2023 QCCA 1061, 2023 QCCA 1061

Spunt c. Granville Trust 2023 QCCA 1061 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030601-231 ( 500-17-124212-237 ) MINUTES OF HEARING DATE: August 18, 2023 THE HONOURABLE PATRICK HEALY, J.A. APPLICANTS COUNSEL Sheri Spunt Alexander Carin Mtre JEAN-FRANÇOIS TRUDELLE ( Fasken Martineau DuMoulin ) Absent RESPONDENTS COUNSEL Granville Trust Betty Nezri Mtre JEAN-FRANÇOIS FORGET Mtre RAPHAËLLE MOMBLEAU ( Stikeman Elliott ) Absent IMPLEADED PARTYIES COUNSEL Eric Azoulay Mtre MARIE-CLAUDE DE GRANDPRÉ ( Langlois avocats ) Absent Town of Hampstead ABSENT AND UNREPRESENTED

DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on June 14, 2023 by the Honourable Thomas M. Davis of the Superior Court , District of Montreal (Articles 30, para. 2 (3) and 357 C.C.P. ). Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING Continuation of the hearing held on August 15, 2023. The parties were excused from appearing in Court. BY THE JUDGE : Judgment – see page 4.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] The petitioners seek leave to appeal against a judgment of the Superior Court [1] that concluded as follows: [40] GRANTS the Application of Defendants Granville Trust and Betty Nezri to dismiss Plaintiffs’ Amended Originating Application, both under

article 168 paragraph 2 and articles 51 and following C.C.P.; [41] DISMISSES the Amended Originating Application of Plaintiffs; [42] DECLARES the Amended Originating Application of Plaintiffs to be abusive; [43] RESERVES Defendants Granville Trust and Betty Nezri their rights to present a claim of damages to the Court within 30 days of present judgment in respect of the Court’s declaration that the Amended Originating Application is abusive. [ 2 ] The petitioners do not seek leave to appeal against the dismissal of their Amended Originating Application.

They seek leave to appeal only against the declaration of abusiveness. [ 3 ] When the petitioners bought a parcel of land the vendors informed them that there were no charges of any kind owing on the property. The petitioners decided to obtain a building permit for construction. When such plans are undertaken, the applicants are obliged to assume a “park contribution.” On this basis the petitioners were assessed a contribution of $107,680. The petitioners began proceedings in which they claimed this amount from the vendors.

They alleged that the vendors were obliged to inform them at the time of the sale that the park contribution would be assessed if they undertook a construction project on the property. [ 4 ] The Superior Court dismissed the petitioners’ action summarily on the basis that the vendors had no obligation to inform the petitioners of the assessment of a park contribution because it was assessed and payable only by reason of the decision taken by the petitioners themselves after the purchase to embark upon a construction project. [ 5 ] The Superior Court dismissed the petitioners’ judicial application under Article 168(2) C.C.P. because it was unfounded in law.

The petitioners’ decision not to seek leave to appeal against this conclusion means they do not contest that their Amended Originating

Application was unfounded but do contest the conclusion that it was abusive. These two conclusions are not mutually exclusive but they are also not synonymous because a proceeding that is unfounded in law is not necessarily abusive. While a conclusion that a proceeding is abusive does not require a demonstration of bad faith or intention, [2] it is distinguishable by degrees from a conclusion that a proceeding is unfounded. [ 6 ] The petitioners seek leave to appeal against the conclusion of the Superior Court that their action against the vendor was abusive.

The basis for this conclusion was expressed by the Superior Court in this manner: [38] One must also remember that as set out in the decision of Ramsay c. Tremblay , once a party has established summarily that a procedure is abusive the other party has the burden to demonstrate the contrary. [39] Here Granville Trust and Nezri have provided a clear demonstration that Plaintiffs’ Amended Originating Application is unfounded.

Plaintiffs certainly have not demonstrated the contrary, all the more so in that in respect of their claim that Granville and Nezri had a duty to inform them of the park contribution, the case law that they have produced does not support that proposition. [3] [ 7 ] Leave to appeal may be granted under the second paragraph of

Article 30 C.C.P. if it should be considered by the Court to resolve a question of principle. Paragraph [38] of the Superior Court’s reasons is a statement that the petitioners did not discharge a burden to disprove abusiveness. [ 8 ] It is perhaps arguable that the Superior Court’s judgment does not particularise the abusiveness in the petitioners’ proceeding (Article 51 C.C.P.) but it explains clearly the conclusion that the Originating Application is unfounded (Article 168, paragraph 2 C.C.P.).

The conclusion that the petitioners’ judicial application was abusive was declaratory and provisional in this case because it was not accompanied by damages or any other specific remedy. Moreover, the Superior Court expressly reserved the possibility that a further remedy could be sought on this basis, which implies that an attempt to obtain such a remedy could fail. The conclusion of the Superior Court to reserve the respondents’ option to file an Original Application for abuse means that this issue, despite the court’s declaration, was not resolved or concluded between the parties.

In the absence of a resolution on this question the petitioners’ application for the leave to appeal against the declaration of abuse is premature. [ 9 ] The reason that the petitioners identify for seeking leave to appeal against the conclusion of abusiveness by the Superior Court is this: The appellants having already suffered the ultimate sanction of seeing their Application dismissed, they should not further suffer the opprobrium of a declaration of abuse. [ 10 ] This reason falls short of the criteria for leave in Article 30(2) C.C.P. and in the circumstances of this case at this time an appeal is inconsistent with the principle of proportionality.

FOR THESE REASONS THE UNDERSIGNED: [ 11 ] DISMISSES the motion for leave to appeal with judicial costs. PATRICK HEALY, J.A.