintiff argues that David was looking after his mother’s affairs at the time and Penny was neither under tutorship, nor curatorship and that no application had been filed to put either one in place. [22] [ 43 ] From that point onward, Plaintiff argues that Defendant failed to honor the 30-day delay set out in

article 347 C.C.P. not once, but six times. [ 44 ] First , on September 7, 2021, a notice of legal hypothec with a copy of the Judgment obtained in May 2021 was served on David in Toronto. The notice was in connection with the [Street A] residence. Plaintiff highlights that he was under no legal obligation to send David a copy of such a document.

The latter chose not to respond. [ 45 ] Second, after David was appointed as provisional liquidator in April 2022, Plaintiff asked for payment of the May 3, 2021, Judgment from David. [23] Within 30 days of the May 11, 2022, request, no application for revocation is filed. [ 46 ] Third, after many attempts, on July 25, 2022, a 60-day notice was served on David in Toronto. [24] Within 30 days following the 60-day notice, no application for revocation was filed. [ 47 ] Fourth, on August 5, 2022, David’s lawyer answered the May 11, 2022, email [25] in which reference is made to the Judgment.

It is clear from such correspondence that Defendant knew about the Judgment, had known about it all along and simply and negligently failed to act in order to have it revoked. Once again, within 30 days of this email, no application for revocation is made. [ 48 ] Fifth, after many further attempts, [26] an originating demand for surrender and taking in payment of an immoveable is served on David on January 16, 2023.

Attached was a copy of the May 3, 2021, Judgment. [27] No application for revocation was filed within 30 days following such service. [ 49 ] Lastly, on February 6, 2023, when a defense was prepared in response to the application in surrender and taking in payment of an immoveable, which also mentions the Judgment, no application for revocation was filed within 30 days. [ 50 ] As for the six-month delay set out in 347 C.C.P., it too was not respected. [ 51 ] Plaintiff further argues that no serious ground establishing that there was an impossibility to act has been formulated. [ 52 ] Finally, Plaintiff argues that Defendant has failed to raise any serious ground for defence.

In the original Application for Damages in File 187 , allegations regarding Penny’s liability and a substantial claim for damages were articulated. No defence has been formulated by Defendant on liability, nor on the extent of the damages claimed. [ 53 ] According to Plaintiff, Pearl’s incapacity did not mean that the action could not have been filed as Plaintiff had no choice to act in the way it did to prevent prescription delays from running. [ 54 ] Plaintiff points out that the application for revocation was only served on May 3, 2023, after the Honourable B.

Emery, j.c.s., suggested that Defendant file one. [ 55 ] For all these reasons, Plaintiff argues that there are no grounds for revocation and that such request is abusive. [ 56 ] At the hearing, Plaintiff highlighted that Defendant’s application for revocation is not accompanied by an affidavit and that therefore certain allegations (22, 23, 31, 45, 47, 48, 49), which are fundamental to the application, have not been properly put forward. ANALYSIS [ 57 ] This application raises various issues namely: 1.

What consequences flow, if any, from Defendant’s failure to file an affidavit with its application for revocation? 2. Can Defendant invoke the applicability of 349 C.C.P.? 3. Should the application for revocation be granted? 4. What consequences flow, if any, from the fact that no defence to the original claim was asserted?

[ 58 ] Before addressing these questions, a brief review of the applicable legal principles and teachings from our case law is warranted. Applicable legal principles [ 59 ]

Article 345 C.C.P. provides that a judgment should be revoked when the administration of justice would be brought into disrepute: 345. Foundation of the application . A judgment may, on a party’s application, be revoked by the court that rendered it if letting the judgment stand would tend to bring the administration of justice into disrepute . The judgment may be revoked, for instance, if fraud was committed by another party, if the judgment was based on false exhibits or if the production of decisive exhibits was prevented by superior force or by the act or omission of another party. (Emphasis added) [ 60 ]

Article 346 C.C.P. provides that the reasons justifying the revocation, as well as the grounds for defence raised against the original application, must be outlined in the application. [ 61 ]

Article 347 C.C.P. specifies that an application for revocation must be served within 30 days after the day on which the cause preventing the party from filing a defence ceased to exist, or after the day on which the party became aware of the judgment, evidence or fact that constitutes grounds for the revocation. Paragraph 3 of the same

article provides that this is a strict time limit. [ 62 ] As for

article 348 C.C.P., it indicates that the sufficiency of the reasons given in support of the application for revocation must be examined. In Canadian Royalties inc . c . Mines de nickel Neartics inc ., 2017 QCCA 1287 , the Court of Appeal states the following: [37]

Malgré le changement dans la formulation, la procédure actuelle devrait se dérouler dans la plupart des cas comme dans l’ancien code, c’est-à-dire, en deux étapes. Le juge s’assurera d’abord de la recevabilité de la demande en vérifiant le respect des délais ainsi que le sérieux des motifs de rétractation et des moyens de défense . Puis, plus tard, les parties feront leur preuve et le juge tranchera le pourvoi en rétractation et l’instance originaire en une seule ou en deux instructions. [ 63 ] Finally,

article 349 C.C.P. provides as follows: 349. Rights of a third person Any person whose interests are affected by a judgment rendered in a proceeding in which neither they nor their representatives were called may apply for the revocation of the judgment if it prejudices their rights. The application for revocation commences a proceeding before the court that rendered the judgment. Time limit Except if personality rights or personal status or capacity are at issue, the application must be brought within six months after the person becomes aware of the judgment.

