2016 QCCA 261, 2016 QCCA 261

On c. Banque de Montréal 2016 QCCA 261 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025814-153 (500-22-200989-138) MINUTES OF THE HEARING DATE : February 10, 2016 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER ATTORNEY ARCHAT ON Mtre giacomo zucchi (Sylvestre Fafard Painchaud) RESPONDENT ATTORNEY BANQUE DE MONTRÉAL Mtre MARIE-CHRISTINE BOURGET ( Bélanger, Sauvé SENCRL ) IMPLEADED PARTIES ATTORNEY LES PRÊTS MONT-VAL INC. L’OFFICIER DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION DE MONTRÉAL SHÉRIF DU DISTRICT DE MONTRÉAL Mtre XAVIER LAFORCE-BRUNET (Brunet Greiss)

DESCRIPTION : Motion for leave to appeal a judgment rendered on December 3, 2015 by the Honourable Judge Brigitte Gouin of the Quebec Court, district of Montreal. (Art. 26 al.2 (3) and 494 C.c.p. ) Clerk : Mihary Andrianaivo Courtroom : RC-18 HEARING 9:56 Beginning of the hearing. Submissions by Mtre Zucchi. 10:20 Submissions by Mtre Bourget. 10:38 Submissions by Mtre Brunet. 10:40 Rebuttal by Mtre Zucchi. 10:41 Recess. 11:25 Resumption of the hearing. BY THE JUDGE : Judgment – See page 4. End of the hearing.

Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Applicant seeks leave to appeal the judgment of the Court of Quebec, District of Montreal (the Honourable Brigitte Gouin), dismissing Applicant’s motion seeking to vacate the sale of her home by the Respondent judgment creditor. [ 2 ] Judgment was obtained by default to appear on June 17, 2013. On October 25, 2013, the writ of seizure, notice to debtor of the sale and other related documents were served by bailiff at the residence of Applicant, at 11:05 am, on a weekday, when, not surprisingly, Applicant was absent.

The documents were left by the bailiff with Applicant’s 13 year-old son as a “reasonable person”. Applicant’s motion before the Court of Quebec, supported by her affidavit, contests the validity of this service and states that she only learned of the sale of her home after the fact on August 26, 2014 when the purchaser’s representative knocked at her door. [ 3 ] The judgment of the Court of Quebec dismissed the motion because Applicant did not satisfy her burden to demonstrate that the service was improper. The judge also found that Applicant’s motion was filed beyond the 90-day delay provided by

article 700 C.C.P. [ 4 ] The judge did not consider the extension of delay sought in the motion (dated August 29, 2014) given that Applicant contended

that she only learned of the sale of her home on August 26, 2014. The judge never addressed whether Applicant had actual knowledge of the impending sale, the subject of the documents served on her son on October 25, 2013. Nor is there any direct consideration of whether a 13 year-old can, objectively, be a “reasonable person” for purposes of receiving service of legal documents. The judge analyzed the son’s status as a “reasonable person” under

article 123 C.C.P. primarily on his testimony and the proof at trial (approximately two years after the service) of his capacity; all information not available to the bailiff at the door at the time of service. [ 5 ] The present matter is governed by

article 26 of the old Code of civil procedure since the judgment and the motion for leave pre- date January, 2016. The new Code of civil procedure , in

article 124, provides that service be made at a residence “in the care of a person who resides or works there and appears to be capable of receiving the document”. The new disposition may not differ fundamentally from the “reasonable person” of the old C.C.P. The question is not without interest. [ 6 ] Counsel represents that there is no judgment of this Court on point. [ 7 ] Certain articles of the C.C.Q. address the legal capacity of children (e.g.

article 156 C.C.Q. ) but none of these provisions appears to have been considered in the judgment. [ 8 ] It appears to the undersigned, as demonstrated in the foregoing narrative, that several points of principle arise from the circumstances of this case, which justify that leave be granted. FOR THE FOREGOING REASONS, THE UNDERSIGNED: [ 9 ] GRANTS the motion for leave to appeal; [ 10 ] GRANTS leave to appeal the judgment of the Court of Quebec, District of Montreal, dated December 3, 2015; [ 11 ] COSTS to follow suit. MARK SCHRAGER, J.A.