2012 QCCA 704, 2012 QCCA 704

Michaelides c. Saroglou 2012 QCCA 704 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022525-125 ( 500-17-064734-117 ) MINUTES OF THE HEARING DATE: April 18, 2012 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER ATTORNEY JOHN MICHAELIDES Mtre David F.H. Marler (ABSENT) The Law Offices of David F.H. Marler RESPONDENT ATTORNEY GEORGE SAROGLOU Mtre Azimuddin Hussain (ABSENT) NORTON ROSE CANADA MIS EN CAUSE ATTORNEY CHIEF ADMINISTRATOR of the Courts Administration Service for the Federal Courts, as represented by ATTORNEY GENERAL OF CANADA RECEIVER GENERAL OF CANADA Mtre Jean-Robert Noiseux (ABSENT) Ministère de la Justice Canada

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON FEBRUARY 23, 2012, BY THE HONOURABLE PEPITA G. CAPRIOLO OF THE SUPERIOR COURT IN THE DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: ——- HEARING Continuation of April 17, 2012, hearing. Judgment – See page 3. Clerk JUDGMENT [ 1 ] John Michaelides seeks leave to appeal from an interlocutory judgment of the Superior Court of the District of Montreal, rendered by Madam Justice Pepita Capriolo on February 23, 2012.

The judge dismissed two motions of declinatory exception brought separately by the Attorney General of Canada, co-respondent in the principal action, and by Mr. Michaelides, the mis en cause in the principal action. [ 2 ] In his motion to institute proceedings, George Saroglou brought the principal action against the Receiver General of Canada, as defendant, in order to revendicate money held in the Registry of the Federal Court, in which he also asked for "confirmation" that the funds are "exclusively owned" by him, as opposed to Mr. Michaelides, designated as mis en cause, or another person. [ 3 ] Only Mr.

Michaelides seeks leave to appeal from the interlocutory judgment of Capriolo J. [ 4 ] The petitioner argues that the Superior Court should decline jurisdiction because Title 3 of Book X of the Civil Code of Québec provides no basis in law for the Court to hear the dispute which involves two persons having a Greek domicile who disagree as to their rights under a contract apparently concluded outside of Quebec and governed by foreign law. [ 5 ] As noted, the property in dispute is money held on deposit in the Montreal office of the Registry of the Federal Court.

The petitioner argued before the Superior Court that the object of the dispute – a sum of money owed to a now dissolved company incorporated in the British Virgin Islands arising out of a claim owed by a vessel arrested in the Halifax harbour – is insufficient in itself to ground jurisdiction for the Superior Court of Quebec. Subsidiarily, Mr. Michaelides argues that the Superior Court should have

declined jurisdiction as forum non conviens . [ 6 ] The motions judge of the Superior Court dismissed the motions of declinatory exception. She wrote that the fact that property was held in the Registry office of the Federal Court in Montreal was sufficient to ground jurisdiction for the Court as a real action (para. [55]). She left open the question as to whether in this case a sum of money could form the object of an action in revendication on the facts of this case, but did not see the argument as fatal to jurisdiction at this stage (para. [47]).

She was further of the view that the relevant factors that might show that the Superior Court was a forum non conveniens were not present (para. [50]). *** [ 7 ] The motion for leave should be dismissed. [ 8 ] A declinatory exception that is dismissed is generally viewed as a judgment susceptible of appeal under

article 29, paragraph 1, C.C.P. [1] In this case, however, the pursuit of justice, within the meaning of

article 511 C.C.P., does not requires that leave be granted. [ 9 ] The issue as to whether jurisdiction of the Superior Court can be grounded by reason of the deposit of funds in the Registry office of the Federal Court in Montreal, given the unusual character of the motion to institute proceedings as framed by Mr. Saroglou against the Receiver General of Canada, was adequately addressed by the motions judge. So too was the question as to whether the Superior Court is a forum non conveniens issue. [ 10 ] The petitioner is right to say that the manner in which Mr.

Saroglou chose to institute proceedings is unusual – or "artful", as the motions judge elegantly noted. That the claim to "exclusive ownership" of the funds held in the Registry of the Federal Court – the crux of the dispute between Mr. Saroglou and Mr. Michaelides – should be resolved in proceedings in which the Receiver General is the named defendant may indeed appear surprising. [2] That said, the petitioner's motion stands in the way of a sensible resolution of the matter for no plain reason.

Importantly, the petitioner does not contest the validity of the agreement between the parties and has not alluded to any present or future intention to take action in another forum. The funds, fungible though they may be, are in the Registry of the Federal Court in Montreal. In my view, this is not the factual setting in which the theoretical question as to whether or not Romanist ownership can properly bear on a "claim" in connection with a real action is likely to be satisfactorily resolved.

Finally, I find it compelling that the Receiver General – the named defendant domiciled in Quebec – has chosen not to appeal the judgment and has decided to submit to the jurisdiction of the Superior Court. [ 11 ] Had I granted leave, I would have urged the parties to avail themselves of the mediation service of the Court given the obvious advantage of settling this matter. [ 12 ] FOR THESE REASONS , the undersigned: [ 13 ] DISMISSES the motion for leave to appeal, with costs. NICHOLAS KASIRER, J.A.