Representative Mandates

The Nowacki Saga: A Long-Running Real Estate Legal Dispute

The legal saga between Domaine Baie Mud IPHO Inc. and the Nowacki defendants spans nearly two decades, involving several complex legal proceedings. This story illustrates the importance of understanding not only the legal issues, but also the dynamics of the relationships between the parties and the impact of actions taken in a real estate context.

1. The Initial Context of the Dispute

The dispute began in 2005 when the defendants, Czeslaw Nowacki and his wife, acquired a parcel of land in the Val-des-Monts region of Quebec. Access to their northern property relied on the use of a key road, Hall Road, over which all neighboring properties had a right of way to access their respective properties. However, in order for Mr. Nowacki to use this road, he had to cross a small parcel of land measuring a few meters, which was later acquired by the plaintiff.

2. The Initial Conflicts and Land Acquisition

The plaintiffs, Nicole Maev Calot-Marchini and her company, Domaine Baie Mud, acquired their respective lots in 2006 and 2008. Tensions arose when they installed a rope to restrict access to Hall Road, which the defendants perceived as an obstruction to their right of way, which they had previously used unchallenged. In 2008, Faubert sold his land, including the Hall Road property, to the defendants, who thus became the legitimate owners of the road. However, they still found themselves landlocked and had to cross a parcel belonging to the plaintiffs to access their property.

3. Action for Recognition of a Right of Way

Faced with this situation, the defendants filed a lawsuit seeking a right of way over the plaintiffs’ land. In 2012, Superior Court Justice Jean-Pierre Plouffe established a right of way in favor of the defendants to open up their land. Nowacki v. Domaine Baie Mud IOPHO inc., 2012 QCCS 5005 (CanLII) The plaintiffs contested this decision, but the Court of Appeal dismissed their appeal in 2014, thus upholding the defendants’ right of way. Domaine Baie Mud IOPHO inc. v. Nowacki, 2014 QCCA 1226

4. Attempts to Annul the Sale of Hall Road

Although the defendants only requested recognition of their right-of-way, all other legal proceedings were initiated by the plaintiffs. Dissatisfied with the granting of the right-of-way and ownership of Hall Road to the defendants, they attempted to annul the sale, alleging fraudulent actions by the defendants. The Court dismissed this request, marking a first legal defeat for the plaintiffs.

5. Actions for Damages

On February 18, 2011, the plaintiffs filed an action for $300,000 in damages after a tree branch, apparently located on the defendants’ land, injured Ms. Marchini. However, this action was dismissed without even going to trial, as the plaintiffs had withdrawn their claim without costs.

6. The 2017 Lawsuits and Abusive Attempts at Intimidation

On April 24, 2017, the plaintiffs filed two new lawsuits against the defendants.

1. 1. The first sought to relocate the right-of-way established in 2012.
   2. The second was an action for damages in the spectacular amount of $8,650,649.10, in which they again accused the defendants of deceiving them during the purchase of the Faubert property and of being liable for their lost business profits.

Neither of these claims would go to trial. In 2018, the plaintiffs even attempted to have the defendants’ lawyers disqualified. The Court rejected this attempt, calling it a strategic maneuver aimed at ousting the attorneys. In March 2019, the court granted an entry for judgment on deemed discontinuance, as the plaintiffs had not set down their cases for trial in time. In November 2019, their application to be relieved of this default was also dismissed by the Court.

7. The 2019 Application for Acquisitive Prescription

In May 2019, the plaintiffs filed a new application for acquisitive prescription on a narrow strip of land located between Hall Road and their properties.

In 2023, an overwhelming decision was rendered on this application, not only dismissing the application for acquisitive prescription on the strip of land but also convicting the plaintiffs once and for all of abuse of process, hopefully bringing an end to the legal saga between the parties.

