2014 QCCA 1739, 2014 QCCA 1739

Graham Boulevard Apartments Ltd. c. Cheng 2014 QCCA 1739 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023372-139 ( 500-17-065684-113 ) MINUTES OF THE HEARING DATE: September 10, 2014 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. NICHOLAS KASIRER, J.A. GENEVIÈVE MARCOTTE, J.A. APPELLANT COUNSEL GRAHAM BOULEVARD APARTMENTS LTD. Mtre ALI T. ARGUN Mtre VIKTORIA TCHISTIAKOVA ( Morency Société d’Avocats, sencrl ) RESPONDENT COUNSEL EDWARD CHENG Mtre MICHAEL HOLLANDER Mtre DANIELLE OIKNINE ( Oiknine & Associé

s) IMPLEADED PARTIES COUNSEL MTRE MICHEL GÉNIER NOTARY THE REGISTRAR FOR THE LAND REGISTRY FOR THE REGISTRATION DIVISION OF MONTREAL

In appeal from a judgment rendered on January 28, 2013 by the Honourable Madam Justice Carol Cohen of the Superior Court, District of Montreal. NATURE OF THE APPEAL : Amended Motion to homologate a Transaction Clerk: Asma Berrak Courtroom: Pierre-Basile-Mignault HEARING 9:29 Commencement of the hearing. Identification of counsel. Submission by Mtre Tchistiakova. 10:22 Submission by Mtre Argun. 10:57 Suspension of hearing. 11:17 Resumption of hearing. Submission by Mtre Hollander. 11:53 Reply by Mtre Argun. 12:05 Suspension of hearing 12:39 Resumption of hearing. Comments by Judge Chamberland.

Judgment-see page 3. 12:47 Conclusion of hearing. Clerk BY THE COURT: JUDGMENT [ 1 ] This is an appeal from a judgment rendered on January 28, 2013, by the Honourable Carol Cohen of the Superior Court, District of Montreal, granting the respondent’s Amended Motion to homologate a Transaction [1] , in the context of a Motion for

conveyance of title ("passation de titre"). [ 2 ] The respondent sought the homologation of the settlement transaction that took place in September 2011, given that the appellant refused to sign the Deed of Sale and settlement documents giving effect thereto. [ 3 ] The Amended Motion to homologate a Transaction was granted following a five-day trial. [ 4 ] The appellant contends that the trial judge erred in deciding that the essential conditions of the transaction had been met, as well as in deciding that the respondent’s subsequent conduct in the main action did not serve to repudiate the transaction.

Moreover, the appellant asserts that the trial judge modified the agreement by the terms of her judgment which, as rendered, is not executory. [ 5 ] When asked to homologate a transaction, a trial judge must, while keeping in mind the applicable conditions and principles, undertake an evidence-based factual analysis to determine whether there was a meeting of the minds on the essential terms and conditions giving rise to the transaction. [2] As such, the Court of Appeal should only intervene in the case of a “palpable and overriding error” [3] , as previously underlined by this Court in the context of a contested transaction in Supreme Precision Castings

(1963) Ltd c. Parker Industries Ltd : [4] La détermination de savoir s'il y a eu ou non transaction est essentiellement une question de faits, question sur laquelle une Cour d'appel n'interviendra pas à moins d'erreur manifeste du juge du procès. [ 6 ] In the case at hand, the trial judge provides a thorough factual analysis leading her to conclude that the three essential conditions of the transaction had been met on September 14, 2011.

The appellant has failed to demonstrate any palpable and overriding error in the evaluation of the evidence, both oral and documentary, including the trial judge's decision to refuse to consider a fourth condition to the transaction, as submitted by the appellant. [ 7 ] Moreover, the appellant has not shown any reviewable error committed by the trial judge in deciding that the respondent had not repudiated the transaction as a result of his subsequent actions, namely the pursuit of legal proceedings or the wording of an affidavit filed on his behalf following the transaction.

There is no established legal rule that continuation of legal proceedings necessarily implies a repudiation of the transaction. While the trial judge may examine the conduct of the parties as a factual indicator of the existence or not of the transaction, it remains a question of fact which is left to the judge’s appreciation of the evidence made at trial.

Here, the appellant has not demonstrated any palpable and overriding error justifying this Court’s intervention. [ 8 ] Moreover, the appellant has not demonstrated that the trial judge erred in ordering the conveyance of title ("passation de titre") nor that she modified the terms of the agreement or failed to specify which deed of sale she ordered the appellant to sign.

In paragraph 260 of her judgment, the judge refers to “a deed of sale” which is obviously the deed of sale dated September 15, 2011 previously mentioned at paragraph 259. [ 9 ] Appellant submits that the respondent should have presented a motion to reopen the hearing to demonstrate that he had the funds available, in the absence of irrevocable and unconditional financing. [ 10 ] By the time the Motion to homologate the transaction was pleaded in December 2012, the funds that had been deposited with the notary in September 2011 had obviously been returned to the lender, as a result of the appellant’s refusal to proceed with the sale. [ 11 ] However, the lender’s representative testified at the hearing and confirmed that the lender was still willing to fund the loan for the purpose of the transaction in case of homologation.

He did indicate that certain steps were required before the financing could be put into place once again, namely the review of the updated buyout sheet from the TD Bank, the current rent rolls and possibly further soil samples. [ 12 ] Under the circumstances and particularly given the fact that the funds had initially been deposited in trust with the notary and were only returned as a result of the appellant’s refusal to sign the deed of sale, these steps do not in our view constitute a bar to the conveyance of title. The situation is different from the one prevailing in the case of Rougeau v.

Blouin [5] cited by the appellant in support of its argument. [ 13 ] Nevertheless, given the concern raised by the appellant regarding the indefinite amount of time provided to the respondent to take possession of all the funds necessary for the transaction, we are of the view that the conclusions of the judgment should be modified:

a) to provide an exact time limit for the appellant and/or Mr. Steve Carson to provide notary Michel Génier with all documents necessary for the finalization of the deed of sale; and

b) to provide an exact time limit for the purpose of summoning the parties to sign the deed of sale. FOR THESE REASONS, THE COURT: [ 14 ] ALLOWS the appeal, for the sole purpose of modifying the formal order of the trial judge at paragraphs 260 and 262 as follows: “[260] ORDERS Graham Boulevard Apartments Ltd. and/or Mr.

Steve Carson to provide to Notary Michel Génier, on or before October 10, 2014 , all documents necessary for the finalization of the sale of the Property, including the current rent roll for the Property, a buyout sheet from his hypothecary creditor TD Bank, new soil samples if required, and any other information necessary for the preparation of a deed of sale and an up-to-date adjustment sheet; “[262] ORDERS Mis en Cause Michel Génier, as soon as he is in possession of all funds necessary for the real estate transaction from Plaintiff’s hypothecary creditor, but no later than December 23, 2014, to summon Defendant Graham and Plaintiff Edward Cheng to his office to sign the deed of sale, to which summons shall be attached the draft deed of sale and the new adjustment sheet.”

[ 15 ] WITH COSTS against the appellant, save for the respondent's Book of Authorities which was filed late. JACQUES CHAMBERLAND, J.A. NICHOLAS KASIRER, J.A. GENEVIÈVE MARCOTTE, J.A.