2022 QCCA 1193, 2022 QCCA 1193

Bich c. Harpur 2022 QCCA 1193 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030137-228 ( 500-17-091838-154 ) MINUTES OF HEARING DATE: September 2, 2022 THE HONOURABLE PETER KALICHMAN, J.A. APPELLANTS COUNSELS CHARLES BICH PICCHIO INTERNATIONAL INC.

Mtre WILLIAM BROCK ( Davies Ward Phillips & Vineberg ) M tre JULIE GIRARD ( Davies Ward Phillips & Vineberg ) By videoconference Mtre LAURA BAMBARA ( Miller Thompson ) By videoconference Mtre ROSEMARIE SARRAZIN ( Miller Thompson ) Absent RESPONDENTS COUNSELS DOUG HARPUR PATRICK PICHETTE THE BAY MEADOW LIMITED PARTNERSHIP FAIRLIGHT CABIN QUEBEC L.P. KENAUK PROPERTIES L.P. ORGANIX CORPORATION NORTH OAKS INVESTEMENTS LLC. KENAUK CANADA ULC Mtre ÉRIC MONGEAU Mtre JEAN FONTAINE ( Stikeman Elliott ) Absents IMPLEADED PARTIES COUNSELS

KENAUK AGRICULTURE INC. MICHAEL M. WILSON LES ENTREPRISES ERNESTO MONACO INC. NO KENAUK HOLDINGS ULC DOMENICO MONACO Mtre ÉRIC MONGEAU Mtre JEAN FONTAINE ( Stikeman Elliott ) Absents THE LAND REGISTRAR OT THE LANG REGISTRY OFFICE OF THE REGISTRATION DIVISION OF PAPINEAU ABSENT AND UNREPRESENTED DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on May 31, 2022 by the Honourable Thomas M. Davis of the Superior Court , District of Montréal . Clerk at the hearing : Ariane Simard-Trudel Courtroom: RC-18 HEARING 9:29 Commencement of the hearing.

Continuation of the hearing held on August 31, 2022. The parties were excused from appearing in Court. BY THE JUDGE : Judgement – see page 4. 9:30 Conclusion of the hearing. Ariane Simard-Trudel, Clerk at the hearing JUDGMENT [ 1 ] The Applicants seek leave to appeal from a judgment rendered on May 31, 2022 by the Superior Court (the Honorable Thomas M. Davis), dismissing their originating application and declaring it to be abusive. [ 2 ] The trial, which took place over fifteen days, concerned a large and valuable piece of land which the Applicants and the Respondents both expressed interest in purchasing.

The essential thrust of the Applicants’ claims in first instance may be summarized as follows: • Certain of the Respondents (the Pichette Group) breached an agreement to submit a joint bid to purchase the property;

• Even after the parties had failed to agree on a joint bid, the Pichette Group agreed to transfer a portion of the property to them; and • The Respondents prevented them from making their own offer to purchase the property. [ 3 ] In a lengthy and detailed judgment, the judge rejects each of the claims put forward by the Applicants. He then considers the Respondents’ request to declare the action to be abusive.

He concludes that while it “may not have been abusive from the outset, it became so when Plaintiffs elected not to present the evidence necessary to support their action to the court.” [ 4 ] The Applicants have not appealed the other conclusions of the judgment.

They seek leave solely in regards to the finding of abuse. * * * [ 5 ] Because the judge dismissed the action due to its abusive nature, leave to appeal is required. [1] Leave will only be granted in such cases where a judge of the Court concludes that “…the matter at issue is one that should be submitted to the Court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions”. [2] [ 6 ] In most cases, the decision to grant leave in regards to a finding of abuse will depend or whether or not there is an obvious weakness in the judgment. [3] * * * [ 7 ] The Applicants submit that they meet the requirements for leave.

The arguments set out in their motion may be summarized as follows:

i) because they adduced substantial evidence at trial in support of their position, the judge erred in concluding that the high threshold for a finding of abuse had been met.

