2023 QCCS 286, 2023 QCCS 286

Succession de S.R. 2023 QCCS 286 SUPERIOR COURT CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL No.: 500-17-096359-164 DATE: 31 January 2023 _____________________________________________________________________ BY THE HONOURABLE AZIMUDDIN HUSSAIN, J.S.C. _____________________________________________________________________ IN THE MATTER OF THE ESTATE OF THE LATE S. R.: R. RA. , es qualité liquidator of the estate of the late S. R. Plaintiff v. M. R. Defendant and H. F. (born F.) , es qualité co-liquidator of the estate of the late Ro. Fr. and L. F. , es qualité co-liquidator of the estate of the late Ro. Fr.

Defendants ___________________________________________________________________ JUDGMENT (A buse of procedure, vexatious and quarrelsome conduct ) _____________________________________________________________________ Table of contents I. .... OVERVIEW ............................................................................................................................ 2 II.

CONTEXT ............................................................................................................................... 3 A. prior cases involving Defendant .......................................................................................... 3 B. defendant’s revocation applications ................................................................................... 9 1. The first application to revoke the Rogers Judgment ...................................................... 9 2. The second application to revoke the Rogers Judgment ............................................. 10 3.

The application to revoke the Lacoste Judgment .......................................................... 12 C. Defendant’s action against Mtre. Merling ........................................................................ 12 III. .. ANALYSIS ........................................................................................................................... 13 A. ADMISSIBILITY OF AFFIDAVIT ...................................................................................... 13 B.

Abuse of procedure ............................................................................................................ 14 1. Applicable principles ........................................................................................................... 14 2. Application of the principles to the present case ........................................................... 16

C. Vexatious and quarrelsome litigant .................................................................................. 18 1. Applicable principles ........................................................................................................... 18 2. Application of the principles to the present case ........................................................... 19 I. OVERVIEW [ 1 ] Plaintiff is the liquidator of the estate of the late S. R. ( Estate ) and applies to have Defendant M.

R.’s revocation application declared an abuse of procedure and accordingly dismissed, and more significantly, have her declared a vexatious and quarrelsome litigant in respect of any proceedings involving the immovable at [...] in Town A ( Property ), which is at the origin of the present court file. [ 2 ] The Court of Appeal has usefully described the present case as an “inheritance saga over a 25% interest in a commercial building”. [1] [ 3 ] Defendant’s revocation application, which Plaintiff seeks to have dismissed as an abuse of procedure, relates to the judgment of the Honourable Stéphane Lacoste dated 29 April 2022 ( Lacoste Judgment ). [2] [ 4 ] In that judgment, he dismissed Defendant’s previous revocation application related to the judgment of the Honourable Karen M.

Rogers dated 1 May 2018, which dealt with the merits of the dispute between the parties ( Rogers Judgment ). [3] [ 5 ] The underlying dispute between the parties was whether Defendant is the actual owner of the Property’s 25% share registered in the name of the late S. R., father of Defendant and Mi. R., Sh. R., and D. R.. The other three 25% shares in the Property are owned by Defendant and the two other defendants, respectively. The latter two have not filed an answer to the proceedings. [ 6 ] The Rogers Judgment declared that the Estate of Mr.

R. is the owner of the 25% share and thereby dismissed Defendant’s claim. [ 7 ] Subsequently, Defendant found a document entitled “Declaration of Trust”, dated 2 July 1975, which she invoked as the basis for her application to revoke the Rogers Judgment under articles 345 and 347 of the Code of Civil Procedure ( CCP ). [ 8 ] More specifically, she relied on

article 345 paragraph 2 ( 4) CCP : “evidence was subsequently discovered that would probably have led to a different judgment if the party concerned or its lawyer had become aware of that evidence in sufficient time, although they acted with due diligence”. [ 9 ] The Lacoste Judgment dismissed Defendant’s revocation application, declared it an abuse of procedure, and ordered Defendant to pay compensatory and punitive damages to Plaintiff.

Justice Lacoste subsequently issued a judgment on the quantum of damages. [4] [ 10 ] Defendant seeks the revocation of the Lacoste Judgment on the grounds that she now has documentary evidence of having made calls to the office of the notary Sheldon Merling prior to the trial before Justice Rogers, that this evidence would contradict the testimony of Mtre.

Merling before Justice Lacoste about never having received such calls from Defendant, and that therefore the Lacoste Judgment would be different if this evidence of telephone calls had been made. [ 11 ] For the reasons below, the Court grants the application for abuse of procedure and grants in part the application to have Ms. R. declared a vexatious and quarrelsome litigant. The damages in connection with the abuse of procedure will be determined in a subsequent phase of the proceedings. II.

CONTEXT A. prior cases involving Defendant [ 12 ] The Lacoste Judgment provides a useful review [5] of the voluminous proceedings in the dispute between the parties, and the Court therefore takes the liberty of reproducing from the Lacoste Judgment extensive passages from its

section on the background to the proceedings. [ 13 ] Mr. R. died in 2003, but in his lifetime had long been involved in business and owned many buildings at the time of his death. [ 14 ] He left as his legal heirs his widow, Mrs. K. R., and their four children, namely Defendant, Mi. R., Sh. R., and D. R.. [ 15 ] Disputes arose between the heirs about his Estate. More disputes arose after his widow passed away some years after him.

Those disputes led to many judgments of the Superior Court and the Court of Appeal. [ 16 ] Four of those judgments are especially helpful in establishing the background to the courts’ previous assessments of Defendant’s credibility. 1. SR (Succession de) , 2008 QCCS 4015 (Corriveau Judgment) [ 17 ] This case concerned an application to declare Defendant unworthy to inherit from the Estate and related issues including the ownership of a building.

