2021 QCCA 1318, 2021 QCCA 1318

Gothelf Phillips c. Succession de Douek 2021 QCCA 1318 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029643-210 ( 500-17-116834-212 ) MINUTES OF HEARING DATE: September 2, 2021 THE HONOURABLE MARK SCHRAGER, J.A. APPLICANT COUNSEL ROSLYN GOTHELF PHILLIPS Mtre HARVEY LAZARE ( Lazare & Altschuler ) RESPONDENT COUNSEL tHE ESTATE OF THE LATE ALBERT DOUEK Mtre ROBERT PANCER ( Phillips Friedman Kotler ) IMPLEADED PARTIES COUNSEL MAUREEN ROSEN DOUEK NICOLE MAGDER DOUEK Mtre ROBERT PANCER ( Phillips Friedman Kotler ) REGISTRAR OF THE LAND REGISTRY OFFICE OF MONTREAL MARIE-CLAUDE DRAPEAU (HD1189) PAQUETTE, BAILIFF ABSENT AND UNREPRESENTED

DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on July 29, 2021 by the Honourable Marc St-Pierre of the Superior Court , District of Montreal (Art. 30 al. 2 and 361 al. 1 C.C.P. ). Application of the applicant to suspend the provisional execution (Art. 660 and 661 C.C.P. ) Clerk at the hearing : Paola Garcia Rosario Courtroom: RC-18 HEARING 9:40 Commencement of the hearing.

Identification of counsel. 9:41 Submissions by Mtre Lazare. 10:06 Submissions by Mtre Pancer. 10:26 Reply by Mtre Lazare. 10:30 Discussion between the Court and the parties. 10:35 BY THE JUDGE: Judgment – see page 3. 10:36 Conclusion of the hearing. Paola Garcia Rosario, Clerk at the hearing JUDGMENT [ 1 ] Roslyn Gothelf Phillips (« Appellant ») seeks leave to appeal the judgment of the Superior Court, District of Montreal (the Honourable Justice Marc St-Pierre), rectified on July 29, 2021 quashing the seizure before judgment practiced on an immoveable property by Appellant.

The latter also seeks a stay of the order of provisional execution pronounced in the judgment. [ 2 ] Appellant is a beneficiary of a bequest of $700,000 made by the late Albert Douek which the succession has not paid and appears to take the position that it is unable to pay for want of liquid assets. Appellant has instituted an oblique action against the estate and the executors seeking inter alia an order for them to liquidate the residence formerly occupied by the deceased with his wife (now also deceased) and forming part of their family patrimony.

This is the immoveable property that was seized before judgment with judicial authorization pursuant to

Article 519 C.C.P. [ 3 ] The judge quashed the seizure expressing the opinion that only a spouse could avail him or herself of the seizure before judgment pursuant to

Article 519 C.C.P. so that a spouse’s estate (or a creditor of the succession, acting via an oblique action, as the Appellant) has no such right. The judge also stated that Appellant’s recourse was prescribed despite the fact that Appellant’s rights only arose from another judgment of the Superior Court of March 19, 2020. [1] [ 4 ] The judge is silent on the fears expressed in Appellant’s affidavit regarding the jeopardy to collect the $700,000 bequest.

These include allegations in the affidavit of malfeasance by the Impleaded parties, the daughters of the deceased which allegations are supported by findings of fact in a judgment of the Superior Court (Frederic Bachand, J.S.C., now of this Court) of March 19, 2020. The daughters are now the heirs to their mother’s estate as well as the liquidators of Mr. Douek’s succession. [ 5 ] Respondent and the Impleaded parties plead that the will of Mr. Douek provides that property bequeathed is not subject to seizure. However, the will provides that property is not subject to seizure for an heir’s debt.

The $700,000 debt is due by the estate Douek, not the heirs. [ 6 ] Moreover, Respondent relies on the will to take the position that the estate of Mr. Douek no longer has an interest in the family patrimony having bequeathed it to the Impleaded parties.

[ 7 ] The issues raised go beyond the interest of the parties and satisfy the requirements for leave to appeal pursuant to

Article 30 C.C.P. [ 8 ] Moreover, the judge gives no reasons for the order of provisional execution which are required in virtue of

Article 660 C.C.P. This, in itself, constitutes a weakness in the judgment. It also appears from the pleadings that should the assets be sold without the seizure pending, there is a risk of prejudice to Appellant whose recovery may well become illusory. In such circumstances, an order of stay is appropriate. [ 9 ] As well, proceedings should be stayed in first instance. The prescription of the recourse is in issue in this appeal and, I understand, has been raised in first instance by the Impleaded parties or Respondent in a motion to dismiss.

The possibility of contradictory judgments should be avoided. [ 10 ] Lastly, in the circumstances, it is appropriate to manage the appeal; FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 11 ] GRANTS Appellant’s motion for leave to appeal; [ 12 ] GRANTS permission to appeal the judgment of the Superior Court, District of Montreal (the Honourable Justice Marc St- Pierre), rectified on July 29, 2021 in record number 500-17-116834-212; [ 13 ] GRANTS Appellant’s motion to stay the provisional execution and ORDERS the stay of the provisional execution set forth in such judgment; [ 14 ] STAYS proceedings before the Superior Court until disposition of the present appeal; [ 15 ] ORDERS that the appeal proceed by way of memoranda; [ 16 ] ORDERS Appellant, after having notified a copy upon the other parties, to file in the Office of the Court, no later than OCTOBER 14, 2021 , five copies of a written argument not exceeding 20 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 17 ] ORDERS Respondent and Impleaded parties, after having notified a copy upon Appellant, to file in the Office of the Court, no later than DECEMBER 2, 2021 , five copies of a written argument not exceeding 20 pages and of his supplementary documents; [ 18 ] DIRECTS the parties’ attention to

article 376 C.C.P. and

section 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 19 ] REFERS the file to the Master of the Rolls to determine the date of a hearing of 90 minutes in duration ( 45 minutes for Appellant and 45 minutes for Respondent and Impleaded parties); [ 20 ] RECOMMENDS that this appeal be heard by the same bench of the Court that will hear the appeal in the related matter of Douek v.

Phillips (500-09-029158-201); [ 21 ] REMINDS the parties about Practice Direction G-3 (latest revision: April 20, 2021) which strongly encourages them to attach a technological version of their brief or memorandum and their book of authorities to each hard copy of those documents. The technological version must be saved on a USB key and must be in PDF format that allows keyword searches and includes hyperlinks from the table of contents to the brief, memorandum or book of authorities and, where applicable, from the argument to the schedules.

If the Word version of their argument is available, parties are also invited to put that version on the USB key. [ 22 ] THE WHOLE , legal costs to follow the outcome of the appeal. MARK SCHRAGER, J.A.