2021 QCCA 1307, 2021 QCCA 1307

Feldman c. Succession de Lande 2021 QCCA 1307 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029652-211 ( 500-14-058797-200 ) MINUTES OF HEARING DATE: August 30, 2021 THE HONOURABLE MARK SCHRAGER, J.A.

APPLICANT GLENN JOSEPH FELDMAN Unrepresented By videoconference RESPONDENT ESTATE OF MARTIN LANDE Unrepresented Absent IMPLEADED PARTIES COUNSEL IRWIN LANDE Mtre CAROLINE HARNOIS ( Lavery, De Billy ) By videoconference AGENCE DU REVENU DU QUÉBEC Unrepresented Absent DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on July 15, 2021 by the Honourable Mark Philip of the Superior Court, District of Montréal (Articles 30 paras. 2 and 357 C.C.P. ) . Clerk at the hearing : Paola Garcia Rosario Courtroom: RC-18 HEARING 10:24 Commencement of the hearing.

Identification of counsel. Submissions by Mr. Feldman. 10:47 BY THE JUDGE: Judgment – see page 3. 10:48 Conclusion of the hearing.

Paola Garcia Rosario, Clerk at the hearing JUDGMENT [ 1 ] The Applicant seeks leave to appeal the judgment rendered on July 15, 2021 by the Superior Court, District of Montreal (the Honourable Mr. Justice Mark Phillips), granting Respondent’s motion to dismiss and dismissing Applicant’s action to annul the will of the late Ludwig Delphiner who died in 1983. [ 2 ] In a detailed judgment, the judge found that Applicant lack the requisite legal interest as he was neither an heir nor a liquidator of the estate and that the action was in all events prescribed.

Moreover, the judge declared the action abusive, thus the application for leave pursuant to Article 30(3) C.C.P. [ 3 ] Applicant was one of two witnesses to the will who now states that he did not in fact see the deceased appose his signature and that his affidavit attesting the signature is false. He produces two reports of handwriting experts indicating that the signature of the deceased appears to be that of Mr. Irwin Lande.

Clearly, Applicant could have known this years ago. [ 4 ] The judge’s findings of lack of interest and prescription are solid. [ 5 ] The abusive nature of the proceeding is cogently set out by the judge who describes an incongruous and convoluted story of the allegations of the deceased’s involvement in misappropriation of assets during the Second World War, Applicant’s intention to ruin his former business associate, Irwin Lande, and Applicant’s own turpitude in the witnessing and probate of the will. [ 6 ] The application for leave states that Applicant was in fact liquidator of the estate of the deceased who said he should act as “lawyer”.

As the judge notes and the will indicates, Martin Lande (father of Irwin Lande) was the named executor. Even if Applicant did the legal work, this does not make him the liquidator of the estate contrary to the terms of the will. [ 7 ] The finding of prescription is essentially factual. Moreover, the judge underlines that Applicant does not claim any impossibility to act (pursuant to

Article 2904 C.C.Q. ) and underlines that Applicant falsely stated that he witnessed the deceased signature. [ 8 ] Lastly, the Applicant alleges that the judge mentioned that he had once represented Mr. Lande in an unrelated matter while he was a practicing attorney. However, the record does not indicate that following such declaration by the judge, that the Applicant sought the judge’s recusation. To the contrary, the minutes state that both parties agreed that the judge could hear the case. [ 9 ] None of these grounds constitute questions of principle, issues of law or other matters that should be submitted to the Court as required for leave pursuant to

Article 30 C.C.P. Moreover, I do not believe that the proposed appeal has a reasonable chance of success so that the interest of justice (Article 18 C.C.P. ) does not favour the granting of leave. FOR ALL OF THE FOREGOING REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the application for leave to appeal a judgment terminating the proceeding, with legal costs. MARK SCHRAGER, J.A.