The relevant passages of the reasons of the Honourable Chantal Corriveau read as follows: [19] In 1995, S.R. instructed notary Sheldon Merling to prepare a will. [20] Notary Merling drafted a will and sent it to S.R. for his review. Under the will S.R. left everything to his wife K., and if she was

to predecease him, all his assets were left to the four children. [21] A copy of the draft will remain in notary Merling's file. [24] In 2000, S.R. was diagnosed and treated for cancer in Town A and Town B, although he remained active in business until his death in 2003. […] [26] Beginning in 2002, [Defendant] had discussions with her father who assured her that she would be given one of his commercial buildings. S.R. told [Defendant] that once he acquired a greater interest in a building located at 9475 [street A] from his partner, Mr.

L., he would transfer his resulting interest in the building to her . [Defendant] told her father that she wanted another building, which she could own outright. […] [27] [Defendant] believed that it was her father's intention to transfer two buildings at the same time, 9150 [street A] to Sh. and his interest in 9475 [street A] to her. [28] Mr. L. testified in court.

He stated that his discussions with S.R. regarding the purchase of his share in the 9475 [street A] building were not conclusive because S.R. did not know who to transfer the building to once he acquired L.'s interest. [29] Following the last day of the April 2003 Passover celebrations, a discussion arose between Sh., her husband J., and [Defendant], concerning the ownership of the 9475 [street A] building. [30] During that discussion, Sh. told [Defendant] to go to a notary and have a contract prepared by which her father would transfer ownership of the 9475 [street A] building to [Defendant]. [Defendant] claims that she immediately went to her parents’ house and found a blank cheque (“ the D-2 cheque” ) on which she crossed out the printed name of [Company E] and wrote: Apr. 27, 2003 I owe [Defendant] 45% share of 9475 [street A] what I already own and what will be purchased or other equivalent property or each equal value, I also owe [Defendant] $500,000 US for my unpaid balance to her for purchasing her home and for renovating and furnishing the house at 2315 [street B]. (signed) S.R. [31] [Defendant] testified that she had her father write in "Apr. 03" and sign the document. [Defendant] wrote the number 27 in the date. [Defendant] said that she felt she needed something in writing from her father to confirm his intention to transfer the building to her. [32] [Defendant] returned to her home in Town A without going to a notary to transfer the property. [33] Neither [Defendant] nor her lawyers showed the D-2 cheque to her siblings or to their lawyers until the winter or spring of 2005. [34] S.

R. died on […], 2003. [35] Following his death [Defendant and her siblings] looked for a will in their parents' house and at their father's office. M. contacted everyone who might know if his father had made a will. Notary Merling told M. about the draft will proposed in 1995. No one else knew about a will. [36] During the summer of 2003, the children discussed how to settle the estate.

During these discussions, [Defendant] made no mention of the D-2 cheque or a will signed by the father. […] [43] The next day, [Defendant] contacted notary Merling and informed him that she had just found a will, which she showed him that same afternoon […] [45] [Defendant] testified that on the day following the November 13, 2003, meeting, she had found the P-4 will in an old briefcase belonging to her father.

According to [Defendant] the briefcase was located in a bedroom closet in her parents’ home, where she stayed when she was in Town B. [46] M. and Sh. testified that when they had searched for a will, they had looked in every closet in the house.

They had also looked in their father's briefcase, which was not in the bedroom closet, and they had not found any document like the one produced by [Defendant]. [47] The P-4 will contained the same clauses as the 1995 draft will prepared by notary Merling, except for the following additions: 1) The names of a liquidator and a trustee had been inserted by hand; 2) A paragraph 19 was added: NINETEENTH: To be inserted after heading THIRD: I hereby will and bequeath as particular bequests hereunder unto my daughter [MR] (1) my 20% interest in building 9475 [ street A], Town B and an assignment of my right to purchase an additional 25% interest from partners, (2) the sum of $600,000.00 to purchase other partners' interest in 9475 [street A], (3) the sum of $400,000.00 U.S. for money owned to her RE: 2315 [street B] Town A, (4) my

Toyota vehicle, and (5) the property 411-415 [street C], Town B, and its content, reserving to my wife, K. M., the occupancy of the lower floor during her lifetime. […] [51] A motion to probate the will was presented by [Defendant]. By judgment dated December 22, 2004, the Honourable Mr. Justice Pierre-C. Gagnon refused to probate the will.

He did not believe that the two persons who had purportedly acted as witnesses had in fact travelled to Town B and witnessed S.R.'s signature on April 1, 2003. [52] The Court of Appeal granted a motion to dismiss [Defendant] 's appeal. [53] Subsequently, a meeting was held […] to agree to the distribution of the assets. At the meeting, [Defendant] showed her siblings and their lawyers the D-2 cheque for the first time. [54] The evidence is not clear as to the date of the meeting.

However [three witnesses] testified that [Defendant] showed them the D- 2 cheque after her appeal had been dismissed, therefore after January 2005. [55] [Defendant]’s siblings disputed the authenticity of the document, claiming that [MR] had fabricated it after failing to probate the P-4 will. [56] It is as a result of these events that the action to have [Defendant] declared unworthy of inheriting from her father has been instituted. [ 18 ] Justice Corriveau concluded that Defendant was not credible and was unworthy to inherit: [133] On the basis of facts which are serious, precise and concordant, the Court concludes that [Defendant] found the draft will prepared by notary Merling, which had been signed by S.

R. without modification except for the addition of the names of the liquidator and the trustee. This will was then altered by [Defendant] or somebody acting with her knowledge, in order to add new clauses. This was done after S.

