2019 QCCA 1130, 2019 QCCA 1130

Peterkin c. Piscardelis 2019 QCCA 1130 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028165-199 (500-17-099053-178) MINUTES OF THE HEARING DATE: June 17, 2019 CORAM: THE HONOURABLE jacques chamberland , J.A. louis rochette , J.A. claudine roy , J.A. APPELLANT JESSICA PETERKIN UNREPRESENTED RESPONDENT COUNSEL THOMAS PISCARDELIS Mtre TOM MARKAKIS (De Louya Markakis) IMPLEADED PARTY OFFICER DU BUREAU DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION FONCIÈRE DE MONTRÉAL

On appeal from a judgment rendered on February 6, 2019 by the Honourable Justice Peter Kalichman of the Superior Court, District of Montreal DESCRIPTION : Application for leave to appeal after the expiry of time limit (Article 363 C.C.P .) Application to dismiss an appeal, and subsidiarily to furnish security (Articles 364 and 365 C.C.P .) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 11:58 Commencement of the hearing.

Identification of counsel. 11:58 Jessica Peterkin files an Amended Notice of Appeal. 12:00 Submissions by Jessica Peterkin. 12:22 Recess. 12:28 Resumption of the hearing. 12:29 Submissions by Mtre Markakis. 12:36 Reply by Jessica Peterkin. 12:43 Recess. 12:47 Resumption of the hearing. 12:47 By the Court: judgment – see page 3. 12:49 Conclusion of the hearing. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The Court is seized of two motions: • One by respondent Piscardelis to dismiss the appeal (on the basis that it was improperly initiated and that it has no reasonable

chance of success) and, subsidiarily, to have the appellant furnish security in order to guarantee the monetary condemnation and the costs of the appeal (art. 365 C.C.P. ); • One by appellant Peterkin for leave to appeal after the expiry of the time limit (art. 363 C.C.P. ) [ 2 ] In order to rule on these two motions, the Court will consider the following three questions: 1) Was the appeal improperly initiated? 2) Does the appeal have any reasonable chance of success within the meaning of both articles 363 and 365 C.C.P .? 3) In the affirmative, was it impossible for appellant Peterkin to act earlier within the meaning of

article 363 C.C.P .? Was the appeal improperly initiated? [ 3 ] The judgment was rendered at the hearing on February 6, 2019. [ 4 ] The 30-day time limit to appeal was to expire on March 8, 2019 (art. 360 C.C.P .). [ 5 ] The Notice of Appeal had to be served on respondent Piscardelis and notified to his lawyer before the expiry of that time limit (art. 358 C.C.P .). [ 6 ] As appears from the court record, the appellant did not serve the respondent until March 12, 2019, beyond the 30-day time limit.

In addition, the Notice of Appeal served on the respondent’s attorney in first instance on March 8, 2019 was different from the one served on the respondent on March 12, 2019 (it was incomplete, a few pages were missing). [ 7 ] The appellant states that she was unable to appeal within the prescribed time limit because the respondent’s mailing address on file with the Superior Court was out of date at the time she attempted to personally serve him and, when he was requested to provide his new mailing address, he only provided a P.O. Box address.

The appellant’s bailiff was therefore unable to personally serve the Notice of Appeal on March 8, 2019. On the very same day, the appellant’s bailiff, however, personally served a copy of the Notice of Appeal (albeit incomplete) on the attorney who had represented the respondent in first instance. [ 8 ] In the circumstances, the Court is of the view that the appeal was not improperly initiated. The appellant’s service of the Notice of Appeal would not have been late had the respondent provided appropriate coordinates contact information for being served in a timely manner.

In any event, the defect in service was corrected on March 12, 2019, and the respondent’s attorney was notified within the time limit. The respondent did not suffer any prejudice as a result of the delay. [ 9 ] The argument to the effect that the appellant failed to respect the Civil Practice Regulations of the Court (s. 27) by exceeding the maximum number of pages permitted in a notice of appeal is dismissed. The rule is that the “appellant shall succinctly state the grounds of appeal ( in no more than 10 pages )”.

The grounds of appeal in the appellant’s Notice of Appeal cover pages 2 (mid-page) to 11 (mid-page), therefore less than the 10 pages mentioned in

section 27.

Does the appeal have any reasonable chance of success? [ 10 ] The answer to this question is, in our view, no. [ 11 ] Deference must be granted to a trial judge, who benefits not only from the opportunity to review the documentary evidence but equally to hear the testimony of the witnesses and assess their credibility. [ 12 ] The appellant argues that the trial judge erred in law by ordering the reimbursement of the $75,000 deposit which he had characterized as being “non-refundable”. [ 13 ] The deposit in question was also characterized as a deposit against the purchase price, a fact admitted by the appellant, as noted by the trial judge at paragraph 22 of the judgment.

The judge was right to determine, on the one hand, that the respondent had met the criteria for an action for a transfer of title and, on the other hand, that he had been prevented from exercising that right by the appellant, thus entitling him to have the money refunded to him or to have the equivalent in damages awarded to him. [ 14 ] The appellant is seeking a retrial of the facts and arguments submitted in first instance and has failed to show any palpable and overriding error on the part of the trial judge in his assessment of the criteria to be met in order for an action for a transfer of title to succeed, including the respondent’s ability to pay the purchase price.

FOR THESE REASONS, THE COURT: [ 15 ] GRANTS the respondent’s Application to dismiss the appeal on the basis that it has no reasonable chance of success; and [ 16 ] DISMISSES the appeal, with legal costs against the appellant both on the application and on the dismissal of the appeal; and [ 17 ] DECLARES the appellant’s Application for leave to appeal and the respondent’s subsidiary conclusion for security to be moot. jacques chamberland, J.A.

louis rochette, J.A. claudine roy, J.A.