2016 QCCA 1674, 2016 QCCA 1674

Kmec c. Bahlawanian 2016 QCCA 1674 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026348-169 (500-17-055326-105) MINUTES OF THE HEARING DATE : September 28, 2016 THE HONOURABLE MARTIN VAUCLAIR, J.A. PETITIONERS COUNSEL S. MARK KMEC HAYASA PRODUCTIONS LTD. Me S. MARK KMEC (Me S. Mark Kmec, avocat) RESPONDENTS COUNSEL KRIKOR BAHLAWANIAN ARAXI BAHLAWANIAN Me NAGI EBRAHIM (Ebrahim, Macleod) DESCRIPTION : Application for leave to appeal from a judgment rendered on September 2, 2016 by the Honourable Pepita Capriolo of the Superior Court of Quebec, district of Montreal (arts. 30 para. 2, 31 and 357 C.C.P. ) HEARING

9 : 37 Roll call and identification of the parties. Suspension. 10 : 42 Resumption of the hearing. Representations by Mtre. S. Mark Kmec. 11 : 01 Suspension. 11 : 24 Resumption of the hearing. Representations by Mtre. Ebrahim. 11 : 28 Mtre. Ebrahim produces schedules, to which Mtre. Kmec opposes. 11 : 29 Mtre. Ebrahim produces sources. 11 : 34 Mtre. Ebrahim asks the judge for the motions to be declared abusive. 11 : 35 Reply by Mtre. S. Mark Kmec. 11 : 40 Suspension of the hearing. 11 : 45 Resumption of the hearing. BY THE JUDGE : Judgment – page 3. (

s) Annabel David Clerk BY THE JUDGE JUDGMENT [ 1 ] The Petitioner seeks leave to leave to appeal the judgment rendered on September 9, 2016 by the Superior Court of Quebec, district of Montreal (The Honourable Pepita G. Capriolo) ordering the garnishee Mtre Mark Kmec to remit the sum of $9,600 to the bailiff charged with the execution of a judgment against the Petitioner. Mtre Kmec filed a negative declaration stating that the money held in trust does not belong to the judgment debtor. It is held in trust as security for costs in another court case between essentially the same parties. [ 2 ] The application is governed by

article 30 of the Code of civil procedure , but one must also remember

article 18 C.c.p. that establishes the overriding principle of proportionality. Errors alone do not justify leave to appeal: Société en commandite Les bois de Pierrefonds c. Domaine de parc Cloverdale , 2007 QCCA 292 ; Celliers Rosyma inc. c.

Urgel Charrette Transport inc ., 2010 QCCA 1822 . [ 3 ] In the circumstances of this file, notably the abusive behaviour of Hayasa Productions noted in the Superior Court judgment on the merits rendered on April 1 st , 2016 and the duty of judges to observe the principle of proportionality regardless of the stage at which they intervene while having regard to the proper administration of justice, the Petitioner has not convinced me that leave should be granted. [ 4 ] The verbal request of the Respondents to declare the motion abusive is, however, without merit.

FOR THE FOREGOING REASONS, the undersigned : [ 5 ] DISMISSES the motion, with legal costs on appeal against the petitioner. [ 6 ] DISMISSES the verbal motion to declare the motion abusive, without legal costs. MARTIN VAUCLAIR, J.A.