Schrager, Lavallée, Bachand

Appeal from a judgment of the Superior Court granting in part an action for latent defects. Dismissed. Application for a declaration of abuse and reimbursement of lawyers’ fees. Dismissed, with dissenting reasons.

The trial judge found that the appellant behaved fraudulently when selling an immovable by misleading the purchaser, the respondent Vessia, on the nature of the work she had done and by failing to disclose many latent defects. The judge therefore condemned the appellant to pay over $108,000 as a reduction of the sale price. The appellant was also condemned to pay the respondent, his spouse, and his mother-in-law $63,000 in damages and nearly $98,000 in reimbursement of a substantial portion (85%) of their lawyers’ fees. The appellant contests these two condemnations. The respondents consider the appeal abusive and ask that the appellant be condemned to reimburse the lawyers’ fees they have incurred on appeal.   

Merits of the appeal

With respect to the condemnation to pay the lawyers’ fees that the respondents incurred at trial, the appellant cannot question the judge’s finding regarding substantial breaches because she relies in part on testimony the transcript of which she failed to append to her brief. Furthermore, the appellant has not shown why the Court should intervene despite the considerable deference that is owed. The appellant’s alternative argument that the obligation to pay 85% of the fees is exaggerated is also unfounded because it disregards the fact that an order rendered under article 342 of the Code of Civil Procedure (CQLR, c. C-25.01) is more punitive than compensatory. In this case, the appellant’s punishment was not grossly disproportionate given the seriousness of the breaches noted by the judge, who concluded that the appellant’s fraudulent conduct when selling the immovable continued during the conduct of the proceeding with the aim of making it as difficult as possible for the respondents to exercise their action.

The appellant was also wrong to claim that there was double recovery due to the judge’s decision to award the respondents non-pecuniary damages and damages to compensate them for the time spent on certain corrective work.  The judge clearly explained that the non-pecuniary prejudice was more specifically related to the respondents’ health issues.

Application for a declaration of abuse and reimbursement of lawyers’ fees

It was not abusive for the appellant to try to eliminate or reduce the considerable sums she had to pay. A reasonable person would have tried to do likewise. Moreover, the fact that the appellant announced at the start of the hearing that she was abandoning a ground of appeal is not exceptional and therefore not an abuse. Her failure to file the transcripts and her incorrect argument that the errors raised were errors in law arise more from a lack of knowledge on how to present an appeal case than from abuse. Even though the judge noted the appellant’s abusive conduct at trial, the same finding is not possible on appeal. The weakness of the appellant’s grounds of appeal is not synonymous with abuse.

Bachand J.A., dissenting, would have granted the application for a declaration of abuse and condemned the appellant to reimburse the respondents $25,000. He found that, on appeal, she continued to use procedure to cause prejudice to the respondents.

Text of the decision: http://citoyens.soquij.qc.ca