R.'s death. […] [135] In this instance, the Court concludes that [Defendant] is unworthy to inherit because she altered her father's will in her favour . [ 19 ] The Court of Appeal [6] dismissed Defendant’s appeal. [ 20 ] Justice Lacoste quoted the above extract of Justice Corriveau’s reasons to show that they present a version of facts given by Defendant that he found incompatible with her testimony before him. [7] 2.

Rogers Judgment [ 21 ] Plaintiff sued Defendant in 2016 seeking a declaration that the Estate is the owner of the Property and an order to render an accounting for Defendant’s administration of that building since the death of Mr. R.. [ 22 ] In defence to the action, Defendant claimed that her father had sold her his interest.

She also argued subsidiarily that she had acquired the Property by prescription. [ 23 ] As to Defendant’s credibility, Justice Rogers wrote: [106] Furthermore, it is obvious to the Court that [Defendant] will testify in a manner that will support her position at any given time, with little or no consideration being given to the truth. [107] On many issues, her testimony was questionable.

As a matter of example […] [109] The Court finds [Defendant] ’s testimony not credible. [ 24 ] Justice Rogers dismissed Defendant’s claims and declared that the Estate owned the 25% interest in the Property, ordered Defendant to render an accounting and to pay costs. [ 25 ] The Court of Appeal dismissed Defendant’s appeal on an application to dismiss, finding that there was no reasonable chance of success. [8] 3.

MR c MaR , 2019 QCCS 2740 (Capriolo Judgment) [ 26 ] This judgment dealt with an application brought by siblings of Defendant to annul their mother’s will and to annul the transfer of their mother’s house to Defendant’s children. The case revolved around Defendant’s influence on their mother. [ 27 ] The Honourable Pepita G. Capriolo reviewed the many disputes involving Defendant and the many court decisions rendered up to that point.

She analyzed the credibility of Defendant’s testimony and concluded as follows: [39] [Defendant] has absolutely no credibility. [40] She repeatedly lied, contradicted herself not only in regard to previous examinations out of Court but also in regard to testimony made an hour previously.

[41] Her attitude towards the system of justice, her disregard for Court orders are astonishing. The examples are too many. Her unfamiliarity with the concept of truth was remarked upon by every judge who has dealt with this family saga. [42] She has also attempted to derail the preparation of the trial by the opposing party.

She has repeatedly refused to accept service of procedures […] [43] Her behaviour in the courtroom corroborated her siblings’ descriptions of her actions out of Court: she raised her voice, threatened to walk out when displeased, even physically attempted to grab an item from the hands of the lawyer representing the opposing party. [44] When confronted with statements regarding her actions in previous judgments, her only response was that all the judges were wrong and had made mistakes. [45] [Defendant] considered it reasonable to lie under oath about her place of residence: she claimed that she lived at [...] while she had later to admit that she in fact resides with her husband and works in [State A].

She thinks nothing of using her Quebec medicare card, despite her not being a resident of Québec. […] [50] Before this Court, [Defendant]’s lies were too numerous to be listed. Let us just mention her initial affirmation “that she knew nothing about her mother’s intentions regarding the content of her will” or “that she thinks her mother found the notary herself”.

It transpired from Me Bolduc’s testimony that [Defendant] had herself not only arranged for the signing of the will before a notary referred by her own lawyer, but that she had discussed the content of the will with her husband, her lawyer and the notary prior to its drafting. [ 28 ] Justice Capriolo found that Defendant had exercised undue influence on her mother. As a result, she annulled her will and a deed of transfer to Defendant’s daughters of her mother’s house. 4.

MaR c MR , 2020 QCCA 1151 [ 29 ] On 7 July 2020, the Court of Appeal dismissed the appeal of the Capriolo Judgment and commented as follows on the issue of the credibility of Defendant: [19] [Defendant] is of the view that her testimony was not given due consideration. She submits that the trial judge established her lack of credibility on the basis of past judgments, which deprived her of her fundamental right to have a fair and impartial hearing. […] [20] These arguments are unfounded.

First, it is not accurate to say that the trial judge established [Defendant]’s lack of credibility solely on the basis of past judgments. She made clear and devastating findings as to [Defendant]’s credibility based on her testimony during the trial […] [21] Further, to the extent that the trial judge relied on findings as to [Defendant]’s credibility, she was entitled to do so. Judgments are juridical facts admissible in evidence that have probative value, even if the authority of res judicata cannot be applied pursuant to

Article 2848 C.C.Q. Findings as to credibility made in previous judgments involving the parties and the rest of the family are clearly relevant, and the trial judge has discretion to give them evidentiary weight. There is no reason for the Court to intervene. B. defendant’s revocation applications [ 30 ] Defendant filed two revocation applications in relation to the Rogers Judgment, the second one essentially being a copy of the first and filed because the first one was dismissed for lack of compliance with an order against Defendant to pay security for costs. 1.

The first application to revoke the Rogers Judgment [ 31 ] On 7 August 2020, Defendant filed an application for revocation of the Rogers Judgment ( First Revocation Application ) in which she alleged that she had come upon the Declaration of Trust and that this proved that she was the true owner of the Property.

She alleged she had done everything to find that document since 2006. [ 32 ] On 2 March 2021, the Honourable Serge Gaudet [9] dismissed Defendant’s application to have the law firm representing Plaintiff disqualified and ordered her to pay security for costs of $5,000 within ten days ( Gaudet Order ). [ 33 ] On 19 March 2021, the Honourable Lukasz Granosik, seeing that the security for costs had not been paid, granted Plaintiff’s application to dismiss Defendant’s First Application ( Granosik Order ).

