Executive Summary: Key Legal and Evidentiary Issues

• Validity and sufficiency of service of the originating application where the bailiff left the documents under sealed cover affixed to the condo door, and whether the defendants actually became aware of the proceedings.
• Compliance with strict time limits for a motion to retract a default judgment under articles 346 and 347 C.C.P., including when the 30-day and six-month delays began to run.
• Existence of a “cause suffisante” under article 346 C.C.P., based on the defendants’ credible claim that they were unaware of the proceedings due to their separation and living situation.
• Effect of the defendants’ tender of a cheque for the amount claimed in the hypothecary pre-notice, and the syndicate’s refusal to cash it, on the legitimacy of pursuing a judicial sale and on potential abuse of procedure.
• Adequacy of the defendants’ stated defences, particularly their failure to articulate any defence to the separate monetary claim of 16 573,76 $ in fees from a prior injunction matter.
• Proportionality concerns arising from maintaining a default judgment ordering judicial sale of a condo valued at 359 500 $ in the face of potentially contestable claims and incomplete defences.

Factual background

The dispute arises within a divided co-ownership (condominium) located on Jean-Talon East in Montréal. The defendants, Marwan Assi and Shukria Lodin, are co-owners of a condo unit (a “fraction de copropriété”) managed by the plaintiff, the Syndicat de la copropriété Le Novello Phase 2, Tour Ouest. The syndicate claimed that the defendants had failed to pay their common expenses (charges communes) and, relying on its hypothecary rights, sought enforcement remedies against the unit. According to the pre-notice of hypothecary exercise, the alleged arrears in common expenses totalled 5 057,28 $, while the originating application later referred to 7 352,22 $ said to be owed in common expenses. In addition, the syndicate sought a separate monetary condemnation of 16 573,76 $, corresponding to fees and expenses it said it incurred in connection with a prior provisional interlocutory injunction obtained in the Superior Court in another file.

Procedural history and default judgment

On 2 April 2025, the syndicate filed an originating application in the Court of Québec to obtain the forced surrender (délaissement forcé) and sale under judicial control (vente sous contrôle de justice) of the defendants’ condo unit, as well as payment of the 16 573,76 $ said to be related to the earlier injunction proceedings. The application was served on 7 April 2025. The bailiff attempted service on 4 April, leaving a notice of attempt, then returned and, when nobody answered at the unit, affixed copies of the application under sealed cover to the defendants’ door. The defendants did not respond within the 15-day period prescribed by article 145 C.C.P., nor at any later time before default was sought. On 29 May 2025, the syndicate filed a request for default judgment, supported by a sworn declaration of an administrator confirming the truth of the allegations. On 17 October 2025, the special clerk granted the application by default, ordering the forced surrender and sale under judicial control of the unit and condemning the defendants to pay 16 573,76 $, with interest at the Bank of Canada rate plus 5%, the additional indemnity from 7 April 2025, and costs. The condo itself had a municipal assessment of 359 500 $, underscoring the significance of the remedy for the defendants compared with the amounts in dispute.

Discovery of the judgment and move to retract

The defendants both testified that they were unaware of the originating application at the time it was served. Mr. Assi explained that the couple separated in September 2024 and that, due to his work in international freight transport between Canada, the United States, and other countries, he is frequently away and did not reside at the unit when service was attempted. He stated that he only learned of the proceedings when Ms. Lodin forwarded him a copy of the notice of judgment she received on 11 November 2025. For her part, Ms. Lodin said she did not recall ever receiving or seeing the originating application or meeting a bailiff, and similarly only became aware of the case upon receiving the notice of judgment in November 2025. On 4 December 2025, Mr. Assi filed a motion to retract the default judgment. An initial scheduling irregularity led to the motion being returned sine die when neither party appeared on a mistakenly recorded date. A new notice of presentation set the matter for 23 January 2026, at which time the court fixed an initial hearing date of 10 February 2026. At that hearing, the judge identified procedural issues, notably that Ms. Lodin was not formally a moving party, and ordered the filing of a corrected motion. The defendants then filed an amended motion to retract on 3 March 2026, now including both as applicants, and the hearing was ultimately held on 30 March 2026.

Issues on retraction of judgment

The court’s analysis turned on the application of articles 346 and 347 of the Code of Civil Procedure. Article 346 allows a party condemned by default to seek retraction of the judgment if it was prevented from defending itself by fraud, surprise, or any other cause considered sufficient, and requires that the motion set out both the grounds for retraction and the proposed defences to the original claim. Article 347 imposes strict, non-extendable time limits: the motion must be served within 30 days of the party learning of the judgment (or the disappearance of the impediment) and presented within 30 days of service, and in all cases no more than six months may elapse from the judgment. The judge first had to determine whether the defendants had filed and presented their motion within the mandatory delays, and whether they had shown a sufficient cause (cause suffisante) for not having responded to the original proceedings. The court also examined whether the defendants had adequately pleaded their substantive defences, especially given that their motion focused on challenging the judicial sale of the condo and the handling of the common-expense arrears, while saying virtually nothing about the separate 16 573,76 $ claim related to the previous injunction.

