2017 QCCA 153, 2017 QCCA 153

M.B. c. G.B. 2017 QCCA 153 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026574-178 (500-17-092053-159) MINUTES OF THE HEARING DATE: January 27, 2017 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL M. B. M. B. (in her capacity as curator of P. G.) CH. P. (in his capacity as trustee of Fiducie A. G.) Mtre Pierre Frégeau Jessica pedrosa , articling student (Frégeau & Associés Inc.) RESPONDENT COUNSEL G. B. Mtre DIANE BRAIS Mtre CHARLOTTE OGER-CHAMBONNET (Brais & Associé

s) IMPLEADED PARTY COUNSEL C. G. Mtre DIANE BRAIS Mtre CHARLOTTE OGER-CHAMBONNET (Brais & Associé

s) DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on December 5, 2016, by the Honourable Claude Dallaire of the Superior Court, District of Montreal Application to suspend provisional execution pending appeal (article 660 C.C.P. ) Clerk: Adam Scott Courtroom: RC.18 HEARING 9:30 Commencement of the hearing.

Identification of counsel. 9:31 Exchange between the judge and Mtre Frégeau. 9:38 BY THE JUDGE: The petitioner’s motion for leave to appeal, which alludes to the judgments of December 5 th , 2016, and January 6 th , 2017, only seeks leave to appeal from the judgment of December 5 th , 2016. 9:39 Exchange between the judge and counsel. 9:40 Exchange between the judge and Mtre Frégeau. 9:47 Representations by Mtre Frégeau. 10:19 Representations by Mtre Brais. 10:39 Reply by Mtre Frégeau. 10:41 BY THE JUDGE: Judgment will be rendered at noon. Parties are not obliged to attend the hearing.

Suspension of the hearing. 12:02 Resumption of the hearing. 12:03 BY THE JUDGE: Judgment – see page 4. Conclusion of the hearing. (

s) Adam Scott Clerk BY THE JUDGE JUDGMENT [ 1 ] The petitioners ask for leave to appeal from a judgment of the Superior Court, District of Montreal, (the Honourable Claude Dallaire), rendered on December 5, 2016, which declared their action to be abusive and dismissed their amended motion to institute proceedings. The judge rendered judgment on January 6, 2017 on the matter of damages to be awarded to the respondent to sanction this abuse, but the parties agree that leave to appeal from that latter judgment is not requested today.

[ 2 ] The petitioners also ask for suspension of provisional execution of the December 5, 2016 judgment notwithstanding appeal. *** [ 3 ] The dispute relates to successoral property held either through trusts or in undivided co-ownership and decisions made by the respondent in managing that property.

The amended motion to institute proceedings asks, inter alia , that the respondent provide a full and complete accounting of the management of the property and seeks an order for his replacement as administrator thereof. [ 4 ] After a detailed analysis of the proceedings as they evolved through their various iterations, the judge observed that the petitioners had removed from their allegations serious accusations of inappropriate conduct by the respondent as well as specific details as to the factual basis of that conduct.

Noting that the principal conclusions remained in place, the judge found that the amended motion disclosed no allegation or factual basis that would justify the destitution of the respondent as administrator of the property of others and that the other conclusions sought were equally without a foundation in fact. She concluded that the action was abusive, stating that it had no reasonable chance of success and was “clairement voué à l’échec”.

She further observed that to proceed any further in this matter would entail a waste of the court’s resources. [ 5 ] The petitioners argue that the judge erred in law by applying the rules applicable to liquidators, trustees and administrators of the property of others to the facts alleged instead of the rules applicable to a manager of undivided property, and specifically

article 1027 C.C.Q. relating to appointment of managers. The judge is also said to have erred by applying too harsh a standard in dismissing the action, and that she misinterpreted the amended motion to institute proceedings which did provide the basis for a viable debate on the issues in dispute. *** [ 6 ] The motion for leave is governed by

article 30, para. 2 C.C.P. given that the judgment is one that dismisses a judicial application because of its abusive nature. (The rule under the former law was ostensibly the same). Leave is only granted, pursuant to paragraph 3 of

article 30, if the petitioners show that “the matter at issue is one that should be submitted to the court / la question en jeu en est une qui doit être soumise à la cour”. This is the case, in particular, if it involves a question of principle or a new issue or an issue of law that has given rise to conflicting jurisprudence. *** [ 7 ] Leave should be denied. [ 8 ] The petitioners have raised no issue that merits the attention of the court. Contrary to what the petitioners submit, a manager of undivided property is an administrator of property of others (article 1029 C.C.Q. ). None of the arguments they raise in the motion suggests to me that

article 1027 C.C.Q. dealing with the appointment of a manager in indivision applies directly to the facts as alleged here. Their motion requests the destitution and replacement of respondent as administrator, not his appointment. In any event, even if one were to assume that the respondent can be characterized as a manager of the undivided property pursuant to

article 1026 and following C.C.Q. and that

article 1027 applied to the replacement of a manager, the arguments their counsel raised in argument alleging a situation of impasse and explaining how the views of the majority of the co-owners justified replacing the respondent are not alleged in the amended motion to institute proceedings. [1] [ 9 ] The outcome here is decidedly of interest to the parties but

article 30, paragraph 3 C.C.P. requires that the matter at issue be placed on a higher plane. Barring a circumstance of striking injustice, the question must resonate beyond the confines of the dispute otherwise it will not be submitted to the Court. [2] That is not the case here. [ 10 ] Despite the arguments of petitioners’ counsel, I am also of the view that an appeal would have no reasonable prospect of success, which is in itself grounds for dismissing a motion for leave governed by

article 30 C.C.P. The judge’s conclusion on the insufficiency of the allegations suffers from no apparent weakness. Her finding that the action is destined to fail appears to me to be unimpeachable. This justified, in the circumstances, a finding of abuse, especially when understood in light of the file as it had evolved. [ 11 ] I disagree with the petitioners that the decision to dismiss the action at this early stage violated the rule of proportionality which, they say, should be applied with consideration of the consequences of such decisions to both sides.

Their counsel is right to say that a judge should exercise caution before dismissing an action outright as an improper proceeding. That said, the judge explained her view that, given the absence of any factual basis for the conclusions sought notwithstanding the petitioners opportunities to amend their proceedings, the action should be immediately dismissed to avoid wasting the courts resources. [3] One might add that the parties’ resources, including those of the petitioners, would have been ill-spent had these proceedings continued.

I see no error made by the judge on this point, much less a question that merits the attention of the court. FOR THE AFOREMENTIONED REASONS , the undersigned: [ 12 ] DISMISSES the motion for leave, with legal costs against the petitioners; [ 13 ] DISMISSES the motion to suspend execution as being without object, without costs. NICHOLAS KASIRER , J.A.