Defendant chose neither to appeal nor to apply for revocation of the Granosik Order. [ 34 ] Before Justice Lacoste, Defendant presented evidence to explain why she had not paid the security for costs in due time, blaming her lawyer at the time and an ostensible lack of cooperation from Plaintiff and his lawyer. Justice Lacoste concluded that the Granosik Order was final and that he had no jurisdiction over that issue. [10] 2.

The second application to revoke the Rogers Judgment [ 35 ] On 3 June 2021, Defendant filed an application for revocation ( Second Revocation Application ) that was essentially a copy of the First Revocation Application. [ 36 ] On 4 June 2021, Plaintiff filed an application to dismiss it and to declare it an abuse of procedure.

[ 37 ] Defendant testified at the hearing before Justice Lacoste and also presented two witnesses, including Plaintiff.

Plaintiff presented notary Merling as a witness. [ 38 ] The salient points noted by Justice Lacoste in relation to Defendant’s testimony were as follows: • In early July 2020, [11] she found a copy of the Declaration of Trust in a cabinet in her family residence in Town B; • She had not found that document earlier even though she had looked everywhere and asked everyone since 2006; • She had asked notary Merling to look for a document like that many times in 2006 and 2016; • The first time she asked him for a 1975 document, he responded that it was too long ago and he could not find it.

After that first conversation, he always answered that he could not find anything; • She never sent him emails at the time because she did not have an email address; • On 8 July 2020, she sent an email to notary Merling that reads as follows: Please be so kind as to prepare for me 2 copies of Declaration of trust from S. R. to M. R. dated July 2 1975 your minute number 13,4436 I can pay you by credit card, pay pal or etransfer or whatever you prefer.

As soon as it’s ready I will send a courier to pick it up. • The following day, she called notary Merling’s office to confirm that they had received her email and would send the certified copies of the Declaration of Trust; • On 28 July 2020, she sent an email to notary Merling that reads as follows: In continuation of our conversation this morning again I thank you again for finding the document. As you are aware I had called you several times over the years and I had asked you to search the Ray Lawson file [ the Property ] but you were unable to find this document, you said you can’t find anything.

Since I was unable to show that I had ownership [ Plaintiff ] filed an action and the court adjudicated in favor of the estate […] . I lost the property and he is also claiming income since my father passed away in 2003. Can you please help me get my property back.

Thanking you • In late July, she mandated her then lawyer to file the First Application for revocation of the Rogers Judgment. [ 39 ] Notary Merling’s testimony contradicted Defendant on many issues, according to Justice Lacoste: • He does not recall having ever had a phone call from her after a discussion in or around 2006 about the appointment of [Plaintiff] as liquidator for the Estate; • He does not recall having ever been asked by her to look for a document before the July 2020 email; • He keeps, as is his professional duty, all deeds and documents in minutes in a fireproof cabinet or safe in his office and finding any such document is easily done, hence he could never have told Defendant that it was not possible to look for a 1975 document; • He was shocked when he read Defendant’s email of 28 July 2020, because it contained falsities and he discussed it with one of her lawyers over the phone that very same day. [ 40 ] Justice Lacoste finished his review of the proceedings by noting that Defendant “still claims that the decisions rendered in the past that found against her were wrongly decided”. [12] He also noted that Defendant admitted in cross-examination, perhaps inadvertently, that she had falsified her father’s will and that this constituted a serious admission of a violation of good faith and of the Criminal Code . [13] 3.

The application to revoke the Lacoste Judgment [ 41 ] On 2 June 2022, Defendant filed an application to revoke the Lacoste Judgment ( Third Revocation Application ). [ 42 ] On 4 June 2022, Plaintiff filed an application (subsequently amended) to dismiss Defendant’s application to revoke, invoking abuse of procedure and seeking a declaration against Defendant as a vexatious and quarrelsome litigant ( Plaintiff’s Application ). [ 43 ] On 2 August 2022, the Court of Appeal dismissed Defendant’s application for leave to appeal the Lacoste Judgment, holding that she filed outside the time limit and that her appeal had no reasonable chance of success. [14] C.

Defendant’s action against Mtre. Merling [ 44 ] After the Granosik Order and before filing the Second Revocation Application, Defendant filed on 27 April 2021 an originating application against Mtre. Merling for $550,000 in connection with the Declaration of Trust. [15] [ 45 ] More specifically, Defendant alleges that Mtre. Merling failed to file the Declaration of Trust in the Index des immeubles and to

produce it for the trial before Justice Rogers, and therefore Defendant could not satisfy her burden of proof as to the 25% share of the Property. [ 46 ] She alleges the appraised value of the Property to be approximately $1.6 million and therefore the loss of the 25% share represents damages of $400,000. [ 47 ] The balance of the claim is for the amount that Defendant has spent on lawyers, and she also seeks reimbursement for any amount she will need to pay to the Estate as part of an accounting of profits. III. ANALYSIS A.

ADMISSIBILITY OF AFFIDAVIT [ 48 ] Before addressing the two main issues arising from Plaintiff’s Application, the Court is required to rule on Plaintiff’s objection to Defendant’s affidavit submitted in response to Plaintiff’s Application and bearing the title Affidavit of Contestation of the Plaintiff- Respondent’s Application to Dismiss Defendant-Petitioner M. R.’s Motion for Revocation of Judgment for Abuse of Procedure and to have Defendant-Petitioner M. R.

