2012 QCCA 1120, 2012 QCCA 1120

Investissements GP Cantor inc. c. Rybakova 2012 QCCA 1120 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022708-127 ( 500-22-170828-100 ) MINUTES OF THE HEARING DATE: June 4, 2012 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONERS ATTORNEY LES INVESTISSEMENTS G.P. CANTOR INC. GAIL CANTOR Mtre Claude G. Leduc (ABSENT) MERCIER LEDUC RESPONDENT ATTORNEY NATALIA RYBAKOVA Me Michael Hollander (ABSENT) OIKNINE & ASSOCIÉS MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON APRIL 23, 2012, BY THE HONOURABLE ANDRÉ RENAUD OF THE QUEBEC COURT DISTRICT OF MONTREAL

Clerk: Annick Nguyen Court Room: —— HEARING Continuation of June 1, 2012, hearing. Judgment – See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] Gail Cantor and Les investissements G.P. Cantor Canada inc. ask for leave to appeal from a judgment of the Court of Quebec, District of Montreal (the Honourable André Renaud presiding), rendered on April 23, 2012, which granted in part a motion to institute proceedings brought by Natalia Rybakova and condemned the petitioners solidarily to pay her the sum of $40,000 with interest and the additional indemnity provided for by law. [ 2 ] Ms.

Rybakova had claimed compensation from the petitioners for sums she had paid on account for the purchase of a building. She alleged the offer to purchase was null by reasons of the misrepresentations of the petitioners as to the state of the building and the failure by Ms. Cantor to meet obligations imposed on her by the Real Estate Brokers Act . The petitioners counterclaimed for reimbursement of their lawyers' professional fees and costs. [ 3 ] The judge held the offer to purchase to be null for what he described as "multiple" reasons (para. [8] of the trial judgment).

He observed that the petitioners had not properly disclosed the structural problems affecting the building. He blamed the petitioners, as brokers, for not having inserted a standard clause allowing Ms. Rybakova to withdraw from the sale if she could not obtain financing. Finally, he decided that the failure by the petitioners to respect obligations imposed on them by regulations made under the Real Estate Brokers Act gave Ms Rybakova the right, under the Act, to withdraw from the sale. [ 4 ] In seeking leave to appeal, the petitioners allege that the reasons for judgment are insufficient at law.

They say that the judge failed to observe that the resiliation of the offer to purchase brought about application of the penal clause to their advantage; that judge allegedly misread the rules on prescription; and that he failed to appreciate that Ms. Rybakova, by reason of the long delay in taking action, should be considered as having tacitly renounced to the protection offered by the Real Estates Brokers Act . [ 5 ] According to the petitioners, the manner in which the judge ruled "in equity" raises the question of principle as to what amounts to proper reasons for judgment in like matters.

This constitutes, for the petitioners, a question that merits the attention of the Court pursuant to the applicable rules for leave to appeal at

article 26 C.C.P. [ 6 ] Notwithstanding the able argument of counsel, I am of the view that leave should not be granted. No question of sufficient import, based on the criteria in

article 26, justifies granting leave. [ 7 ] The judge's reasons make plain, at paragraphs [30] to [33], that the failure by the petitioners to meet the obligations imposed upon them under the Real Estate Brokers Act gave Ms. Rybakova the right to withdraw from the agreement. The petitioners' argument that the judge had mistakenly omitted to record that she had tacitly renounced that public order protection is not made out to my satisfaction. The judge rightly invoked a leading case on point which confirms her right to withdraw from the transaction and be reimbursed. [1] An appeal of this finding would have no reasonable chance of success in my view.

[8] The petitioners find fault in other aspects of the judge's reasons, but fail to convince me that any one of these would have anoverriding impact on the outcome of the case. Importantly at this stage of the proceedings, it does not suffice to show an error in thecourt below to secure leave to appeal. In this regard, and with no disrespect intended to the trial judge, the comments of my colleagueDoyon J. in Crédit Ford du Canada ltée c.

Industrielle Alliance Pacifique[2], bear recalling to mind: [5] Il faut toutefois rappeler que le critère pour accorder la permission, ici, n'est pas celui de l'existence d'une erreur commise par lejuge de première instance. Comme le souligne la juge Rayle dans Maison Sami T.A. Fruits inc. C.

Balcorp Ltd, SOQUIJ AZ-03019698(C.A.) : Considérant que même si le juge avait fait une erreur de droit dans son application des principes applicables comme le prétend lerequérant, cela en soi ne suffirait pas pour constituer une question d'intérêt général dont la Cour d'appel devrait être saisie. […] [6] Encore faut-il que la question soumise en soit une d'intérêt général que la Cour devrait trancher : Caisse populaire de Dégelis c.Nadeau, SOQUIJ AZ-00011512 (C.A.), et qu'elle soulève une question de principe ou implique un débat de droit relativement auquel ilexisterait une jurisprudence contradictoire : Syndicat des copropriétaires des Pignons de La Mairie c.

Lavoie, SOQUIJ AZ-04019211(C.A.). Voir également Fafard c. Commission de la construction du Québec, (QC CA), REJB 1998-07023 (C.A.),Les industries Fournier inc. c. Commission de la construction du Québec, (QC CA), REJB 1998-07024 (C.A.). [9] In sum, leave cannot be granted as no appropriate question under

article 26 C.C.P. is raised in the present case. FOR THE FOREGOING REASONS, the undersigned: [10] DISMISSES the motion for leave to appeal, with costs. NICHOLAS KASIRER, J.A.