It must be served on the parties to the judgment whose revocation is sought or, if the application is brought within one year after the judgment, on the persons who represented them in the case. 1.

First question [ 64 ] Plaintiff argues that Defendant has failed to comply with the requirement to file a sworn statement in support of its application for revocation of the Judgment. [ 65 ] The Court will first determine the question of identifying what consequences flow, if any, from Defendant’s failure to comply with such requirement. [ 66 ] During the hearing, Defendant asked for permission to file such a sworn statement, while pointing out that Plaintiff was aware of all the factual allegations, having examined the affiant at length. [ 67 ] The purpose underlying the requirement of a sworn statement in support of an application is to ensure that there is an evidentiary basis for the Court to render judgment and to uphold the adversarial principle which ensures that both parties have an opportunity to compel a cross examination of the affiant. [ 68 ] Given Plaintiff’s full knowledge of the factual allegations, as demonstrated by the representations made at the hearing and the fact that examinations had already taken place, the Court is of the view that it is within its discretion, pursuant to

Article 25 C.C.P. to remedy such failure by allowing the late filing of such affidavit. [28] 2. Second question [ 69 ] The Court now turn to the applicability of

article 349 C.C.P. [ 70 ] During the hearing, Defendant argued that it was also formulating its application for revocation based on

article 349 C.C.P., which arguably affords more flexibility with regards to the applicable timelines. [ 71 ] The Court is of the view that

article 349 C.C.P. is not applicable in the present case as Defendant cannot claim to be a third party, having stepped into the shoes of Penny pursuant to

article 198 C.C.P., through the continuance of proceedings. [29] The only person who could have claimed to be a third person pursuant to 349 C.C.P. is David. David is not before this Court in the context of the application for revocation. 3. Third question [ 72 ] Having determined that Defendant cannot base its application for revocation on

article 349 C.C.P. the Court will now examine

whether Defendant’s application should be granted pursuant to 345 C.C.P. and following. [30] [ 73 ]

Article 347 C.C.P. reads: 347. Service. An application for revocation must be served on all parties to the proceeding within 30 days after the day on which the cause preventing the party from filing a defence ceased to exist, or after the day on which the party became aware of the judgment, evidence or fact that constitutes grounds for the revocation. In the case of a minor, the 30-day period only begins to run as of notification of the judgment after the person reaches full age. Time limit of presentation.

The application for revocation must be presented before the court within 30 days after service, as if it were an application in the course of a proceeding. It cannot be presented if more than six months have elapsed since the judgment.

Strict time limit These are strict time limits. [ 74 ] While it is true that David should have perhaps acted more promptly once he learned about the Judgment in 2021 or that Defendant should have filed an application for revocation at an earlier date, it is clear that the legal situation which prevailed in this family was far from clear, that there was much uncertainty regarding Scott’s standing, and that David being away in Toronto might have created a reasonable expectation that his sister Charlene would not attempt to execute the Judgment. [ 75 ] Penny’s children, David included, had the responsibility to protect their mother’s rights. [31] Charlene failed to so actively by attempting to take advantage of her mother’s incapacity; David perhaps did so passively by failing to act more promptly, even once he was appointed provisional liquidator of his mother’s estate, albeit in a legal situation that was less than clear because of the uncertainty regarding Scott. [ 76 ] Even if that is admitted, it does not in any way eradicate the flagrant irregularities that have tainted this file right from the onset. [ 77 ] There are two ways in which the Court could approach the facts and in particular the timeline in this case.

It could, as Plaintiff suggested, have examined it from the standpoint of the alleged repeated failures on the part of the Defendant to file the application pursuant to the time limits set out in

article 347 C.C.P. This can be qualified as the formalistic approach. [ 78 ] Alternatively, it could have, and has chosen to consider it from the vantage point of what appears to be the only and fair perspective: that of an elderly and vulnerable person who is not present to stand up for herself and whose fundamental rights to be heard, given her condition, have been egregiously violated.

From that perspective, the analysis of any alleged failures to meet time limits becomes unnecessary and less compelling. [ 79 ] When the Application for Damages was improperly served on November 21, 2018, [32] Penny was 92 years old and was already incapacitated. At the time, she was permanently and totally incapable of caring for her person and property and no regime was in place for the protection of her civil rights.

