2020 QCCA 406, 2020 QCCA 406

Tarasenko Kovalenko c. Vasilevich Manakhov 2020 QCCA 406 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028769-206 ( 500-17-074682-124 ) MINUTES OF HEARING DATE: March 9, 2020 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. PATRICK HEALY, J.A. LUCIE FOURNIER, J.A. APPELLANT COUNSEL ANNA TARASENKO KOVALENKO Mtre KRISTEN PETITCLERC ( Renno Vathilakis Inc. ) RESPONDENT COUNSEL YURI VASILEVICH MANAKHOV Mtre MICHAEL PANDEV ( Pandev Longpré ) On appeal from a judgment rendered on November 29, 2019 by the Honourable Guylène Beaugé of the Superior Court , District of Montréal .

DESCRIPTION: Application to dismiss the appeal (Article 365 C.C.P .) Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 10:34 a.m. Commencement of the hearing. Identification of counsel. 10:34 a.m. Submissions by Mtre Pandev. 10:40 a.m. Submissions by Mtre Petitclerc. 10:53 a.m. Reply by Mtre Pandev. 10:56 a.m. Recess of the hearing. 11:23 a.m. Resumption of the hearing.

11:23 a.m. Judgment – see page 3. Robert Osadchuck, Clerk at the hearing JUDGMENT [ 1 ] We are tasked with the adjudication of a motion to dismiss the appeal. [ 2 ] This is an action in reimbursement of loans by Respondent against Appellant, his step-daughter. [ 3 ] The judge declared that the loan agreement under private signature was null because it was not registered contrary to its terms.

The fact that the document is not susceptible of registration is nowhere mentioned. [ 4 ] However and despite this finding, the judge takes cognizance of the proof of advances of monies or monies worth and rejects the defense put forward by Appellant.

As such, the judge condemns Appellant to reimburse $370,000 plus interest and special indemnity. [ 5 ] The judge finds Appellant completely lacking in credibility and, as such, rejects the defense that the monies claimed were reimbursement of advances made by Appellant to Respondent. [ 6 ] The appeal raises two grounds: 1) Having decided that the document relied upon by Respondent was a nullity, the judge should have dismissed the action; and 2) The judge erroneously gave judgment based on a claim not made. [ 7 ] The judge appears to have erred in considering the contract null or not enforceable for want of registration, which was an impossibility.

But for this error, the contract would be binding and would serve as an interruption of prescription of Respondent’s claim. [ 8 ] In addition to the document, the proof shows that Respondent made loans to Appellant, which have not been repaid. Respondent invokes in the introductory motion of suit an excess of $1,250,000 advanced to Appellant. [ 9 ] There was more than sufficient reason to condemn Appellant to repay $370,000 in accordance with the conclusion sought in the written proceedings.

The outcome would not change on the merits of the appeal on any reasonable view of the matter. [ 10 ] Consequently, the appeal has no reasonable chance of success. FOR THESE REASONS, THE COURT: [ 11 ] GRANTS the motion to dismiss the appeal with legal costs; [ 12 ] DISMISSES the appeal with legal costs. MARK SCHRAGER, J.A. PATRICK HEALY, J.A. LUCIE FOURNIER, J.A.