2020 QCCA 1214, 2020 QCCA 1214

Amzallag c. Ville de Sainte-Agathe-des-Monts 2020 QCCA 1214 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029039-203 (700-17-009284-125, 700-17-009588-129) DATE: September 23, 2020 BEFORE THE HONOURABLE MARK SCHRAGER, J.A. No: 700-17-009284-124 SERGE AMZALLAG ZIPORA MILSTAIN AMZALLAG APPLICANTS – Defendants/Cross-Plaintiffs v. VILLE DE SAINTE-AGATHE-DES-MONTS RESPONDENT – Plaintiff/Cross-Defendant _____________________________________________________________________ No: 700-17-009588-129 SERGE AMZALLAG ZIPORA MILSTAIN AMZALLAG APPLICANTS – Plaintiffs v.

VILLE DE SAINTE-AGATHE-DES-MONTS BENOÎT FUGÈRE RESPONDENTS – Defendants JUDGMENT [ 1 ] Applicants present a motion entitled “Application for extension of delay for presentation of an application for leave to appeal”. This regards a judgment dated July 24, 2020 by the Superior Court, District of Terrebonne (the Honourable Marie-Claude Lalande). Because of Decree 127-2020 suspending delays, this motion is made within the legal delays and I am treating it as an application for leave to appeal, the whole as indicated to the parties at the beginning of the hearing.

The judgment dismissed Applicants’ action and a cross-demand in a related matter declaring both proceedings unfounded in law and abusive in other respects and declaring Applicants quarrelsome litigants. [ 2 ] The Applicants’ claim for damages stems from the zoning change adopted by the Respondent municipality. The judge dismissed the claim as unfounded in law under

article 168 C.C.P. because there are no facts alleged giving rise to a claim of acquired rights and because the recourse is prescribed given that it was instituted 14 years after the zoning change. [ 3 ] In addition, the judge declared other aspects of Applicants’ claim for damages abusive. The claims arise following the Respondent municipality seeking to oblige Applicants to repair or demolish their property. Their claim is based on the alleged failure of the Respondent to maintain the road where the immovable property is located.

The judge noted similar litigation between the municipality and the Applicants’ daughter where another judge following proof and hearing, concluded that the street during the same time frame was properly maintained.

Thus, the judge concluded that Applicants contestation had no reasonable chance of success (“vouez à l’échec”). [ 4 ] Moreover, the judge concluded, based on another judgment, that the municipalities’ recourse was not a reprisal following the reduction in value of Applicants’ property for municipal tax purposes. [ 5 ] Finally, the judge declared the Applicants to be quarrelsome litigants given their persistence in bringing forth the same position and arguments despite the refusal of several judges to agree, including judges of this Court.

The judge also noted that the couples’ have drawn excessively upon municipal and judicial resources during a span exceeding 8 years. [ 6 ] Given the declaration of abuse, leave to appeal is required pursuant to

article 30 C.C.P. The declaration of abuse in this case is not obiter since it was necessary to the dismissal beyond the grounds of prescription and acquired rights. [1] The damages and other conclusions sought in both of Applicants’ action and cross-demand stem inseparably from all the causes of action alleged by Applicants. [ 7 ] Leave is granted where for example a question of principal or a new issue or an issue, the subject of conflicting case law is made out. No such things are alleged here. The judge applied recognized legal principles to the factual circumstances of the present case.

[ 8 ] The Applicants say that the issue in the daughter’s litigation where the road was found to be properly maintained “is different” without stating how and why. This does not give rise to the granting of leave to appeal. [ 9 ] In brief, the motion sets out a litany of so-called grounds for the Court of Appeal to rehear the matter without spelling out any question which would justify the granting of leave in virtue of

article 30 C.C.P. [ 10 ] However, the conclusion in the judgment declaring Applicants quarrelsome litigants is appealable as of right. [2] There is no leave that need be granted.

The conclusion that Applicants are seeking is on its face made at large and not restricted to the proceedings before the lower court, but rather to any proceedings against the Respondent. [3] Of course, it would not apply to proceedings before this Court, but given particularly the generality and broad nature of the declaration (i.e. potentially beyond the subject of the instant litigation), I am of the view, that leave to appeal is not required.

The notice of appeal is, as stated above, filed within the legal delays and does raise, however briefly in paragraph 13, the finding that Applicants are quarrelsome litigants. As such, the appeal docket remains though only with respect to such conclusion in the judgment. FOR THESE REASONS, THE UNDERSIGNED: [ 11 ] DISMISSES the application with legal costs. MARK SCHRAGER, J.A. Serge Amzallag Zipora Milstain Amzallag Unrepresented Mtre Sébastien Dorion DUNTON, RAINVILLE For Respondents Date of hearing: September 21, 2020