Victories and Gains for the Clients

• Confirmation of the defendants’ ownership of Hall Road and their right of way over the several meters of land.
• Complete dismissal of the plaintiffs’ claims, including:
• • Annulment of the sale of Hall Road.
  • Acquisitive prescription on the strip of land adjacent to Hall Road.
  • Change in the right-of-way.
  • A claim for $8 million in damages.
  • A claim for $300,000 for injuries caused by a branch.
  • Dismissal of the charges of abuse of process against the defendants.
• The Court acknowledged the plaintiffs’ abuse of process, with a reprimand against their counsel.
• The plaintiffs were ordered to reimburse the defendant’s legal fees.
• The plaintiffs were ordered to pay punitive damages and an amount for disturbance and inconvenience.

Domaine Baie Mud IPHO inc. v. Nowacki, 2023 QCCS 2520 (CanLII)

The role of Ms. Sophie-Anne Décarie

As the defendants’ lawyer for over 15 years, I represented them rigorously, while demonstrating prudence and empathy in the face of the conflictual situation in which they found themselves.

My role consisted of:

• Obtaining their access to their property by defending their right of way and securing their access to their property.
• Protecting their property rights against the plaintiffs’ multiple unfounded claims.
• Refuting abusive accusations and delaying tactics aimed at intimidating and financially draining them.
• Ensuring rigorous monitoring of the proceedings, which led to the plaintiffs withdrawing several of their claims due to lack of seriousness or evidence.
• Strategically litigating the cases, which enabled us to prevail in the only case initiated by our clients and to dismiss all of the plaintiffs’ unfounded claims.

Thanks to a solid, structured, and strategic defense, we were able to preserve our clients’ rights and have the actions taken against them recognized as abusive.

References:

Nowacki v. Domaine Baie Mud IOPHO inc.,2012 QCCS 5005

Domaine Baie Mud IOPHO inc. c. Nowacki, 2014 QCCA 1226

Domaine Baie Mud IPHO inc. c. Nowacki, 2023 QCCS 2520

The Bettencourt Saga: A Dispute over Right of Way and Acquisitive Prescription

The case Gestion Architectonic inc. v. Bettencourt illustrates a complex dispute over property and easements between neighbors, involving conflicting claims regarding a right of way and allegations of acquisition through acquisitive prescription. The litigation proceeded to the Court of Appeal, which partially modified the trial court’s judgment due to a landlocked property situation.

1. Initial Context of the Dispute

The dispute originated from a property located in Gatineau. Gestion Architectonic inc., owner of a building (lot [1]), asserted its full enjoyment of its land and challenged the use of a right of way by Herminio Bettencourt, owner of the neighboring lot (lot [2]).

The disputed right of way stems from a 1949 deed of sale in which a common predecessor of the parties, Louis Lafrance, sold lot [2] while establishing a servitude in favor of lot [1]. The exact location of the right of way and the manner in which it could be exercised were at the heart of the conflict.

2. Claims at First Instance

Gestion Architectonic inc. filed a legal action seeking:

• Recognition that the right of way should be strictly limited to pedestrian use
• An order prohibiting Bettencourt from using the servitude for vehicle traffic and parking
• An injunction requiring Bettencourt to stop encroaching on its land
• Damages for the removal of a fence and water accumulation from Bettencourt’s roof

In response, Bettencourt filed a counterclaim in which he sought:

• Recognition of acquisitive prescription over a strip of land from lot [1] approximately one meter wide
• Confirmation that the right of way included vehicle use, not just pedestrian access

3. Superior Court Decision

In a decision rendered on March 13, 2020, Justice Marie-Josée Bédard found that:

• Bettencourt had acquired the disputed strip of land through acquisitive prescription, having used it peacefully, continuously, and unequivocally for over 30 years.
• The right of way included vehicle access, as the deed establishing the servitude did not expressly restrict its use.
• The location of the servitude should be established based on historical possession of the land, not solely on recent location certificates.
• Bettencourt must cease storing snow and allowing parking within the servitude.
• The Court rejected both parties’ claims for punitive damages.

