2013 QCCQ 2428, 2013 QCCQ 2428

Di Paolo c. Fleurant 2013 QCCQ 2428 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-191722-126 DATE: February 28, 2013 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ LUISA MARIOTTI DI PAOLO and ERIBERTO DI PAOLO Plaintiffs v.

LUC FLEURANT and ALI GHOLAMPOUR and GUILLAUME DESJARDINS Defendants and JEAN-CHRISTOPHE GAGNÉ and DANIEL GAGNÉ and SOPHIE LA SALLE Mises en cause ______________________________________________________________________ Judgment on a Motion to relieve Plaintiffs from the consequences of their failure to inscribe for proof and hearing ______________________________________________________________________ [ 1 ] The Court has to decide a motion in virtue of articles 110.1 and 274.3 of the Code of Civil procedure to relieve the Plaintiffs of their default to file their inscription for proof and hearing within the peremptory time limits ("The Motion to relieve").

For the Court to entertain this motion, Plaintiffs must establish that their petition respects the criteria included in the third paragraph of

article 110.1: 110.1 Actions and applications that are to be contested orally must be heard or scheduled for proof and hearing and, in the latter case, referred by order to the clerk for scheduling of the hearing, and those that are to be contested in writing inscribed for proof and hearing, within a peremptory time limit of 180 days after service of the motion. In family matters, however, the peremptory time limit is one year.

The court may extend the peremptory time limits, if warranted by the complexity of the matter or special circumstances, upon a request submitted at the time of presentation of the motion to institute proceedings. If, on the day the motion to institute proceedings is presented, the parties are unable to assess the time needed to allow the scheduling of the hearing or the inscription of the case, they may request an extension on the same grounds at any time before the expiry of the peremptory time limit.

The court may also relieve a party from the consequences of failure to act within the time limit upon proof that it was in fact impossible for the party to act within the time limit . The decision must in all cases contain reasons.

(Emphasis added) [ 2 ] The Defendants, all ex-attorneys of Mr. Di Paolo contest the motion arguing that no impossibility to act has been shown. THE MOTION TO DISAVOW [ 3 ] Although profusely detailed and somewhat difficult to follow, the principle proceeding ("The Motion to disavow") aims to disavow three attorneys who represented Plaintiff Eriberto Di Paolo in the following case: Syndicat Manoir Bellevue vs Eriberto Di Paolo 500-22-160943-091 [1] ( the Bellevue case). [ 4 ] The Motion to disavow should have been inscribed for proof and hearing at the latest on October 22, 2012.

Plaintiffs neglected to do so, and they were reputed to have discontinued the case. THE DEBATE [ 5 ] In order to decide this motion, the Court must first determine:

a) Who are the Plaintiffs?

b) Who are the Defendants?

c) What is the juridical interest of each of the Plaintiffs? [ 6 ] Then the Court must decide the ultimate question:

d) Has an impossibility to act been established?

a) Who are the Plaintiffs? [ 7 ] The Plaintiffs are husband and wife. Mr. Di Paolo is the sole owner of a condominium unit in the building administered by the Manoir Bellevue syndicate of co-owners (the Syndicate). The debate, in the Bellevue case , centred on unpaid condominium fees for this unit. Mrs. Di Paolo was not a co-owner, nor a party to that litigation. [ 8 ] During the proceedings in that matter, Mr. Di Paolo retained, in succession, the three co-Defendants as attorneys. [ 9 ] Mr.

Di Paolo was condemned on September 28, 2011 by judge Sylvie Lachapelle, J.C.Q. as follows: ACCUEILLE partiellement la requête introductive d'instance de Syndicat Manoir Bellevue : CONDAMNE Eriberto Di Paolo à payer à Syndicat Manoir Bellevue la somme de 32 275 $, avec intérêts au taux de 5 % l'an et l'indemnité additionnelle prévue à l'

article 1619 du Code civil du Québec , à compter de la mise en demeure du 3 février 2009 ; LE TOUT AVEC DÉPENS. [ 10 ] Mr. and Mrs. Di Paolo, jointly, are acting as Plaintiffs in the Motion to disavow. [ 11 ] Mr. Di Paolo gave his wife a mandate dated May 23, 2012, in the following terms (Exhibit R-1): Son mandataire, auquel il donne le pouvoir de, pour lui et en son nom: 1. Dans tous les cas où la loi le permet, instituer, soutenir, abandonner ou défendre toute action, saisie, poursuite et autre procédure concernant le mandant et toute

partie de ses biens mobiliers et immobiliers; demander l'examen sur faits et articles; poursuivre toute inscription et faux, décliner la juridiction de toute cour ou de tout juge; présenter toute requête et toute action; transiger, composer et régler à l'amiable et à cette fin consentir à tout compromis, remise ou arrangement; soumettre tout différent à l'arbitrage ou à la médiation ou à tout autre mode alternatif de règlement de conflits; 2. Faire toute déclaration relative à l'état civil du mandant et à sa résidence; 3.