Service, knowledge of proceedings, and sufficient cause

The judgment acknowledges that the mode of service used by the bailiff—leaving the documents in a sealed envelope affixed to the door of the unit—conformed to article 116 C.C.P., which permits leaving documents in an “appropriate place” under seal where personal service or service on a seemingly capable person cannot be achieved. At the same time, the judge stressed the inherent risk of this method: the documents can be removed or lost before reaching the intended recipient, undermining the fundamental purpose of notification under article 109 C.C.P., which is to bring the document to the attention of the interested party. In this context, the court found the defendants’ testimony—that they had not become aware of the originating application until the notice of judgment was received in November 2025—to be plausible and uncontradicted. Given their separation, Mr. Assi’s constant travel, and the lack of any evidence to undermine their account, the court accepted that they genuinely did not know about the proceedings when default was taken. This ignorance of the proceedings, linked to the mode of service and their particular circumstances, was held to constitute a “cause suffisante” within the meaning of article 346 C.C.P. The judge also observed that, had they actually known their condo was at risk of forced judicial sale, it was reasonable to assume they would have taken steps to respond, reinforcing the credibility of their account.

Timeliness and content of the retraction motion

On timeliness, the court noted that the defendants alleged they first became aware of the judgment when Ms. Lodin received the notice of judgment dated 4 November 2025, which reached her on 11 November 2025. Mr. Assi’s initial motion, filed on 4 December 2025, fell within the first 30-day period under article 347 C.C.P. Although the record lacked proof of service on the syndicate and its counsel, the plaintiff did not raise any objection based on non-compliance with the article 347 delays. Similarly, while the motion was first presented to the court in January 2026, more than 30 days after filing, the absence of specific evidence on the date of service—and the fact no timeliness objection was argued—led the court to proceed on the basis that the deadlines had been respected. As for Ms. Lodin, the amended motion including her as a moving party was filed outside the initial 30-day window; however, it complied with the timeline set by the court on 10 February 2026 and was presented within the absolute six-month limit from the judgment, and here again the syndicate did not challenge timeliness. Overall, the court concluded that the defendants had, in the circumstances, complied with the strict delays of article 347 C.C.P. Turning to the content of the motion, the court acknowledged a deficiency: the defendants had not set out any defence at all to the separate monetary condemnation of 16 573,76 $ for the injunction-related costs. Their allegations and proposed defences concerned only the aspects tied to the judicial sale and common-expense arrears. Strictly applied, article 346 C.C.P. requires that the motion also disclose defences to that monetary component of the claim.

Tendered payment, imputation of payments, and alleged abuse

A key factual and legal issue concerned the cheque for 5 057,28 $ drawn by the defendants on 4 April 2025, representing the amount stated in the pre-notice of hypothecary exercise for unpaid common charges. The cheque was issued after the originating application was filed but before its formal service. The defendants alleged that the syndicate refused to accept and cash this cheque and never returned it, choosing instead to press forward with the judicial sale process. At the hearing of the retraction motion, it emerged that the syndicate did receive the cheque, but the parties disagreed on how the amount should be applied. Notably, the cheque bore the notation “créance – préavis d’exercice de recours hypothécaire,” suggesting that the defendants intended it to extinguish the particular debt stated in the pre-notice. The syndicate, however, apparently declined to cash the cheque, contending that the application of the payment was in dispute. This disagreement raised a legitimate and serious question as to how the payment should be imputed under the Civil Code of Québec’s rules on imputation of payments (articles 1569 and following C.c.Q.). The court emphasized that this issue—and any consequences of the syndicate’s refusal to cash the cheque while continuing to seek judicial sale—belonged to the merits of the case and could not be resolved at the retraction stage. The defendants also framed the syndicate’s stance as an abuse of procedure, asserting that pursuing the drastic remedy of judicial sale despite a tender of the full amount in the pre-notice was disproportionate and unfair. While the court did not decide the abuse question at this stage, it recognized that the defendants had raised a non-frivolous defence that warranted a full hearing.

Proportionality and risk of injustice

The judge placed considerable weight on the proportionality of the proceedings and the potential for serious injustice if the default judgment were left in place. On one side, the judgment ordered the judicial sale of a condo assessed at 359 500 $, and maintained a condemnation for 16 573,76 $ in favour of the syndicate arising from another litigation. On the other, the defendants’ arguments—though incomplete as to the injunction-related amount—nonetheless established credible grounds to contest at least some elements of the claim, particularly regarding the common charges and the handling of their payment. Drawing on the Court of Appeal’s guidance in Groupe JSV inc. v. Goal Capital inc., the court warned against “rigorisme indu” that would make procedure “the mistress of the law rather than its servant.” Denying retraction in the face of a potentially contestable claim, with such high stakes for the defendants, risked imposing a disproportionate and unjust sanction, especially where the defendants’ failure to respond initially stemmed from a plausible lack of knowledge of the proceedings. The judge noted that any delay caused by reopening the case could be compensated by interest if the syndicate ultimately prevailed on the merits.

Outcome and implications

The Court of Québec ultimately granted the motion for retraction. It ordered that the 17 October 2025 default judgment be retracted and that the parties be restored to the position they occupied before that judgment was rendered. All enforcement measures flowing from the default judgment, including steps toward judicial sale of the unit, were suspended. The court directed the clerk to convene the parties to a case management conference to set the next procedural steps. At that conference, the court would also consider whether any consequences should attach to the defendants’ failure to articulate a defence to the separate claim of 16 573,76 $. In this retraction decision, the successful parties are the defendants, Mr. Assi and Ms. Lodin, because they obtained the annulment of the default judgment and a reopening of the case. No monetary amount is awarded in their favour; the earlier condemnation of 16 573,76 $ and the judicial sale order are set aside, and all financial issues are left to be determined at a later hearing on the merits, meaning that no determinable total sum is, at this stage, ordered or granted to the successful parties.