2014 QCCA 2017, 2014 QCCA 2017

Chrisanthopoulos c. Stergiopoulos 2014 QCCA 2017 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF MONTRÉAL No: 500-09-024791-147 (500-17-079930-130) MINUTES OF THE HEARING DATE : November 3, 2014 THE HONOURABLE NICHOLAS KASIRER , J.A. PETITIONERS COUNSEL ANDRIANA CHRISANTHOPOULOS PAVLOS STERGIOPOULOS Mtre ANDREAS ADAMACOPOULOS ( Adamacopoulos Avocats Inc . ) RESPONDENT COUNSEL JIMMY STERGIOPOULOS Mtre ROBERT PANCER ( Phillips Friedman Kotler s.e.n.c.r.l. ) DESCRIPTION : Motion for leave to appeal from a judgment rendered on the October 14, 2014 by the honourable Madam Justice Micheline Perrault of the Superior Court. (Art. 503.1 C.p.c .)

Clerk: Asma Berrak Courtroom: RC.18 HEARING 11 :20 Commencement of hearing. Submission by Mtre Adamacopoulos. 11:39 Submission by Mtre Pancer. 11:54 Reply by Mtre Adamacopoulos. 11:57 Suspension of hearing. 16:00 Resumption of hearing. Judgment-see page 3. Conclusion of hearing. Clerk BY THE JUDGE JUDGMENT [ 1 ] The petitioners ask for leave to appeal from an interlocutory judgment of the Superior Court, District of Montreal, (the Honourable Micheline Perrault), rendered on October 14, 2014, which dismissed a motion to strike a written statement from the record of the Superior Court. [ 2 ] The motion to strike was made pursuant, in particular, to

article 294.1 C.C.P. Plaintiffs in first instance, the petitioners argued that the written statement of a notary indicating that they had asked the notary to disburse $250,000 to the respondent, their son, at the closing of a sale of the family home, was wrongly admitted in evidence. [ 3 ] In the principal action instituted by the petitioners against their son, they claim that the son had taken advantage of the vulnerability of his aging parents who mistakenly trusted him at the time of the sale and thereafter. [ 4 ] The statement by the notary was filed following a notice of communication made pursuant to

article 294.1 C.C.P. As noted by the judge, former counsel to the petitioners did not object to the statement at the time of the filing of the notice; he was of the view that the Code did not require an objection and he had intended to call the notary as a witness at trial. [ 5 ] Relying in part on the statement of the notary, the respondent has filed a motion to dismiss the principal action in Superior Court. [ 6 ] The new lawyer for the petitioners wrote the respondent to object to the communication of the statement by the notary.

He also filed, on behalf of his client, the motion to strike the statement by the notary from the record. [ 7 ] The motion to dismiss the principal action was postponed while the interlocutory matter relating to whether or not the statement should be struck from the record was adjudicated. ***

[ 8 ] The judge dismissed petitioners’ motion to strike the communication from the record for three reasons. [ 9 ] First, she wrote that, contrary to the submission of the petitioners, the communication by the notary was not an expert report. Second, she observed that no allegation was made that it was impossible for the notary to testify as a witness at trial and, as a result, this was not a case governed by the rules in articles 2869 and 2870 C.C.Q.

Finally, no authorization was necessary to file the statement. *** [ 10 ] Petitioners say the judge erred in her understanding of one aspect of their position on the motion: they did not argue that the notary’s communication was an expert opinion but merely a statement of fact.

More importantly, they argue, the judge erred in law by allowing it to be filed in the record in the absence of consent or of permission by the court. *** [ 11 ] The motion for leave is governed by articles 29 and 511 C.C.P. [ 12 ] The petitioners may be correct that the judge misconstrued their position as to whether the notary’s statement was an opinion of fact or an expert opinion as to the nature of the transaction.

That said, the judge’s comment as to the petitioners’ position on the motion to strike the statement, even if mistaken, had no overriding impact on her decision to dismiss the motion. [ 13 ] Petitioners have failed to convince me that there is any plausible merit to their argument that the judge erred in law in dismissing their motion to strike the statement. The rules for communication and for filing of the statement referred to in

article 294.1 C.C.P., as amended, were respected by the respondent. Most appropriately, the judge made no comment as to the value of the statement in the law of evidence; that substantive question is a distinct one from the procedural rules relating to the proper filing of a statement in

article 294.1 C.C.P. (see generally Paré v. Paré , 2007 QCCA 517 , paras. [22] to [25] ). [ 14 ] Assuming without deciding that the judgment meets the requirements of

article 29 C.C.P., I am of the view that the pursuit of justice does not require leave to be granted. FOR THE AFOREMENTIONED REASONS , the undersigned: [ 15 ] DISMISSES the motion for leave to appeal, with costs. NICHOLAS KASIRER, J.A.