4. Appeal and Court of Appeal Decision

Gestion Architectonic inc. appealed the case, primarily challenging the trial judge’s conclusions regarding acquisitive prescription and the location of the right of way.

In its ruling dated October 19, 2021, the Québec Court of Appeal:

• Confirmed that Bettencourt had validly acquired the disputed parcel through acquisitive prescription
• Modified the location of the servitude’s easement by declaring that it should be fixed according to the 1985 plan by surveyor Claude Durocher.
• Recognized that Bettencourt’s property was landlocked under article 997 C.c.Q., which justified granting a right of way sufficient for vehicle access.
• Ordered Gestion Architectonic inc. to pay legal costs for both the trial and the appeal.

5. Victories and Impacts

Victories for Bettencourt

• Recognition of his property right over the disputed parcel by acquisitive prescription.
• Confirmation of the use of the right of way for vehicle passage.
• Establishment of the servitude based on the 1985 plan, facilitating access to his property.
• Condemnation of Gestion Architectonic inc. to pay legal costs.

Losses for Gestion Architectonic inc.

• Rejection of its request to limit the servitude to pedestrian passage only.
• Confirmation that its land is burdened by a servitude accessible to vehicles.
• Obligation to endure an expanded right of way.
• Condemnation to pay court costs on appeal.

6. The Role of Me Sophie-Anne Décarie

As Herminio Bettencourt’s lawyer, Ms Sophie-Anne Décarie played a key role in defending his rights by:

• Proving acquisitive prescription of the contested parcel through a rigorous demonstration of historical facts.
• Confirming the exercise of the right of way in accordance with the original intent of the parties.
• Obtaining judicial recognition of the economic enclave affecting Bettencourt’s property.
• Preventing Gestion Architectonic inc. from imposing unjustified restrictions on the servitude of passage.

7. Conclusion

The case Gestion Architectonic inc. c. Bettencourt highlights the complexities of servitude and acquisitive prescription disputes. Thanks to a well-structured legal strategy, Bettencourt obtained recognition of his rights and the consolidation of his access to his property, marking a significant judicial victory for his property rights.

References:

• Gestion Architectonic inc. c. Bettencourt, 2020 QCCS 898
• Gestion Architectonic inc. c. Ibrahim, 2021 QCCA 1538

The Lajeunesse v. Énergie de la Lièvre Saga: An Abusive Servitude Claim

The case of Lajeunesse v. Énergie de la Lièvre involved a claim for recognition of a right of way servitude on land owned by a company operating a dam. The plaintiff, Normand Lajeunesse, argued that certain portions of his land were landlocked and required access through the neighboring lot belonging to Énergie de la Lièvre S.E.C. The Court not only dismissed his claim but also declared it abusive, ordering the plaintiff to pay legal costs and damages to the defendant.

1. Initial Context of the Conflict

Normand Lajeunesse owns a lot bordered to the south by provincial route 309, which provides him with direct access to the public road. This land includes several residences built for his family and trails used for recreational purposes.

North of his lot is land belonging to Énergie de la Lièvre, which operates infrastructure related to a hydroelectric dam. For several years, Lajeunesse used trails on this land to access wooded areas located on higher ground on his own property, where he practiced deadwood gathering and leisure activities and which he used to access Crown lands for hunting.

In 2009, Énergie de la Lièvre signed a lease agreement for the land with his brother Claude for hunting and recreational purposes. This lease was subsequently transferred to another brother, Robert. Due to a family conflict, this situation limited the plaintiff’s access to the trails he previously used, which led to the conflict.

2. Claims at First Instance

Normand Lajeunesse initiated legal action before the Superior Court to obtain:

• Recognition of a landlocked situation for certain portions of his land situated on rocks.
• The imposition of a right of way servitude on Énergie de la Lièvre’s land.
• The development of a 20-foot-wide vehicular road allowing vehicle access.