Représenter le mandant dans l'exercice des droits et pouvoirs que le régime matrimonial lui attribue et que la loi lui accorde par le fait du mariage; 4. Pour les fins du présent mandat, mon mandataire pourra; Passer et signer tout acte, document ou écrit nécessaire, élire domicile, recevoir signification et généralement faire le nécessaire avec le même effet que si cela était fait par le mandant lui-même.

Les pouvoirs donnés dans le présent mandat s'étendent notamment mais non limitativement au dossier # 500-22-160943-091, de la Cour du Québec, Chambre civile, dans le district de Montréal, dont le demandeur-intimé est Syndicat Manoir Bellevue et le défendeur- requérant est le mandant Eriberto Di Paolo . (Emphases added) [ 12 ] At all relevant times in this matter, the Plaintiffs were acting without the aid of an attorney, except for the presentation of this Motion to relieve. [ 13 ] Their Motion to disavow was first presented on May 11, 2012 and amended on August 15, 2012.

b) Who are the Defendants? [ 14 ] Me Luc Fleurant appeared for Mr. Di Paolo in the Bellevue case on August 7, 2009 and withdrew on November 13, 2009. [ 15 ] The allegations concerning Me Fleurant (paragraphs 17 to 25 and paragraph 40 of the original motion), are basically that he did not represent Mr. Di Paolo adequately. [ 16 ] Me Ali Gholampour appeared for Mr. Di Paolo in Bellevue case on May 25, 2010. He ceased to represent on September 10, 2010, when Mr. Di Paolo appeared personally once again. [ 17 ] The allegations concerning Me Gholampour appear in paragraphs 21 to 50 of the original motion. Mr.

Di Paolo essentially alleges that Me Gholampour was not authorized to fix the trial date in the Bellevue file. [ 18 ] Me Guillaume Desjardins acted for Mr. Di Paolo in the Bellevue case as of December 2010 and represented him for the trial before judge Lachapelle, J.C.Q. in February 2011. [ 19 ] The allegations concerning Me Desjardins are essentially to the effect that he should have requested judge Lachapelle's recusation and that he failed to produce certain relevant exhibits at trial.

c) What is the juridical interest of each of the Plaintiffs? [ 20 ]

Article 55 C.C.P . reads: 55. Whoever brings an action at law, whether for the enforcement of a right which is not recognized or is jeopardized or denied, or otherwise to obtain a pronouncement upon the existence of a legal situation, must have a sufficient interest therein. [ 21 ] Clearly, Mr. Di Paolo has a juridical interest in the Motion to disavow. He is the sole owner of the condominium unit. He was the sole Defendant in the Bellevue case. It was he who had retained the services of the co-Defendants. He alone was condemned to pay by judge Lachapelle. [ 22 ]

Article 243 Code of Civil procedure reads: 243. A party may disavow an attorney who has exceeded his powers or who has acted for him without a mandate. (Emphases added) And if the disavowal is maintained,

article 247 C.C.P. describes the consequence: 247. If the disavowal is maintained, the acts disavowed are annulled and the parties are placed in the same position as they were in when the acts were done. [ 23 ] Mrs. Di Paolo was never the client of any of the co-Defendants. She never gave them any instructions and had no power to do so. Co-Defendants never acted for her. Mrs. Di Paolo invokes the mandate she received from her husband. It must be noted that it is dated May 23, 2012, which is not only after the original trial but also after the institution of the Motion to disavow.

This mandate, given after the fact, cannot retroactively give Mrs. Di Paolo juridical interest in the Bellevue case. [ 24 ] Mrs. Di Paolo is not an "attorney" within the meaning of

article 59 C.C.P .: 59. A person cannot use the name of another to plead, except the State through authorized representatives. Nevertheless, when several persons have a common interest in a dispute , any one of them may appear in judicial proceedings on behalf of them all, if he holds their mandate. The power of attorney must be filed in the office of the court with the first pleading; thereafter the mandate cannot be revoked except with leave of the court and is not affected by the death or change of status of the mandators. In such case, the mandators are jointly and severally liable with their mandatary for the costs. (Emphasis added) The mandatory or attorney within the meaning of this

article must himself have a personal juridical interest in the case. Mrs. Di Paolo has no such interest. Therefore, the

article does not apply. [ 25 ] For these reasons, Mrs. Di Paolo does not have any juridical interest to disavow her husband's ex-attorneys.

