2019 QCCA 40, 2019 QCCA 40

Nwabue c. McGill University 2019 QCCA 40 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027992-189 (500-17-098123-170, 500-17-100756-173) DATE: January 16, 2019 BEFORE THE HONOURABLE MARIE-FRANCE BICH, J.A. ROGERS NWABUE APPLICANT – Plaintiff v.

McGILL UNIVERSITY McGILL UNIVERSITY as Susan Campbell RESPONDENTS – Defendants JUDGMENT [ 1 ] On January 15, 2019, a clerk of the Court informed the parties, by email, that the petitioner’s following motions, scheduled to be heard on January 17, 2019 are postponed to a later date, per the decision of the undersigned, and that they will be heard together with the petitioner’s Application (Motion) for revocation of the judgments rendered by the Quebec Court of Appeal (file 500-09-027476-183): - Application for leave to appeal from a judgment that terminates proceedings ; - Application to suspend the provisional execution of judgment of the Superior Court rendered December 10, 2018 ; - Emergency motion to cancel provisional execution and to revoke the December 10, 2010 Superior Court judgment, grant safeguard order, charge respondent with contempt of court and bar respondents from participating in the appeal proceedings . [ 2 ] The reasons for this decision are set out below. * * [ 3 ] The undersigned was seized with three motions scheduled to be heard on January 17, 2018.

Two of these motions ( Application for leave to appeal from a judgment that terminates proceedings and Application to suspend the provisional execution of judgment of the Superior Court rendered December 10, 2010 ) were filed in the Court's Registry in Montreal on December 14, 2018 (together with a notice of appeal) and were initially to be presented on January 10, 2019 but finally scheduled for January 17, 2019. [ 4 ] On December 27, 2018, counsel for respondent, explaining that he was unavailable on January 17, 2018 because of a trial before the Superior Court, wrote to the Court in order to ask for the postponement of the hearing of both motions.

He also suggested that said motions be heard by the panel of the Court seized with the petitioner's Application (Motion) for revocation of the judgments rendered by the Quebec Court of Appeal (file 500-09-027476-183), scheduled to be heard on February 11, 2019.

It is to be noted that this latter motion, due to a matter of conflict of interests, was subsequently postponed to March 18, 2019. [1] [ 5 ] On December 28, 2018 and January 8, 2019, the Court's clerk wrote to the petitioner, asking for his comments on the respondent's request for postponement. [ 6 ] On January 11, 2018, the petitioner filed another motion ( Emergency motion to cancel provisional execution and to revoke the December 10, 2010 Superior Court judgment, grant safeguard order, charge respondent with contempt of court and bar respondents from participating in the appeal proceedings ), to be presented on January 14, 2019, then on the 16 th , but finally set pro forma on the docket of January 17, with his two other motions.

Some of the conclusions of this third motion do not appear to be within the purview of a single judge of this Court. [ 7 ] Although the petitioner verbally indicated to the Court’s personnel that he would oppose the postponement requested by the respondent, he wrote to the Court in this regard, by email, on January 15, 2019, confirming that he disagreed with the postponement of his three motions and also disagreed with the postponement of his motion for revocation to March 18, 2019. [ 8 ] In the meantime, respondent's counsel confirmed “that the eviction of Mr.

Nwabue was executed on December, 14, in accordance with the judgment of Justice Morrison, S.C.J.” (email dated January 14, 2019). * *

[ 9 ] Pursuant to art. 378 in fine C.C.P. , after due consideration of the three motions that were scheduled to be heard on January 17, 2019 and the application for revocation presented to the Court, and in light of the interrelations between these motions and their various subject-matters, the undersigned was of the view that all motions should be heard at the same time by the Court itself ( i.e. a panel of three judges). The following question also arises: is the December 10, 2018 judgment rendered by Justice Morrison appealable as of right?

In the circumstances, it is highly preferable, in order to protect the parties' rights, that this question be answered by the Court. * * FOR THESE REASONS, THE UNDERSIGNED [ 10 ] CONFIRMS that the hearing of January 17, 2019 is POSTPONED and that the following motions ARE REFERRED to the Court, to be heard at a later date together with the Application (Motion) for revocation of the judgments rendered by the Quebec Court of Appeal (500-09-027476-183), and by the same panel of judges: - Application for leave to appeal from a judgment that terminates proceedings ; - Application to suspend the provisional execution of judgment of the Superior Court rendered December 10, 2018 ; - Emergency motion to cancel provisional execution and to revoke the December 10, 2010 Superior Court judgment, grant safeguard order, charge respondent with contempt of court and bar respondents from participating in the appeal proceedings .

MARIE-FRANCE BICH, J.A. Mr. Rogers Nwabue In person Mtre Kristian Brabander McCarthy Tetrault For the Respondents