For its part, Énergie de la Lièvre contested these claims by arguing that:

• Lajeunesse’s lot is not landlocked, since it has direct access to route 309.
• The requested access does not concern land exploitation, but rather convenient use.
• The legal action was abusive and aimed to force more practical access to Crown lands, located north of the land in question.

In response, Énergie de la Lièvre filed a cross-demand to obtain reimbursement of its legal costs as well as punitive damages due to the abusive nature of the claim.

3. Superior Court Judgment

In a judgment rendered on July 4, 2022, the Quebec Superior Court concluded that the plaintiff’s land was not landlocked and that his legal action was manifestly unfounded and abusive.

Decision:

• Complete dismissal of the introductory application due to the absence of landlocking.
• Recognition of the abusive nature of the procedure and condemnation of the plaintiff.
• Condemnation of the plaintiff to pay $50,000 in reimbursement of the defendant’s legal fees.
• Reimbursement of $12,000 in expert fees to the defendant.

The Court concluded that the plaintiff wished to impose a servitude for improper reasons and not out of legal necessity. It emphasized that the real objective was to obtain access to Crown lands located north of Énergie de la Lièvre’s land, and not to facilitate the exploitation of his own land.

4. Victories and Impacts

Victories for Énergie de la Lièvre:

• Total dismissal of the servitude claim.
• Recognition of abuse of process and condemnation of the plaintiff.
• Obtaining reimbursement of $50,000 in legal costs and $12,000 in expert fees.

Consequences for Normand Lajeunesse:

• Loss of the legal action and absence of right of way.
• Condemnation for abuse of process, which creates an unfavorable precedent for potential other unfounded legal attempts.
• Reimbursement of extrajudicial fees.

5. The Role of Ms Sophie-Anne Décarie

Ms Sophie-Anne Décarie, representing Énergie de la Lièvre, played a strategic role in the defense by:

• Demonstrating the absence of real landlocking on the plaintiff’s land.
• Proving that the servitude claim was abusive and intended for improper purposes rather than legal necessity.
• Obtaining judicial recognition of abuse of process, which led to the condemnation of the plaintiff to legal costs.
• Avoiding the imposition of an unjustified servitude that would have affected her client’s property.

6. Conclusion

The case of Lajeunesse v. Énergie de la Lièvre illustrates the importance of the concept of landlocking in real estate law and the rigor necessary to obtain a right of way servitude. The Court reminded that the law does not guarantee practical or optimal access, but only access necessary for the exploitation of land.

Thanks to a well-structured defense, Énergie de la Lièvre not only avoided an unjustified servitude but also obtained a condemnation for abuse of process, definitively ending the litigation

References:

• Lajeunesse c. Énergie de la Lièvre, 2022 QCCS 2460
  🔗 Full text of the decision

The Darkallah Saga: A Sale Resolution for Latent Defect

The case of Darkallah v. 3223701 Canada inc. illustrates a complex litigation involving latent defects affecting a residential building. This case highlights the obligations of a vendor-contractor and the scope of guarantees offered to buyers of new homes. After an initial Superior Court judgment confirming the resolution of the sale, the Court of Appeal upheld this decision, while making certain procedural corrections.

1. Initial Context of the Conflict

In 2010, Mr. Moussa Darkallah and Ms. Sadié Djimi (the Buyers) purchase a new house from 3223701 Canada inc. (Les constructions Brigil). One of the essential criteria for their choice is the possibility of finishing the basement to house their six children.

In 2011, an inspection reveals the presence of iron ochre in the French drain, a chemical and bacterial phenomenon that can cause clogging of the drainage system and lead to water infiltration.

The Buyers report the problem to Brigil, which refuses to intervene. They then file a complaint with the Administrator of the New Home Warranty of the APCHQ, who concludes that no problem related to iron ochre can be observed, but nevertheless orders corrections for a reverse slope of the French drain. Once this work is completed, the Administrator closes the file.

The Buyers, dissatisfied, withdraw from their arbitration recourse and initiate an action for resolution of the sale before the Superior Court, invoking the presence of a serious latent defect rendering the building unfit for its intended use.

