2022 QCCA 611, 2022 QCCA 611

Proposition de Honey 2022 QCCA 611 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029928-223 (760-11-007845-213) DATE: May 4, 2022 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A. IN THE MATTER OF THE PROPOSAL OF ROXANNE HONEY: CHARLES O’BRIEN APPELLANT – Applicant v. ROXANNE HONEY RESPONDENT – Insolvent person et GROUPE SERPONE INC.

RESPONDENT – Licensed Insolvency Trustee et MICHAEL WEBBER, in his capacity as liquidator of the succession of Joseph Honey RESPONDENT – Intervener JUDGMENT [ 1 ] The Appellant obtained a judgment for $52,929.89 with interest against the Respondent on May 27, 2010 and he registered a legal hypothec against her property in Pincourt. Honey exercised the hypothecary recourse of taking in payment in 2019 and obtained judgment declaring him owner of the property on December 7, 2020. [1] [ 2 ] The Respondent Honey appealed in Court record 500-09-029288-214 and the Appellant made a motion to dismiss the appeal.

On March 13, 2021, two days before the presentation of the motion, the Respondent Honey filed a notice of intention to make a proposal in bankruptcy. The trustee to her notice of intention issued a notice of stay of proceedings and the Court took act of the notice and stayed the appeal. [2] That appeal is not presently before the Court. [ 3 ] The Appellant made a motion in Superior Court to lift the stay on March 22, 2021. He proceeded with the motion on February 11, 2022.

The liquidator of the Respondent Honey’s father’s estate claimed to be a creditor and intervened in the proceedings. [ 4 ] The judge allowed the intervention and dismissed the motion to lift the stay. [3] [ 5 ] The Appellant filed a notice of appeal on both issues and the Respondent Honey made a motion to dismiss the appeal on the ground that it has no reasonable chance of success.

The Court is seized of that motion. [ 6 ] The question of whether the Appellant became owner of the property as a result of the judgment declaring him owner and notwithstanding the appeal from that judgment is central to the issues of whether the notice of intention had the effect of staying the appeal and whether the stay should be lifted. That question merits the attention of the Court. [ 7 ] The Appellant asked that, if the present appeal was allowed to continue, it be heard at the same time as the motion to dismiss the appeal in Court record 500-09-029288-214 or that the two appeals be joined.

That does not appear to be appropriate. If the present appeal is allowed and the stay is lifted or found not to be applicable, the Appellant can then proceed with his motion to dismiss the appeal in Court record 500-09-029288-214.

FOR THESE REASONS, THE COURT: [ 8 ] DISMISSES Respondent’s Application to Dismiss Appeal, with legal costs. YVES-MARIE MORISSETTE, J.A. STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A. Mtre Leslie A. Beck GRAVERNOR BECK For the Appellant Mtre Bruce Taub B.T.L.G. LAW GROUP For Roxanne Honey Mtre Andreas Stegmann GROUPE SERPONE For Groupe Serpone inc. Mtre Paul-Yvan Martin MARTIN, CAMIRAND, PELLETIER For Michael Webber, in his capacity as liquidator of the succession of Joseph Honey Date of hearing: April 28, 2022