This, they argue, constitutes an apparent weakness in the judgment; ii) a finding of abuse based on the fragility of the evidence presented at trial violates the fundamental principle of access to justice and creates a chilling effect of on litigants; and iii) there is conflicting jurisprudence in Quebec as to whether or not a finding of abuse can be made on the basis of the insufficiency or fragility of evidence and the Court’s guidance on this question is thus required. [ 8 ] At the hearing of the motion, the arguments presented were slightly different.

The Applicants maintained that the principle question of interest to the Court is whether or not a judge can use hindsight to determine that a party should have known that its proceedings were or had become abusive. The Applicants contend that this is precisely what occurred in this case. The judge, after having made an adverse finding of credibility, reviewed the evidence and reached a conclusion regarding abuse that the parties themselves could not have arrived at as events unfolded.

According to the Applicants, applying the test for abuse in this manner leads to unjust results as it did here. [ 9 ] The Applicants emphasize that the proposed appeal does not require as detailed a review of the evidence as would an appeal on the merits. They claim not to take issue with the judge’s findings of fact just with his characterization of those facts. According to them, the Court can fully appreciate their arguments by reviewing the judgment and a selection of key exhibits. [ 10 ] The Applicants have not convinced me that leave should be granted.

The proposed appeal raises neither a question of principle nor a new or controversial question. Furthermore, the Applicants have not demonstrated a flagrant weakness in the judgment. [ 11 ] The distinction the Applicants draw between a review of the evidence to evaluate a finding of abuse and a review of the same evidence on the merits is, in my view, impractical, if not artificial.

Evaluating the judge’s characterization of the facts necessarily involves reviewing the evidence as it was adduced at trial. [ 12 ] Despite the fact that the appeal only deals with the finding of abuse, ultimately what the Applicants are asking the Court to do will involve reviewing the evidence from a 15 day trial, including hundreds of exhibits, 5 days of pretrial depositions, and over 100 undertakings, and concluding – not that they should prevail on the merits but simply that the evidence adduced was sufficiently strong to resist a finding of abuse.

They submit that the question of where the judge placed the threshold for abuse is one that should be of interest to the Court. However interesting the question may be, the judge’s conclusion is factual and deference is owed. [4] [ 13 ] The Applicants also argue that there is a controversy in the case law as to whether or not insufficient or weak evidence can be the basis of a finding of abuse. Even if that were so, the judge’s finding of abuse is not based solely on an apparent weakness in the evidence.

On the basis of his appreciation of the evidence, he concludes that no reasonable person would have continued the proceedings. At paragraphs 391 and 393 of the judgment, he writes: [391] In the Court’s view, the documentary evidence in the record between September 3 and September 23, much of it emanating from Mr. Bich himself or his partner André Desmarais, shows that Plaintiffs’ insistence that an agreement was concluded on September 3, is clearly unfounded. Had he given the reading of a reasonable person to these documents, Mr. Bich should have realized this.

Only temerity could have led him to push his action forward in the way that he did the paragraphs of the Re-amended Originating Application that the Court has referred to are examples of same. (…) [393] Picchio must suffer the same fate. Apart from the fact the corporate entity has no right of action, the Bellinis never spoke to Mr. Pichette or Mr. Harpur. They cannot avoid the inescapable conclusion that the evidence clearly shows that Mr. Bich never made the

deals that he says he made. The Bellini family and Picchio an independent duty to consider whether the allegations of the Re-amended Originating Application were serious and the quality of Mr. Bich’s evidence before agreeing to be a party to the proceeding. It seems that Mr. Bellini only gave the application cursory attention. Nor can the Bellini family insulate itself from the even more serious problem that the Court will now discuss. [ 14 ] As the Applicants acknowledge, the judge identifies the proper test for a finding of abuse.

In particular, he cites the Court’s decision in Royal Lepage commercial inc. c. 109650 Canada Ltd. [5] , which provides a definition of temerity which he then applies to the facts of the case. The Applicants clearly disagree with the manner in which the judge applied the test for abuse but they have failed to demonstrate a flagrant error in that application. Ultimately, the appeal does not transcend the interest of the parties and leave will not be granted. FOR THESE REASONS, THE UNDERSIGNED: [ 15 ] DISMISSES the Motion for leave to appeal, with legal costs. PETER KALICHMAN, J.A.