2. The Superior Court Decision

In a judgment rendered in 2016, Justice Carole Therrien concludes that the Superior Court has jurisdiction to decide the litigation, despite the APCHQ guarantee, since the cancellation of the sale cannot be ordered by the Administrator.

Brigil contests the buyers’ claim by arguing:

• That the defect is not serious enough to justify cancellation of the sale.
• That a price reduction would have sufficed.
• That technical corrections can prevent total clogging.

The Court rejects these arguments and concludes that the risk of drain clogging is high and inevitable. This is not a simple hypothesis, but a real problem affecting the use of the basement.

Judgment provisions:

• Cancellation of the sale and restitution of the purchase price of $348,469 with interest and additional indemnity.
• Damages of $10,000 awarded to the buyers for stress and inconvenience related to the loss of use of the basement.
• No allocation for use, as the buyers were unable to finish the basement as planned.
• Cancellation of the mortgage at the contractor’s expense.
• Costs, including expert fees, awarded to the buyers.

Brigil appeals this decision.

3. The Court of Appeal Decision

In its 2018 ruling, the Court of Appeal confirms the first instance decision and makes certain procedural corrections.

Points confirmed by the Court of Appeal:

• The APCHQ guarantee does not deprive the Superior Court of its jurisdiction to resolve a latent defect dispute.
• Severity of the defect: The presence of iron ochre and the high risk of clogging render the building unfit for its intended use.
• Sale resolution: The defect being sufficiently serious, resolution is justified rather than a simple price reduction.
• Damages: The $10,000 awarded to the Buyers is maintained.

Corrections made by the Court of Appeal:

• Allocation of mortgage cancellation fees: Correction of the first instance judgment wording to specify that the fees are borne by the Contractor.
• Legal costs: Replacement of the term “dépens” with “frais de justice” to respect appropriate terminology.

Final provisions:

• Dismissal of the appeal on the merits: The sale resolution is confirmed.
• Correction of mortgage cancellation fees and legal costs.
• Legal costs awarded to the buyers.

4. Victories and Impacts

Overwhelming victories for the buyers:

• Confirmation of the sale resolution and reimbursement of the purchase price.
• Damages of $10,000 for troubles and inconvenience.
• Recognition of a serious latent defect affecting the use of the house.
• Legal costs and expert fees reimbursed by the contractor.
• No allocation for use of the house imposed on the buyers.

Losses for the Contractor:

• Confirmed sale cancellation, with obligation to reimburse the buyers.
• Refusal of a price reduction as an alternative.
• Condemnation to legal costs and expert fees.
• Failure to contest the Superior Court’s jurisdiction.

5. The Role of Ms Sophie-Anne Décarie

As the buyers’ lawyer, Ms Sophie-Anne Décarie played a central role in defending their rights on appeal:

• Demonstrating the severity of the latent defect and its concrete impacts on the building’s use.
• Dismissing Brigil’s technical arguments aimed at minimizing the scope of the problem.
• Confirming the complete resolution of the sale, a remedy rarely granted in latent defect matters.
• Securing financial compensation for the Buyers, in addition to the restitution of the purchase price.
• Ensuring that the contractor assumes all legal costs and expert fees, thus avoiding additional losses for the Buyers.

Thanks to a rigorous and well-documented legal strategy, we obtained victory for our clients, thus strengthening the protection of buyers against latent defects in the residential construction field.

6. References

• 3223701 Canada inc. c. Darkallah, 2018 QCCA 937 (CanLII)

This case constitutes an important reference in matters of guarantee against latent defects and sale resolution, illustrating the importance of solid legal expertise to obtain adequate protection of real estate buyers’ rights.

The Kandil v. Aljassar Saga: A Legal Conflict Over a Disputed Loan

The case of Kandil v. Aljassar is based on a financial dispute between Mohamed Kandil and Yousef Aljassar, involving a disputed loan, a seizure before judgment and allegations of abuse of process. This litigation evolved through several judicial instances, culminating with a judgment from the Supreme Court of Canada.

