Court of Appeal of Quebec

Succession de Vaia

Schrager, Baudouin, Bachand

Appeal from a judgment of the Superior Court granting an application for the reimbursement of the extrajudicial fees of the liquidator of a succession and dismissing the application of a legatee. Allowed in part.

The appellant foundation is a legatee of Vaia, who died in October 2017. The respondent acted as the liquidator of the succession from May 2018 until his resignation on June 25, 2019, a few days before the appellant’s application seeking to replace him as liquidator was to be heard. Meanwhile, Aberback was appointed interim liquidator until the trial judge confirmed her appointment as permanent liquidator. The judge determined that it was legitimate for the succession to reimburse the professional fees incurred by the respondent to defend himself in accordance with article 789 of the Civil Code of Québec (S.Q. 1991, c. 64). As for the professional fees paid to his company, his wife’s company, and his daughter, the judge accepted the explanations the respondent gave and believed those payments to be legitimate expenses of the succession. However, he did not allow the appellant to have its legal fees reimbursed by the succession. Finally, because he considered he could not make an order against an impleaded party, the judge did not order the respondent’s former law firm, Séguin Racine, Avocats Ltée, to remit the monies they hold in trust to the new liquidator, Aberback.

The judge did not err in ordering the reimbursement of expenses incurred by the respondent in his capacity as liquidator. The record does not demonstrate that the professional fees were so unreasonable that one should conclude that by paying them, the respondent acted dishonestly or exceeded his mandate as liquidator. Contrary to what the appellant claims, it would be inappropriate to return the case to the Superior Court to present new evidence to determine which portion of the fees are reasonable. The appellant, who spent $146,799 in lawyers’ fees, in particular to replace the respondent as liquidator, is entitled to the reimbursement of the $35,000 that it paid for the benefit of all the other heirs and in the interest of the succession. Finally, the judge erred in law by refusing to order the law firm Séguin Racine to remit the sum of $45,946 to Aberback in her capacity as liquidator of the succession.

Bachand, J.A. is of the view that the legal fees incurred by the respondent should not entirely be supported by the succession. According to him, the respondent failed to comply with his duty of impartiality and his expenses were not all made for the benefit of all the heirs. He also acted imprudently and negligently by vigorously contesting the application for replacement presented by the appellant before suddenly changing course a few days prior to the hearing. Finally, Bachand, J.A. would also increase the proportion of the appellant’s legal fees that ought to be paid by the succession.

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