Declared a Vexatious and Quarrelsome Litigant. [ 49 ] On 4 January 2023, two days before the hearing in this matter, Defendant informed the Court that she would like to submit her affidavit, signed on the same day, and the explanation provided for the tardiness was that her signature could not be obtained earlier due to the holidays. [ 50 ] However, the real problem with the timing of the affidavit is not the fact of the holidays but rather that Defendant has been aware of Plaintiff’s Application since June 2022 and yet did not think to submit her affidavit soon after that moment in time. [ 51 ] She had another opportunity when the Honourable Silvana Conte issued a case management order on 29 September 2022 setting down 6 January 2023 as the date for the hearing in this matter. [ 52 ] That procedural step was the perfect moment to announce the intention to submit an affidavit.

While there seems to have been an imbroglio whereby the lawyer for Defendant missed the notification for the hearing before Justice Conte and therefore was not present, Defendant could have simply informed Plaintiff as soon as she saw the case management order that she had the intention to submit an affidavit. [ 53 ] She did not do so because the idea of an affidavit was an after-thought, this was admitted by her lawyer at the hearing. [ 54 ] Plaintiff objects because he argues that the notification of the affidavit at such a late stage, on the eve of the hearing, was not contemplated by the case management order of Justice Conte and is tardy, especially considering the requirement under

article 250 CCP to file any evidence at least 15 days before the scheduled hearing date. [ 55 ] He also objects on the grounds that the affidavit is yet another example of abuse of proceeding under

article 51 CCP . Finally, he objects on the grounds of relevance. [ 56 ] The Court maintains the objection and excludes the affidavit on all three of the above grounds. The affidavit is filed too late, it is an abuse of procedure, and it is irrelevant, therefore it is inadmissible as evidence. [ 57 ] The affidavit consists of 36 paragraphs involving a mixture of facts that are irrelevant to Plaintiff’s Application and arguments that are supposed to be made orally, as set out in

article 52 paragraph 2 CCP .

While a written outline of arguments is welcome, the document cannot be presented as an affidavit consisting of a mixture of factual assertions and legal arguments. [ 58 ] An example of an irrelevant assertion, and a vitriolic one at that, can be found at paragraph 13 of the affidavit, which states that “the Liquidator cheated my mother […] out of her rightful share of my father’s estate in numerous ways.” [ 59 ] The affidavit provides a further example of an abuse of procedure and a pattern of conduct on the part of Defendant to multiply proceedings and repeatedly return to Court with purported evidence and proceedings in a tardy manner.

It will be weighed in the balance as part of the analysis below on quarrelsome and vexatious conduct. B. Abuse of procedure 1. Applicable principles [ 60 ] A claim of abuse of procedure made under

article 51 CCP must establish that Defendant’s Third Revocation Application can be characterized as “clearly unfounded, frivolous […] vexatious or quarrelsome […] excessive or unreasonable or that causes prejudice to another person, or attempts to defeat the ends of justice […]”. [ 61 ] The Court of Appeal has spoken of

article 51 CCP being satisfied where the proceeding is instituted in bad faith or recklessly, or where the filing of the application is objectively wrongful such that a reasonable and prudent person in the same position as the Plaintiff would conclude that there was no foundation for the proceeding. [16] [ 62 ] The test proceeds in two steps:

a) the party making the application to dismiss must establish abuse but can do so in a

summary manner;

b) if the applicant succeeds in that first step, then the burden is reversed and the respondent to the application must show on a prima facie basis that the proceeding is justified in law and the conduct is not unreasonable.

[ 63 ] A useful

summary of the principles under articles 51 - 54 CCP is found in the recent judgment of the Honourable Martin F. Sheehan in Hrabovskyy v Attorney General of Canada : 138.1. The sound administration of judicial resources is essential to ensuring access to justice. To safeguard this sound administration, courts have been granted tools to put an end to frivolous claims before they can monopolize too much of the Court’s time and energy. 138.2. This being said, the consequences of dismissing a claim at a preliminary stage are very serious.

The cardinal principle of access to justice also requires that the Court exercise the greatest caution before wielding the power to dismiss a case. As a general rule, putting a premature end to a judicial recourse should be avoided unless the claim is “necessarily doomed” and the situation is “clear and obvious.” 138.3. This caution is warranted in part because the evidence available at this preliminary stage is

summary in nature whereas the trial judge is usually better placed to decide a question in light of all the evidence filed. “[A]n action or proceeding that appears to be an abuse of process early in the proceedings will sometimes reveal itself to be quite proper as fuller evidence supporting the claim enters the record.” Thus, a request should only be granted if it is clear that further consideration or a more complete record would be superfluous. 138.4.

By separating the grounds of clearly unfounded from some of the other measures of impropriety, “the legislature has made plain that circumstances exist in which an action might have a basis in law or in fact yet still be subject to dismissal or some other sanction.” In addition to a judicial application or pleading that is clearly unfounded or frivolous, abuse of procedure includes:

a) a judicial application or pleading that is intended to delay;

b) conduct that is vexatious or quarrelsome;

c) using the procedure in a way which is excessive or unreasonable;

d) use that causes prejudice to another person; or

e) use of the procedure that attempts to defeat the ends of justice, for example, if it has the effect of limiting the freedom of expression of others in the context of public debates. 138.5 Clearly unfounded and frivolous” is not that same as “doubtful” or “challenging.” When assessing abuse based on a proceeding being unfounded, the Court should not take into consideration the degree of difficulty that a party may have to prove its allegations. 138.6.

As part of its examination, the Court may rely on the entire record including the proceedings, exhibits and out-of-court examinations already filed by the parties. 138.7. When abuse is based on clearly unfounded proceedings or vexatious conduct, the Court may conclude that there is abuse regardless of a party’s intent. It is not necessary to demonstrate malice or bad faith on the part of the person who filed the contested pleading. 138.8.