1. Initial Context of the Conflict

The litigation opposes Mohamed Kandil, a real estate investor, to Yousef Aljassar, an architect residing in Kuwait and brother of Kandil’s ex-wife. This conflict is part of a broader context of family tensions and serious accusations between the parties.

The subject of the litigation concerns a sum of $120,000 that Aljassar alleges to have lent to Kandil in 2015 to finance the purchase of a revenue property located in Gatineau. In exchange, Kandil was to make monthly payments of $900 until the resale of the real estate property five years later, where the capital was to be reimbursed.

Kandil denies the existence of the loan, claiming that the money came from his mother-in-law as a gift and that she had released him from any obligation in 2017.

2. Claims and Seizure Before Judgment

In March 2021, while the capital reimbursement has been due since October 2020, Aljassar presses Kandil to sell the property and reimburse him. Kandil stops paying the monthly installments in May 2021 and declares that he will no longer pay anything until a legal action is initiated against him.

Faced with threatening messages from Kandil, where he states he would prefer to burn the building rather than give it up, Aljassar files a request for seizure before judgment on the building. When the request is presented, the building has already been sold without Aljassar’s knowledge. Thus, the court authorizes the seizure of the sale proceeds ($334,209.54) held in a notary’s trust account.

3. Superior Court Judgment

On March 18, 2024, the Quebec Superior Court (Honorable Paul Mayer, J.C.S.) renders its judgment (2024 QCCS 871) and rules on several questions:

• The $120,000 loan is recognized as valid: the evidence demonstrates the existence of a deed made before a notary in Ontario and numerous monthly payments made by Kandil.
• Kandil is condemned to reimburse $120,000 to Aljassar with interest since October 2020.
• He must also pay $900 per month since May 2021 until execution of the judgment.
• The seizure before judgment of the funds is deemed valid and maintained.
• Kandil’s defense is declared abusive, and he is condemned to reimburse Aljassar’s extrajudicial fees.
• Kandil’s cross-demand (reimbursement of legal costs) is rejected.

4. Mohamed Kandil’s Appeal and Court of Appeal Decisions

Kandil attempts to obtain permission to appeal the dismissal of his cross-demand.

• Permission to appeal refused for the cross-demand, as Kandil identifies no manifest error in the first instance judgment.

Kandil files a main appeal on two points:

• Recognition of the $120,000 loan
• Validation of the seizure before judgment

The main appeal is dismissed.

• The Court considers that Kandil seeks to retry the case without providing solid evidence of manifest errors by the first instance judge.-
• The seizure before judgment is validated because the evidence indicated a real risk that Kandil would dissipate the funds.-
• Kandil loses his appeal and must additionally assume the legal costs of the appeal and the interest that continues to accumulate.

5. Victories and Impacts

Victories for Aljassar:

• Complete dismissal of Kandil’s arguments.
• Validation of the seizure before judgment.
• Recovery of amounts owed with interest and additional indemnity.
• Condemnation of Kandil for abuse of process.
• Reimbursement of his extrajudicial fees.

Consequences for Mohamed Kandil:

• Loss of seized funds.
• Dismissal of all his appeals and sanctions for abusive procedure.
• Significant accumulation of interest and additional indemnity during judicial proceedings.

6. Conclusion

The case of Kandil v. Aljassar highlights the importance of contractual commitments and the consequences of a judicial obstruction strategy and that abusive behaviors in justice will not be tolerated.

Thanks to a solid legal action, Ms Sophie-Anne Décarie ensured a complete victory for her client Aljassar, despite the dilatory and abusive attempts by Mohamed Kandil.

References:

• Aljassar c. Kandil, 2024 QCCS 871
• Kandil c. Aljassar, 2024 QCCA 665
• Kandil c. Aljassar, 2024 QCCA 1456