2019 QCCA 116, 2019 QCCA 116

Giancristofaro-Malobabic c. O'Connor 2019 QCCA 116 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027913-185 (500-11-029529-068) MINUTES OF THE HEARING DATE: JANUARY 21, 2019 CORAM: THE HONOURABLE JACQUES CHAMBERLAND , J.A. GENEVIÈVE MARCOTTE , J.A. PATRICK HEALY , J.A. APPELLANTS COUNSEL BRANA GIANCRISTOFARO-MALOBABIC PRESENT AND SELF-REPRESENTED 9114-8965 QUÉBEC INC. MONROI INC. Mtre RICHARD FRIEDMAN Mtre RAMAN BERWARI (Bell Rudick & Friedman) RESPONDENT COUNSEL daniel f. o’connor Mtre LUC SÉGUIN (Bélainsky et avocats) IMPLEADED PARTY 4278020 CANADA INC. (dissolved)

On appeal from a judgment rendered on September 21, 2018 by the Honourable Justice Michel A.

Pinsonnault of the Superior Court, District of Montreal DESCRIPTION : Amended Motion to dismiss the appeal (Article 365 C.C.P .) Amended de bene esse application for leave to appeal after the expiry of the time limit (Articles 30, 31, 357 and 363 C.C.P .) Application of Brana Malobabic for suspension of the provisional execution (Article 660 C.C.P .) Application of 9114-8965 Québec inc. and Monroi inc. to suspend the provisional execution (Articles 660 and 661 C.C.P .) Application by Daniel O’Connor to request a suretyship on appeal (Article 364 C.C.P.) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 2:00 Commencement of the hearing.

Identification of counsel. Mtre Séguin represents the respondent only for the judgment on the cross-demand. Daniel O’Connor is self- represented for the plaintiff’s demand. 2:01 Submissions by Mtre Friedman. 3:05 Submissions by Mrs Giancristofaro-Malobabic. 3:36 Recess. 4:01 Resumption of the hearing. 4:01 By the Court: judgment – see page 3.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The Court is seized with the following motions : • a motion by respondent to dismiss the appeal (nº 7.1); • a motion by appellants de bene esse for leave to appeal after the expiry of the time limit (nº 7); • a motion by appellants MonRoi and Inn De to suspend the execution of the judgment pending the appeal (nº 7.2); • a motion by appellant Malobabic to suspend the execution of the judgment pending the appeal (nº 7.3); • a Motion by respondent to request a suretyship on appeal (nº 7.4). [ 2 ] “Additional grounds of appeal”, dated December 14, 2018, were filed with the Court by, on the one hand, Mrs Malobabic and, on the other hand, MonRoi and Inn De, as authorized by our colleague Hamilton on November 30, 2018. * [ 3 ] The Court will deal first with respondent’s Motion to dismiss the appeal and appellants’ Motion de bene esse for leave to appeal after the expiry of the time limit. [ 4 ] Respondent’s motion raises two arguments.

One is that the appeal was improperly initiated in that leave to appeal is required under

article 30, para. 2

(3) C.C.P . since appellants’ Defence and cross-claim was dismissed because of its “abusive nature”. The other ground of appeal is that the appeal “has no reasonable chance of success” under

article 365, para. 1 C.C.P. [ 5 ] Appelants’ Motion de bene esse for leave to appeal raises the same grounds of appeal that were raised in the Notice of appeal and in the Additional grounds of appeal.

They are presented under 5 sections: Respondent’s recourse against former clients in the same matter, Conflict of interest during the mandate, Securities Law, Article 241(6) of the CBCA and Unanimous Shareholders Agreement. [ 6 ] One question is common to the Court’s analysis of both motions: Does the appeal have a reasonable chance of success? [ 7 ] If the answer to this question is no, it is the end of the road for the appellants.

The motion to dismiss the appeal will be granted and their Motion de bene esse for leave to appeal dismissed, and the other motions will thereafter be without object. [ 8 ] If the answer is yes, the Court will continue with its analysis of the various questions raised by all motions. * [ 9 ] The Court is of the view that the appeal has no reasonable chance of success. [ 10 ] The judge of first instance rendered a judgment of 285 pages following 38 days of hearing. The judgment is well structured and written with care.

The analysis of the evidence, and more particularly the assessment of the credibility of the witnesses, is exhaustive and thorough.

It is at the very heart of the decision. [ 11 ] The conclusions of the judge of first instance regarding inter alia the existence of a valid and binding agreement between respondent and appellant Malobabic entitling the former to receive 1% of MonRoi common shares, the numerous acts of oppression to which respondent was subjected, and finally, the absence of any professional or ethical misconduct on the part of respondent in the execution of his legal mandate for the appellants are all supported by the evidence and reasonable. [ 12 ] The conclusions regarding the absence of any abuse in respondent’s Motion in oppression and, on the contrary, the abusive nature of appellants’ proceedings and actions are equally supported by the evidence.

These conclusions of fact are fair and reasonable. [ 13 ] Similar comments apply to the conclusions of the judgment regarding the remedies to which respondent O’Connor is entitled under the CBCA (the value of MonRoi shares), the Civil Code (moral damages) and the Code of Civil Procedure (abuse of procedure). [ 14 ] In the end, despite the many points raised in their initial Notice of Appeal and in their Additional grounds of appeal, the appellants fail to show any error of law in the judgment a quo or any palpable and overriding error in the assessment of the evidence that could justify the intervention of this Court.

FOR THESE REASONS, THE COURT: [ 15 ] GRANTS respondent’s Requête en rejet d’appel (nº 7.1), with legal costs, and DISMISSES the appeal, also with legal costs; [ 16 ] DISMISSES appellants’ Motion de bene esse for leave to appeal (nº 7), with legal costs; and

[ 17 ] STRIKES , because they are now without object, appellants MonRoi and Inn De’s Motion to suspend the execution of the judgment pending the appeal (nº 7.2), appellant Malobabic’s Motion to suspend the execution of the judgment pending the appeal (nº 7.3) and respondent O’Connor’s Motion to request a suretyship on appeal (nº 7.4), without costs in all cases. JACQUES CHAMBERLAND, J.A. GENEVIÈVE MARCOTTE, J.A. PATRICK HEALY, J.A.