2018 QCCA 1047, 2018 QCCA 1047

Estate of J.B. 2018 QCCA 1047 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027490-184 (500-14-050610-161) MINUTES OF THE HEARING DATE: June 8, 2018 CORAM: THE HONOURABLE martin vauclair , J.A. marie-josée hogue , J.A. claudine roy , J.A. IN THE MATTER OF THE ESTATE OF THE LATE J. B. APPLICANT D. B. IN PERSON RESPONDENT COUNSEL M. B. Mtre julien delangie (Narang & associés s.e.n.c.) IMPLEADED PARTIES LE CURATEUR PUBLIC DU QUÉBEC OFFICIER DE LA PUBLICITÉ DES DROITS PERSONNELS ET RÉELS MOBILIERS (RDPRM)

DESCRIPTION : Application for leave to appeal after the expiry of time limit from judgments rendered on November 8 and November 24, 2017 by the Honourable Mr. Justice Benoît Emery of the Superior Court, District of Montreal (Article 363 C.C.P .) Clerk: Philippe Charette Courtroom: Pierre-Basile-Mignault HEARING 9:30 am Commencement of the hearing. Continuation of the hearing held on June, 4 2018. The parties are excused from appearing in Court. BY THE COURT: Judgment – see page 4.

Philippe Charette Clerk BY THE COURT JUDGMENT [ 1 ] On May 4, 2018, the appellant filed an application for leave to appeal from a judgment of the Superior Court, District of Montreal (Emery J.) rendered ex parte on November 24, 2017. The judgment removed appellant as the liquidator of her father’s estate and designated Mtre André Nasset or Mtre Eliane Touchette Dansereau as liquidators. [ 2 ] The first reason leave to appeal cannot be granted is that the appellant must be represented by counsel, as required by

article 87, para. 6 C.C.P. , since the proceedings concern her removal as a liquidator of an estate: 87. The following are required to be represented before the courts by a lawyer in contentious proceedings, and by a lawyer or a notary in non-contentious proceedings: […] (6) liquidators, trustees and other representatives of collective interests when acting in that capacity;

[…] [ 3 ] The appellant was forewarned of this requirement, as evidenced by Langlois J.S.C.’s judgment rendered on March 20, 2017: […] Considering that Mrs. D. B. is being sued as a liquidator of the estate of the late J. B.; Considering that, as a result, she is required to be represented before the Court by a lawyer; […] [ 4 ] Giving the appellant additional time to seek legal representation would be of no avail here because other reasons convince us that leave to appeal should not be granted. [ 5 ] The appellant had 30 days to appeal the judgment (article 360 C.C.P. ).

The time limits for appeal are strict and the right to appeal is forfeited on their expiry (article 363 C.C.P. ). The Court may authorize an appeal if: • not more than six months have elapsed since the judgment; • it considers that the appeal has a reasonable chance of success; and • it was impossible in fact for the appellant to act earlier. [ 6 ] Only the first criterion is met here. [ 7 ] The 5 ½ month-delay was caused by the fact that the appellant, following her counsel’s recommendation, first tried to have the judgment revoked. That application was dismissed on January 15, 2018.

If it was impossible for the appellant to act until that date, the application for leave should have been filed no later than February 15, 2018. The notice of appeal was served only at the beginning of May. The appellant argues that it took until April 1, 2018 to obtain the stenographic notes.

Waiting for the stenographic notes, however, did not prevent the appellant from filing her application. [ 8 ] Furthermore, although the appellant may be right to say that, in his November 8, 2017 judgment, Emery J. was under the mistaken impression that she had not filed her means of contestation, since they were disclosed in the case protocol signed and filed on July 6, 2017, this misunderstanding is not sufficient to justify granting leave to appeal since we also have to consider the reasonable chance of success, the interests of justice and the principle of proportionality. [ 9 ] It seems that litigation between the sisters started long before their father died.

Since 2011, they have fought in court regarding his curatorship. The appellant was first appointed curator, then replaced by the Public Curator for the administration of his property, then removed as curator to his person (500-14-040437-121 and 500-17-084377-145). All decisions were unfavourable to the appellant, and all her appeals were dismissed.

Further proceedings were instituted against, amongst others, an attorney who represented her, the respondent’s attorney, and the Public Curator, the whole culminating in a judgment prohibiting the appellant from instituting any judicial proceedings relating to the care of her father and the administration of his property (Fraiberg J., April 13, 2016). [ 10 ] The hostilities recommenced – or continued – after Mr. B. passed away and the appellant took charge as the liquidator of the estate, as provided for in the will. The respondent filed proceedings to have her removed and the appellant contested the same.

It is in this context that the judgment the appellant seeks to appeal from was rendered. [ 11 ] In this judgment, Emery J. essentially decided that it was best to appoint independent parties – an attorney and a notary – to liquidate the estate. Thus, even considering the means of contestation in the case protocol, the appeal has no reasonable chance of success. [ 12 ] In the interest of justice, and respecting the principle of proportionality, we are of the opinion that leave to appeal should not be granted in these circumstances.

FOR THESE REASONS, THE COURT: [ 13 ] DISMISSES the application for leave to appeal, without costs. martin vauclair, J.A. marie-josée hogue, J.A.

claudine roy, J.A.