2014 QCCA 2310, 2014 QCCA 2310

Muddiman c. De Chabris 2014 QCCA 2310 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024874-141 ( 500-11-047105-149 ) MINUTES OF THE HEARING DATE: December 9, 2014 THE HONOURABLE madam justice MANON SAVARD PETITIONER COUNSEL RICHARD MUDDIMAN personnaly RESPONDENT COUNSEL ANDREW MARKS DE CHABRIS Mtre NICOLAS SCHEIB IMPLEADED PARTY COUNSEL LE GROUP SERPONE SYNDIC DE FAILLITE INC. DESCRIPTION: Motion for leave to appeal from a judgment rendered on November 24, 2014 by Madam Justice Guylène Beaugé of the Superior Court, district of Montreal. (Articles 26 and 494 C.C.P.)

Clerk: Asma Berrak Courtroom: RC.18 HEARING 15 :14 Commencement of the hearing. Identification of counsel. Submission by Mr. Muddiman. 16:05 Submission by Mtre Scheib. 16:29 Reply by Mr. Muddiman. 16:33 Suspension. 16:40 Resumption. Judgment-see page 3. 16:47 Conclusion of the hearing. Clerk BY THE JUDGE JUDGMENT [ 1 ] Pursuant to

section 193(

e) of the Bankrupty and Insolvency Act ( BIA ), Petitioner seeks for leave to appeal a judgment rendered by the Superior Court for the District of Montreal (Hon.

Guylène Beaugé) on November 24, 2014. [ 2 ] The trial judge granted a motion to lift the stay of proceedings filed by the Respondent Andrew Marks de Chabris (the Creditor) and authorized the latter to continue the proceedings initiated before the Ontario Superior Court in 1999 against Petitioner. [ 3 ] The trial judge also granted the Creditor’s motion to contest the Trustee’s disallowance of his proof of claim in the bankruptcy of Petitioner and suspended Petitioner’s discharge from bankruptcy pending final adjudication in the proceedings initiated in Ontario, or further order of the Court. [ 4 ] Petitioner raises various grounds of appeal by which he essentially contests the way the trial judge managed the hearing (admitting pleadings at the last minute, not allowing him to testify on the merits of the proceedings in Ontario, ignoring the absence of evidence to substantiate the Creditor’s claim). [ 5 ] The factors to be considered on an application for leave to appeal under

section 193(

e) of the BIA are the following [1] : […] (

a) whether the point of appeal is of significance to the practice; (

b) whether the point raised is of significance to the action itself; (

c) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and (

d) whether the appeal will unduly hinder the progress of the action. [ 6 ] Having considered these criteria, I am of the view that the application for leave to appeal should be dismissed. [ 7 ] The trial judge exercised her discretion under

section 69.4 of the BIA . She found that the Creditor’s claims in Ontario are complex and cannot be disposed of under the

summary procedure of section 135(1.1) of the BIA . She also found that the Creditor is likely to be materially prejudiced by the continuance of the stay since Petitioner is a necessary party to the Ontario proceeding for the adjudication of the issues raised by the action underlying the fraud which is invoked. Since the action is based on a debt that cannot be released by an order of discharge from bankruptcy (section 178(1)d and 178(1)e of the BIA ), the lifting of the stay became all the more justified in the opinion of the Judge.

[8] Petitioner has failed to convince me that it is arguable that the trial judge erred in coming to her conclusions and that the appealis prima facie meritorious. Both parties had filed extensive written representations commenting the Ontario proceedings and Petitioner,who was represented at the time, had the opportunity to argue the contested motions. [9] I am therefore of the view that the application for leave should not be allowed. FOR THESE REASONS, THE UNDERSIGNED: [10] DISMISSES the motion for leave to appeal; [11] WITHOUT costs. MANON SAVARD, J.A. [1] Lloyd W. Houlden, Geoffrey B. Morawtez & Janis P.

Sarra, The 2012-2013 Annotated Bankruptcy and Insolvency Act, supra, note4, p. 922. Voir également : Norbourg Groupe financier inc. (Syndic de), supra, note 5, paragr. 16 à 20; Medical InternationalTechnologies (MIT Canada) Inc. c. V & G International Licensing Corp., 2010 QCCA 1826 , 2010 QCCA 1826 (juge unique),paragr. 8; Asselin c. Daniel Girouard & Associés inc., 2013 QCCA 159 , paragr. 28.