2013 QCCA 538, 2013 QCCA 538

Mazhero c. CBC Radio Canada 2013 QCCA 538 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023182-124 et 500-09-023385-131 (500-17-071464-120) DATE: Le 21 mars 2013 IN THE PRESENCE OF THE HONOURABLE JACQUES DUFRESNE, J.A. FRANCIS MAZHERO PETITIONER – Plaintiff v. CBC RADIO CANADA BELL CANADA MICROSOFT CORPORATION NEW ZIMBABWE MEDIA LTD. RESPONDENTS - Defendants JUDGMENT [ 1 ] Francis Mazhero has brought two motions before me as a judge sitting in chambers. [ 2 ] The first is a motion to stay under

section 65.1 of the Supreme Court Act and

article 522 C.C.P. pending his appeal to the Supreme Court of Canada of a judgment refusing leave of appeal, rendered on December 21, 2012 by a judge of this Court, as well as of the decision of the Chief Justice declining to review that judgment for lack of jurisdiction. [ 3 ] The criteria applicable to a motion to stay are well known: the grounds of appeal must be serious, the harm suffered irreparable, and the balance of inconvenience must weigh in favour of the petitioner [1] .

Moreover, the suspension sought must produce some concrete effect for the petitioner, otherwise it serves no purpose. [ 4 ] The petitioner has failed to satisfy these criteria. The judgment of December 21, 2012 dismissed a motion for leave to appeal from a judgment of Justice Carol Cohen of the Superior Court rendered on November 14, 2012 which was essentially a case management decision. Among other conclusions, Cohen, J. fixes the hearing peremptorily for four days, starting on February 4, 2013.

On February 22, 2013, De Wever, J. of the Superior Court rendered judgment on the merits dismissing petitioner’s suit. [ 5 ] In short, the suspension sought by the petitioner would have no practical effects in the circumstances. The motion to stay pending the appeal before the Supreme Court is accordingly dismissed. [ 6 ] The second motion is dated February 22, 2013 and contains two distinct requests. [ 7 ] The first is for leave to appeal from one or more interlocutory judgments rendered on February 4, 2013 by De Wever, J., including his decision to refuse a postponement of the hearing.

These interlocutory judgments cannot be the subject-matter of a motion for leave to appeal given that judgment on the merits was rendered on February 22, 2013. The conclusions of the motion regarding these interlocutory judgments must therefore be dismissed. [ 8 ] The second is for an order, pursuant to

article 49 C.C.P., against three respondents and their lawyers to appear before a judge of this Court at a date to be determined "to answer allegations of contempt of court, to be prepared to hear proof of the alleged contempt and to present any defence they may have". [ 9 ] Assuming that I have jurisdiction to issue such an order, the motion should be dismissed. No appeal has been authorized to date by a judge of this Court. In the circumstances, it follows that there cannot have been any contempt on appeal.

[ 10 ] FOR THESE REASONS , the undersigned: [ 11 ] DISMISSES the petitioner’s motion to suspend execution pending appeal to the Supreme Court of Canada, without costs; and [ 12 ] DISMISSES Petitioner’s motion for leave to appeal and for contempt of court, without costs. JACQUES DUFRESNE, J.A. Francis Mazhero In person Mtre Barry Landy Spiegel, Sohmer inc. Mtre Stéphane Richer Borden Ladner Gervais For the respondents Date of hearing: March, 13, 2013