2023 QCCA 1428, 2023 QCCA 1428

Doubletex c. Leduc 2023 QCCA 1428 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030752-232 ( 500-17-109646-193 ) MINUTES OF HEARING DATE: November 10, 2023 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPLICANT COUNSEL Doubletex Mtre Denis A.

Lapierre ( Sweibel Novek Rabbat ) Absent RESPONDENTS COUNSEL Alain Leduc Solange Gariepy Mtre Hila Huelsen ( Hila Sima Huelsen, Avocate ) Absent DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on September 27, 2023 by the Honourable Patrick Ouellet of the Superior Court , District of Montreal (Art. 32 C.C.P .) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING Continuation of the hearing held on November 9, 2023. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 3.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The Applicant seeks leave to appeal from the judgment rendered orally by the Superior Court, District of Montreal (the honourable Patrick Ouellet) on September 27, 2023, granting in part the Respondents’ application to extend the time for inscription. [ 2 ] The conclusions of the judgment are as follows: PROLONGE péremptoirement, jusqu’au 12 octobre 2023, le délai pour la notification et production de la défense reconventionnelle, la mise en état du dossier et pour déposer la demande d’inscription pour instruction et jugement; DÉCLARE les demandeurs forclos de produire un rapport d’expert et de procéder à l’interrogatoire hors Cour d’un représentant de la défenderesse; LE TOUT avec frais de justice contre les demandeurs. [ 3 ] The Respondents filed their defence to the cross-demand and the inscription within the delay set by the judge. [ 4 ] The Applicant seeks leave to appeal so that it can ask the Court to dismiss the Respondents’ application to extend the time for inscription, with the result that the Respondents’ action to recover their property will be dismissed and the Applicant’s cross-demand for occupation rent, legal fees and punitive damages in the total amount of $428,506.54 will proceed by default. [ 5 ] The Applicant presented its motion for leave to appeal under

Article 32 C.C.P. Although this issue is not altogether clear, [1] I am of the view that the judgment granting in part an application to extend the time for inscription is a case management measure and will consider the motion on that basis. [ 6 ] The test under

Article 32 C.C.P. is that leave may be granted only if the judgment “appears unreasonable in light of the guiding principles of procedure” / “ paraît déraisonnable au regard des principes directeurs de la procedure ”. If that test is met, the granting of leave remains discretionary. [ 7 ] In this case, the Respondents made an application to extend the time for inscription before the expiry of the delay to do so.

At that time, the remaining steps before inscription were the examination out of court of a representative of the Applicant, the filing of an expert report and the filing of the defence to the cross-demand. [ 8 ] The judge essentially dismissed that application. He did not give the Respondents additional time in which to conduct the examination and file an expert report. Rather, he declared that the Respondents were precluded from completing those steps.

He did, however, allow the Respondents to file their defence and the inscription within a peremptory 15-day delay. [ 9 ] This appears to me to be a reasonable exercise of the judge’s discretion. He found that the Respondents had not been diligent in moving the case forward. He did not give them an extension to complete the steps they should have completed. However, he did let them file the defence and the inscription.

Had he not done so, it would mean that a party seeking an extension of the delay to inscribe before the expiry of that delay must nevertheless inscribe, in order to preserve his rights in the event that his application is dismissed. [ 10 ] Because of the lack of diligence by the Respondents, I will not award them their costs. FOR THESE REASONS, THE UNDERSIGNED: [ 11 ] DISMISSES the motion for leave to appeal, without costs. STEPHEN W. HAMILTON, J.A.