2015 QCCA 280, 2015 QCCA 280

A.S. c. K.S. 2015 QCCA 280 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024998-155 (500-17-051591-090) MINUTES OF THE HEARING DATE : February 10, 2015 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER COUNSEL A. S., en sa qualité de tuteur à M. S. Mtre JÉRÔME DUPONT-RACHIELE ( Ferland Marois Lanctôt sn ) RESPONDENTS COUNSEL K. S. Mtre ALEXANDRE BRAULT (Brault Primeau, avocats, s.e.n.c.) BANQUE ROYALE DU CANADA Mtre STÉPHANE DAVIGNON (Clément Davignon) FRANCIS-PIERRE RÉMILLARD RÉGIS RÉMILLARD Mtre GABRIEL ARCHAMBAULT (Robinson Sheppard Shapiro IMPLEADED PARTIES COUNSEL

CURATEUR PUBLIC DU QUÉBEC BRUNO GRENIER Mtre PETER SHAMS DESCRIPTION : Requête pour permission d’appeler d’un jugement interlocutoire rendu le 23 décembre 2014 par l’honorable Marie-Claude Lalande de la Cour supérieure, district de Montréal Clerk : Asma Berrak Courtroom : RC.18 HEARING 9:44 Commencement of the hearing. Identification of counsel. Submission by Mtre Dupont-Rachiele. 10:03 Submissiom by Mtre Shams. 10:14 Reply by Mtre Dupont-Rachiele. 10:18 Suspension. 10:21 Resumption. Judgment-see page 3. 10:25 Conclusion of the hearing.

Clerk BY THE JUDGE JUDGMENT [ 1 ] Applicant seeks leave to appeal the judgment of the Superior Court, District of Montreal (the Honourable Marie-Claude Lalande) rendered orally on December 23, 2014. This judgment dismissed the Applicant’s motion to disavow the actions of his former attorney, Mtre Bruno Grenier. Applicant, then represented by another attorney sued the Respondents in 2009 for damages and to set aside a hypothec. His attorney ceased representing him and following his failure to appear personally or through new attorneys his lawsuit was dismissed.

Mtre Grenier was mandated and prepared proceedings in revocation of the judgment dismissing Applicant’s lawsuit. Applicant stated that he was pressured and did not read the affidavit prepared by Mtre Grenier in support of the revocation proceedings which affidavit, Applicant alleges, contained inaccurate statements. Applicant adds that the affidavit was drafted in French,

although Applicant’s first language is English. Applicant then sought the disavowal of Mtre Grenier. The motion of revocation is still pending. [ 2 ] The judgment of Justice Lalande is interlocutory and thus, Applicant, in order to be granted leave to appeal must satisfy the criteria of Articles 29 and 511 C.C.P. [ 3 ] The judgment of Justice Lalande dismissed the motion in disavowal essentially because the proof did not disclose that Applicant’s consent to sign the affidavit was vitiated. His knowledge of French appeared adequate judging by all of the other proceedings in the record.

Secondly, Justice Lalande concluded (paragraph 55) based on the evidence that Applicant’s consent to the contents of the affidavit had not been vitiated by an error, but if there was an error, this error was inexcusable, given that it was of Applicant’s own making by not reading the affidavit. Accordingly, in law, he is not able to invoke such error. Justice Lalande further found that Applicant was not credible (paragraph 60). [ 4 ] Given the judgment, it is not surprising that the grounds of appeal invoked by Applicant are all questions of fact or mixed fact and law including questions of credibility.

This includes the alleged errors which Applicant characterizes as errors of law in the motion (i.e. − that the judge drew an inference from Applicant’s absence at the hearing, the existence of a relationship between two of the law firms and authorizing the reopening of the hearing to allow the filing of additional evidence by Mtre Grenier). [ 5 ] In my opinion, there appears no issue which might induce this Court to intervene in the final result. Findings of judges on question of fact and mixed questions of fact and law and particularly credibility, are to be afforded deference by the Court of Appeal.

As such, I find that the criterion of

Article 511 C.C.P. has not been satisfied, that is that the pursuit of justice does not require that leave to appeal be granted in this case. FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 6 ] DISMISSES the Applicant’s motion for leave to appeal, with costs. MARK SCHRAGER , J. A.