Vexatious conduct or blameworthy behaviour in the exercise of a remedy can include making allegations or seeking conclusions that do not stand up to careful analysis and denote a propensity for exaggeration which is out of all proportion to the actual dispute between the parties. 138.9.

When abuse is summarily established, the burden is shifted and the party who introduced the contested pleading must demonstrate, but only on a prima facie basis that they are not acting unreasonably and that its pleading is justified in law. 138.10.Abuse can be declared “at any time” even on the Court’s “own initiative.” 138.11.the situation is clear or if it is based solely on the resolution of a specific question of law, the Court must rule without unnecessarily postponing the analysis of the issue to a later judicial stage. [17] 2.

Application of the principles to the present case [ 64 ] Defendant’s Third Revocation Application is clearly abusive, for the following reasons. [ 65 ] Defendant seeks to have the Lacoste Judgment revoked for the reason that she subsequently found phone records of conversations she claims to have had with Mtre. Merling in November 2017. [ 66 ] According to Defendant, these phone records “would probably have led to a different judgment if the party concerned or its lawyer had become aware of that evidence in sufficient time, although they acted with due diligence”, as provided in

article 345 CCP . [ 67 ] The Court rejects the argument since it is obvious on the face of the Lacoste Judgment that the first ground for his conclusion to dismiss Defendant’s Second Revocation Application was that “had she looked for the Declaration of Trust in her own New York City apartment earlier, she would most probably have found it. It was in her possession and under her control. She simply had to look”. [18] [ 68 ] The part about the communications with Mtre.

Merling is secondary in the reasoning in the Lacoste Judgment, it literally comes after the point above and it is introduced with “Also …”. [19] [ 69 ] The two grounds relied upon in the Lacoste Judgment are distinct and the first ground was sufficient for the reasoning to lead to the conclusion that Defendant’s Second Revocation Application needed to be dismissed. [ 70 ] Accordingly, if the Lacoste Judgment had relied only on the first ground, the fact that Defendant later found the phone records

ostensibly evidencing calls with Mtre. Merling would have been of no consequence. [ 71 ] It is precisely that reality that makes the Third Revocation Application an abuse of procedure: Defendant is wilfully blind to the fact that the Lacoste Judgment’s analysis of the communications with Mtre. Merling is obviously not determinative of the result in that judgment, it simply reinforces the result already determined by the analysis of whether Defendant could have found the Declaration of Trust through a diligent search. [ 72 ] The Court can end its analysis with the above conclusion.

However, it also concludes that the Third Revocation Application has no chance of success on the merits since it is clearly unfounded, [20] for the following reasons. [ 73 ] Defendant alleges that she was not in a position to obtain the phone records prior to the testimony of Mtre. Merling before Justice Lacoste because: • Mtre. Merling testified on the last day of trial; • Defendant did not know that he would be called as a witness; • She had already addressed the issues of her past contacts with Mtre.

Merling in an email in 2020 and he apparently did not respond to it; • She did not expect that he would choose to deny “the undeniable” after he was called to testify on the last day of trial; • She is dependent on a third party to retrieve the phone records, which do not belong to her; • A “special computer application” was needed to retrieve the phone records. [21] [ 74 ] The phone records simply show calls to the office of Mtre. Merling for very short periods, from one to four minutes, between 3 and 7 November 2017.

This is no silver bullet in terms of evidence. [ 75 ] Based on Justice Lacoste’s determination of the significant difference in credibility as between Mtre. Merling and Defendant, [22] it is difficult to see how evidence of very short calls to his office would lead to a different judgment, within the meaning of the revocation criterion at

article 345 paragraph 2 ( 4) CCP , even if the communications with Mtre. Merling were to be considered determinative in the reasoning of the Lacoste Judgment. [ 76 ] Accordingly, the Court concludes that the Third Revocation Application is an abuse of procedure and should be dismissed. C. Vexatious and quarrelsome litigant 1. Applicable principles [ 77 ] While there is no explicit provision in the Code of Civil Procedure regarding the declaration of a litigant as vexatious and quarrelsome, other than the general provision on abuse of procedure at

article 51 CCP , articles 68-69 of the Regulation of the Superior Court of Québec in civil matters provides for the declaration being applied for in the present case: 68. Necessity to obtain prior authorization.

If a person acts in a quarrelsome manner, by exercising litigious rights in an excessive or unreasonable manner, the court may, on initiative or on request, in addition to the measures provided for in the Code of Civil Procedure (chapter C-25.01 ), prohibit that person from instituting a judicial application or from producing or presenting a pleading in a previously instituted proceeding without prior authorization from the Chief Justice or a judge designated by the Chief Justice, and on the conditions the latter determines. 69. Order.

The order may be general or limited to certain proceedings, courts or bodies subject to the judicial control of the Superior Court, and may apply in one or more judicial districts, or with respect to one or more persons. It may also be limited in time.

In exceptional circumstances, the order of prohibition may prohibit or limit access to a court house. [23] [ 78 ] The case law sets out the factors to be considered: 1 Le plaideur quérulent fait montre d'opiniâtreté et de narcissisme; 2 Il se manifeste généralement en demande plutôt qu'en défense; 3 Il multiplie les recours vexatoires, y compris contre les auxiliaires de la justice.

Il n'est pas rare que ses procédures et ses plaintes soient dirigées contre les avocats, le personnel judiciaire ou même les juges, avec allégations de partialité et plaintes déontologiques; 4 Il réitère les mêmes questions par des recours successifs et ampliatifs : la recherche du même résultat malgré les échecs répétés de demandes antérieures est fréquente; 5 Les arguments de droit mis de l'avant se signalent à la fois par leur inventivité et leur incongruité.

