Right of Withdrawal
Another victory for Me Karine Cherbaka and Me Rachel Muzaic! Before the Honorable Louis J. Gouin, Me Cherbaka and Me Muzaic successfully defended the plaintiff’s right of withdrawal.
In this case, the plaintiff held a 25% share in the property in question, while a second company held 75%. The latter put up his share in the property, which was acquired by the defendant. The parties to the suit had, therefore, become undivided co-owners.
That being said, section 1022 of the Québec Civil Code provides for a right of withdrawal. Indeed, an undivided co-owner can, within 60 days of learning that a third-party to the undivided co-ownership has obtained a share in the property, exclude him from the indivision by reimbursing him for the transfer price and the expenses he has paid.
The defendant in this case claimed that the plaintiff had waived this right of withdrawal by implying such through certain actions that led the defendant to believe that no opposition would eventually be made in regards to the transfer.
Me Cherbaka and Me Rachel argued that no action on the part of the plaintiff constituted a true waiver of his right of withdrawal. As Judge Gouin confirmed in his motives for judgement, the plaintiff never unequivocally waived his right to withdrawal, and the defendant’s insistence on such was based only off the latter’s interpretation of select actions.