d) Has an impossibility to act been established? [ 26 ] The Court of appeal has described what constitutes an impossibility, in fact, to act. Gross negligence on the part of an attorney does not qualify [2] . Also, the impossibility to act must be demonstrated. [ 27 ] A party representing himself must also suffer the consequences of his gross negligence or the absence of proof. This is such a case. [ 28 ] The Motion to disavow came to Court on numerous occasions. [ 29 ] The Motion to relieve contains allegations that it was in fact impossible for Mrs. Di Paolo to act within the time limit.

A letter dated October 22, 2012, prepared by Mrs. Di Paolo's psychiatrist is filed in support of this allegation.

[ 30 ] Since Mrs. Di Paolo has no juridical interest to demand the disavowal of her husband's ex-attorneys, her ability to act here is of no relevance. The Court, therefore, is not required to decide whether or not these allegations constitute an impossibility. [ 31 ] Mr. Di Paolo is nonetheless pleading that since his mandatory (Mrs. Di Paolo) is in a situation of impossibility to act, he must benefit from such impossibility. [ 32 ] This argument is not founded. [ 33 ] The mandate given to Mrs. Di Paolo is not one that falls within the meaning of

article 59 C.C.P. Also, giving a mandate does not allow a person to relinquish all of his rights or responsibilities. Mr. Di Paolo is a Plaintiff in this matter. His first responsibility as a litigant is to bring his Motion to disavow to trial in a timely manner. This is a personal responsibility as well as a responsibility unto the Court and the opposing parties. Even if his wife is in a situation where she cannot act, he still can and must do so. [ 34 ] The Motion to relieve contains no specific allegation whatsoever concerning Mr.

Di Paolo's ability to act. [ 35 ] The only allegations in the Motion to relieve that approach being an allegation of impossibility to act are paragraphs 16 and 17 which read: 16. Il faut noter que c'est la demanderesse qui pilote le présent dossier car le demandeur s'occupe principalement d'un dossier judiciaire le concernant dans lequel il est en litige avec son ancien employeur « The Gazette » résultant d'un lock-out ayant duré plus de 9 ans (il y occupait un emploi comme typographe) ; 17.

Le demandeur a d'ailleurs pris la peine d'ailleurs de confier une production générale à cette fin mandatant la demanderesse d'agir pour lui, tel qu'il appert de la production signée devant notaire le 23 mai 2012 et annexée à la présente requête comme pièce R-1 ; However, Mr.

Di Paolo's claim that he was too busy in another litigation is clearly not an impossibility to act, in particular when one takes into account the chronology of this case as set out hereafter. [ 36 ] The record, as well as the allegations of the Motion to relieve show that prior to October 22, 2012, a Motion to extend the delays was presented by the co-Plaintiffs. This Motion was to be heard on August 1, 2012 (paragraph 12 of the Motion to relieve).

It was continued to August 31 (paragraph 14) and again to September 14, 2012 (paragraph 15). [ 37 ] According to the representations of the co-Defendants at the hearing of the Motion to relieve, Mr. Di Paolo was present on both dates in August. It was he alone who requested and obtained the postponement to September 14 (paragraph 15 of the Motion to relieve). He was however absent without explanation in September. [ 38 ] Also, Mr. Di Paolo was present when the Motion to relieve was pleaded.

He did not contest these representations, nor did he attempt to testify to prove that it was in fact impossible for him to act prior to October 22, 2010. [ 39 ] Mr. Di Paolo therefore had the occasion to allege facts in his Motion to relieve as well as to testify to any impossibility to act on his part. He did not do so. In absence of any such impossibility to act, the Motion to relieve must be dismissed.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiffs' Motion to relieve them of the consequences of their failure to inscribe for proof and hearing; THE WHOLE , with costs, in favor of the Defendants. __________________________________ Scott Hughes, J.C.Q. Me Simon Cadotte For the Plaintiffs Me Guillaume Desjardins Personally Me Charles-Justin Nichols For the two syndicates: Manoir Bellevue and Manoir Avoriaz M. Benjamin Prud'homme (stagiaire) For the defendant Me Fleurant

Me Marie-Claude Vernier Lapointe Rosenstein Marchand Melançon For the mises en cause Me Ali Gholampour Not present at the hearing Date of hearing: December 20, 2012