Ils ont une forme juridique certes, mais à la limite du rationnel; 6 Les échecs répétés des recours exercés entraînent à plus ou moins longue échéance son incapacité à payer les dépens et les frais de justice afférents; 7 La plupart des décisions adverses, sinon toutes, sont portées en appel ou font l'objet de demandes de révision ou de rétractation;

8 Il se représente seul; 9 Ses procédures sont souvent truffées d'insultes, d'attaques et d'injures. [83] Pour sa part, le Tribunal ajouterait à cette énumération deux autres traits assez courants en la matière :

a) La recherche de condamnations monétaires démesurées par rapport au préjudice réel allégué et l'ajout de conclusions atypiques n'ayant aucune commune mesure avec l'enjeu véritable du débat;

b) L'incapacité et le refus de respecter l'autorité des tribunaux dont le plaideur quérulent revendique pourtant l'utilisation et l'accessibilité. [24] [ 79 ] It is important to note that the above have to reviewed and applied globally since they are factors and not criteria. [25] 2. Application of the principles to the present case [ 80 ] In the present case, factors 1, 4, 7, and in part factors 3, 8 and 9 find application. The Court provides examples below. [ 81 ] Factor 1 is “ Le plaideur quérulent fait montre d'opiniâtreté et de narcissisme ”.

Obviously, the Court’s role in this exercise is not to make professional psychological determinations of narcissistic personality disorder, but rather, apply the term from a layperson’s point of view. [ 82 ] The Court quoted above from paragraph 13 of Defendant’s most recent affidavit, where she alleges that the Liquidator cheated her mother.

This is an example of “opiniâtreté” and an insult and attack contemplated under factor 9. [ 83 ] The Court also notes a refusal to let go of past disputes, she “réitère les mêmes questions par des recours successifs et ampliatifs” (factor 4). [ 84 ] On this point, Justice Lacoste also observed as follows: Many times, she failed to answer the questions put to her in a simple and clear manner. She talked about other issues and argued with counsel.

Her examinations on affidavits (both in the first Application and the Second Application process) suffer from similar problems. [26] [ 85 ] Plaintiff refers the Court to the passage below from an out-of-court examination of Defendant by videoconference on 25 August 2021 as an example of conduct further supporting Plaintiff’s Application: A- you are attempting to help R. Ra. rob me, continue to rob and rob and rob. Rob me, rob my mother, rob the Estate. You are the one that’s abusive and you are the one that should be held in contempt. Q- Ms.

R., your opinion is noted. […] A- …it has been proven that this property belongs to me. So, if you had any ethical values you would tell R. Ra., “Hey, come on! It’s time to be fair to M. and not constantly abuse her and rob her and continue to rob her.” […] Q- […] Who are you looking at? Who am I hearing in the other room? A- No one. Q- So, who are you looking at? A- At the wall, at the Mezuzah, that God should give you brains to be fair to M.. Q- You’re… A- I'm asking God, almighty God, that you should be ethical.

Q- Your opinion is noted that apparently God has to give me brains and the Court will - the Court record will reflect it. A- Yes, obviously you are not ethical because you would have recused yourself and told R. Ra., "Give

her back the property, it belongs to her." [27] [ 86 ] The Court agrees with Plaintiff that the above passage supports his application and that the exchange between Defendant and the lawyer for Plaintiff evidences narcissism, insults, and re-litigation of issues by Defendant in a specific context where the lawyer was simply asking whether someone was speaking to Defendant. [ 87 ] At the outset of the examination, the lawyer for Plaintiff had asked for confirmation from Defendant that she was in a closed room and that no one else was in the room. [28] From the above passage, it is obvious that the lawyer for Plaintiff was trying to ensure that the rules on cross-examinations were being followed, namely that Defendant was not being coached by someone during the examination. [ 88 ] Instead, Defendant launched into a personal insult against a lawyer (factor 3) as well as re-litigation of issues (factor 4), i.e. ownership of the 25% share in the Property and the question of the disqualification of Plaintiff’s firm, both of which had been resolved by the Rogers Judgment and the Gaudet Order, respectively, and yet the tangent was irrelevant to the simple question posed by the lawyer. [ 89 ] For the factor of narcissism, the Court notes in the above passage the reference by Defendant to herself in the third person. [ 90 ] It is clear from the record that Defendant keeps fighting previous battles that she has lost.

Not only does she refuse to accept defeats in her litigation, but she keeps coming up with purported evidence that should have been filed at the appropriate time, when she had to put her best foot forward. [ 91 ] Litigation is not an iterative process whereby a litigant can try to wear down opposing parties and the judicial system until she gets her desired result. [ 92 ] The fact that Defendant searches for the same result by filing appeals that are doomed to defeat, [29] and seeking revocations of final judgments on flawed grounds, satisfies factor 4 and factor 7. [ 93 ] As for factor 8, the fact of the litigant being self-represented, the Court notes that Defendant was not represented when she filed her Third Revocation Application. [ 94 ] Based on all of the above, the Court concludes that there is no hope that the trend will change.

Defendant will always be fighting past battles, making personal attacks, and generally do everything possible so that Plaintiff is prevented from completing his task and liquidating the Estate. [ 95 ] In the case of 9188-6150 Québec inc. c Asaduzzaman ( 9188 ), Justice Granosik partially granted an application to declare quarrelsome and vexatious the defendants in that case. [30] [ 96 ] While the application was for a declaration at large, he imposed a restriction on the defendants only in relation to the immovables at the origin of the judicial proceedings, leaving the defendants free to engage in any other proceedings and as an example, he mentioned divorce, small claims, or latent defects for their houses. [ 97 ] Tracking the 9188 case, Plaintiff also asks for a narrowed declaration as opposed to a declaration at large. [ 98 ] Based on the observations made above, the Court concludes that Plaintiff is well-founded in his application. [ 99 ] The judicial proceedings regarding the 25% interest in the Property must simply stop so that Plaintiff can proceed with the liquidation.