The situation was very much the same when the Judgment was rendered, in May 2021, while Penny was 95 years old. [ 80 ] Penny’s fundamental right to be heard and to formulate a defence were not only disregarded, but irremediably violated right from the moment the Application for Damages was served in 2018. Every and all subsequent procedural steps taken from that point, including of course securing a Judgment against her, were tainted with such irregularity and illegality. [ 81 ] The right to be heard is a pillar of our justice system and constitutes a cornerstone of the principles of natural justice.

There is no value in our legal system as fundamental as this principle. Maintaining a judgment rendered in violation of such a fundamental principle would bring the administration of justice into disrepute. [33] [ 82 ] For all these reasons, the Court finds that the application for revocation cannot be dismissed on the basis that the timelines set out

article 347 C.C.P. have not been respected. [ 83 ] For the sake of completeness, even if the Court had approached the case from a review of the alleged violations of the various timelines set out in

article 347 of the C.C.P-by adopting the formalistic approach- the Court would have found, pursuant to the latter and to

article 84 C.C.P., that Defendant should be successful in its application to have the Judgment revoked given Penny’s impossibility to act and the need to ensure that the administration of justice not be brought into disrepute. [34] 4. Fourth question [ 84 ] The second paragraph of

article 346 C.C.P. provides that “the application for revocation must contain the reasons justifying the revocation as well as the grounds of defence raised against the original application .” (Emphasis added). [ 85 ] Plaintiff argues that Defendant’s failure to state a proper defence is yet another ground on which its application should be dismissed. [ 86 ] Although, strictly speaking, no grounds for defence have been outlined in the application for revocation, the Court if of the view that Defendant can not be blamed for such failure.

Due to Plaintiff’s course of action- improperly serving a vulnerable person who could not be expected to defend herself, obtaining a judgment against her and then attempting to execute said judgment- it is disingenuous for Plaintiff to now reproach Defendant for failing to file a proper defence. [ 87 ] Since the Court of Appeal’s well-known decision in Groupe JSV inc. c.

Goal Capital inc ., [35] in which the “vases communicants” approach was adopted, [36] courts are encouraged to consider both components of an application for revocation as being interconnected. [ 88 ] Even before that decision, the Court of Appeal had already indicated that it was important to show flexibility in cases where the

judgment which is sought to be revoked has been obtained through questionable or illegal maneuvers: [93] Si, en matière de rétractation, il y a, la plupart du temps, lieu de vérifier si le défendeur a une défense sérieuse à présenter, cela est vrai lorsque la procédure a été suivie par le demandeur et que le défaut résulte d'une cause non imputable à celui-ci. Mais cela n'est pas nécessaire lorsque le jugement par défaut, comme en l'espèce, a été rendu au mépris des règles de procédure .

Un jugement qui est susceptible d'annulation pour avoir été rendu par défaut d'une manière illégale n'est pas validé du fait qu'il appert que le défendeur n'a pas une défense sérieuse à présenter .

En conséquence, je n'exprime évidemment ici aucun avis concernant le fond du litige. [37] [ 89 ] It would be both improper and unfair to dismiss the application for revocation on the ground that Defendant has not formulated any grounds for defence, especially in a context where the Judgment, as it must be recalled, was rendered by default against a vulnerable and elderly 95-year-old unrepresented person. [ 90 ] Justice demands that the May 3, 2021, Judgment be revoked.

In the eyes of a reasonable, objective, and well-informed person of all the circumstances of the present case, revocation is the only outcome which would align with fairness.

This is a clear case where the finality of judgments must give way to the right to be heard. [38] [ 91 ] For all these reasons and using its wide discretion in these matters, [39] the Court grants Defendant’s application for revocation of the Judgment rendered on May 3, 2021. [ 92 ] As for the Application for Damages filed on November 21, 2018, which ultimately led to the Judgment now revoked, given Penny’s passing and Defendant’s representations before the Court regarding the difficulties involved in defending such a claim, Plaintiff will now have to decide whether it wishes to pursue that claim. [ 93 ] Defendant has also argued that the Action in Surrender should be dismissed, which according to the Court is a conclusion which flows from the decision to revoke the Judgment.

Without the Judgment, the Action in Surrender is moot. [40] [ 94 ] As for Plaintiff’s request for reimbursement of its legal fees in contesting the present matter, the Court is of the view that none should be reimbursed, nor costs, given the nature of the proceedings.

FOR THESE REASONS, THE COURT: [ 95 ] GRANTS Defendant’s application for revocation of the judgment rendered by default on May 3, 2021, by Me Geneviève Desalliers; [ 96 ] REVOKES the judgment rendered by default on May 3, 2021, by Me Geneviève Desalliers in the matter bearing record number 500-17-105614-187; [ 97 ] THE WHOLE , without costs given the nature of the proceedings. __________________________________ marie-claude rigaud, j.S.C.

Me James Reza Nazem Lawyer for Plaintiff Me Antonio Iacovelli Miller Thomson SENCRL / LLP Lawyer for Defendant Hearing date: October 17, 2023; additional written submissions received by the Parties on October 19, 20 and 23.