Plaintiff has been the liquidator of the Estate since November 2003 and the present judicial proceedings started in 2016. [ 100 ] Except for Defendant’s litigation with Mtre.

Merling, [31] on which the Court does not comment or adjudicate one way or another in the present judgment, Defendant’s litigation with the parties in the matter of the Property must now come to a close so that everyone can get on with their lives. [ 101 ] The Court must ensure that the file not become like the never-ending estate litigation of Jarndyce v Jarndyce in Charles Dickens’s novel, Bleak House , a fictionalized but cautionary example of gross disproportionality in civil proceedings cited by various courts across different jurisdictions. [32] Lord Simon of Glaisdale of the House of Lords described the legal relevance of the Dickens sub- plot as follows in the 1977 case of Ampthill Peerage : The picture drawn by Charles Dickens in Bleak House of the long-drawn-out and ruinous lawsuit, Jarndyce v.

Jarndyce […] was based on fact. The law itself is fully conscious of the evil of protracted litigation. Our forensic system, with its machinery of cross-examination of witnesses and forced disclosure of documents is characterised by a ruthless investigation of truth. Nevertheless the law recognises that the process cannot go on indefinitely.

There is a fundamental principle of English law generally expressed by the Latin maxim (going back to Coke’s Commentary on Littleton , p. 330) which can be translated: “It is in the interest of society that there should be some end to litigation.” [33] [ 102 ] Plaintiff also asks that the judgment declaring Defendant to be a quarrelsome litigant be sent to the Ministry of Justice of Quebec for entry into the public registry of litigants subject to authorization by the Superior Court of Québec. [34] [ 103 ] Given that the declaration of quarrelsomeness is limited to the Property and the parties to the present litigation, the Court is of the view that entry of the judgment in the public registry is not necessary.

Justice Granosik issued no such order in the 9188 case. [35] [ 104 ] As for the amount of damages claimed in Plaintiff’s Application, Plaintiff proposes that the Court split this from the liability phase, similar to the manner of proceeding by Justice Lacoste. [36] The Court agrees with this proposal. Instructions as to the procedure to be followed are set out in the dispositif below.

FOR THESE REASONS, THE COURT: [ 105 ] GRANTS the objection of Plaintiff R. Ra. ( Plaintiff ) and DECLARES inadmissible the affidavit of Defendant M. R. ( Defendant ) dated 4 January 2023 and entitled Affidavit of Contestation of the Plaintiff-Respondent’s Application to Dismiss Defendant- Petitioner M. R.’s Motion for Revocation of Judgment for Abuse of Procedure and to have Defendant-Petitioner M. R. Declared a Vexatious and Quarrelsome Litigant ; [ 106 ] GRANTS in part Plaintiff’s Amended Application to Dismiss Defendant/Petitioner M.

R.’s Motion for Revocation of Judgment , for Abuse of Procedure and to have Defendant/Petitioner M. R. Declared a Vexatious and Quarrelsome Litigant (sequence no. 118 on the plumitif ); [ 107 ] DECLARES as abusive Defendant’s proceeding entitled M.

R.’s Application to Revoke a Judgment Rendered by the Honourable Justice Stephane Lacoste on April 28, 2022, filed on 2 June 2022 (sequence no. 108 on the plumitif , Third Revocation Application ); [ 108 ] DISMISSES the Third Revocation Application; [ 109 ] DECLARES Defendant to be a quarrelsome and vexatious litigant with respect to any issue or matter related directly or indirectly to the immovable located at [...], Town A, [...] ( Property ), with the exception of Defendant’s proceedings against notary Sheldon Merling in court file no. 500-17-116552-210, on which the Court does not comment or adjudicate one way or another in the present judgment; [ 110 ] PROHIBITS Defendant from filing any legal proceeding before any court or tribunal with respect to any issue or matter related directly or indirectly to the Property and involving Plaintiff, Co-Defendants, or any of Mi.

R., Sh. R., or D.

R. as principal parties or mises-en-cause, without approval of the chief justice (or his/her delegate) of the competent court, or president or director (or his/her delegate) of the competent tribunal; [ 111 ] DECLARES Defendant liable for Plaintiff’s damages in respect of the Third Revocation Application and ORDERS that the damages phase in which Plaintiff claims for the costs and legal fees incurred by him in respect of the Third Revocation Application, as well as punitive damages, be split from the liability phase in accordance with the following orders; [ 112 ] ORDERS Plaintiff to submit in writing, by email addressed to the undersigned, his representations on the issue of damages for costs, legal fees, and punitive damages, and to attach to the representations all relevant invoices, receipts, or other exhibits, no later than 28 February 2023; [ 113 ] AUTHORIZES Defendant to respond to the above submissions on quantum of damages by email addressed to the undersigned, and if she so chooses then ORDERS her to respond by no later than 31 March 2023; [ 114 ] DECLARES that the undersigned will subsequently set down the next steps in the quantification of damages; [ 115 ] WITH legal costs. __________________________________ AZIMUDDIN HUSSAIN , j.S.C.

Mtre. Nicholas Chine Stein & Stein Inc. Lawyer for Plaintiff R. Ra., es qualité Mtre. Jean-Faustin Badimboli-Atibasay DJB Avocats Lawyer for Defendant M. R. Date of hearing: 6 January 2023.