2020 QCCA 875, 2020 QCCA 875

Succession de Sofaer c. Benchimol 2020 QCCA 875 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028929-206 ( 500-17-079932-136 ) MINUTES OF HEARING DATE: July 7, 2020 THE HONOURABLE MARK SCHRAGER, J.A.

IN THE MATTER OF THE ESTATE OF JACK SOFAER APPLICANT COUNSEL The estate of Jack Sofaer Mtre Robert Pancer ( Phillips Friedman Kotler ) RESPONDENT COUNSEL Nicole Benchimol Mtre FRANÇOIS MARCHAND ( De Grandpré Chait ) IMPLEADED PARTIES COUNSEL RHONDA SOFAER Mtre BRAHM CAMPBELL ( Campbell Cohen ) ALBERT MASHAAL TINA VITARO ALLAN WIENER JEFFREY SCHRIER Mtre FRANÇOIS MARCHAND ( De Grandpré Chait ) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on February 24, 2020 by the Honourable Benoît Emery of the Superior Court , District of Montreal (Art. 31 and 351 ss C.C.P. ).

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18

HEARING 10:55 Commencement of the hearing. Identification of counsel. Preliminary comments. 10:58 Submissions by Mtre Pancer. 10:19 Submissions by Mtre Campbell. 11:25 Remarks of Mtre Pancer. 11:28 Submissions by Mtre Marchand. 11:40 Reply by Mtre Pancer. 11:43 BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The Applicant seeks leave to appeal the judgment rendered on February 24, 2020 by the Superior Court, District of Montreal (the Honourable Benoit Emery), dismissing the Applicant’s motion for permission to file an expert report after expiry of delays and condemning the Applicant to pay the Respondent’s fees of $1,000. [ 2 ] The Applicant is the Plaintiff in first instance seeking to recover from the Respondent allegedly excessive fees that the latter was paid by the estate of the Applicant’s late father of which she is an heir and liquidator. [ 3 ] For the reasons which follow, I do not believe that this is an appropriate matter for the granting of leave. [ 4 ] By way of background, the case has been pending since 2013.

At a pre-trial conference, Associate Chief Justice Eva Petras granted leave to the Applicant to file expert reports, albeit that none were indicated in the joint declaration. The reports included an accounting expertise (not now in issue) and a legal expertise of Mtre Tingley, the whole under reserve of the Respondent’s right to seek the dismissal of such reports once filed.

In fact, the Applicant filed two legal expert reports – one by Mtre Tingley and the other by Mtre Paul Marchand and indeed, the Respondent successfully sought the dismissal of these reports. [ 5 ] In a judgment of June 25, 2019, Courchesne, J.S.C., took notice of the Applicant’s acknowledgment that the Tingley report should be dismissed. The judge then went on to conclude that the Marchand report (of 1 1/2 pages) should also be dismissed: [35] The Marchand report is very laconic and does not contain the fundamental elements of an expert report.

More importantly, it refers to concepts that are not beyond the scope of the general knowledge and experience of the court. [36] This report is not necessary to resolve the dispute nor to enlighten the court on the applicable principles of law and best practices for the determination of the fairness and reasonableness of the fees charged by Benchimol. [ 6 ] Leave to appeal the Courchesne judgment was dismissed by my colleague Hogue, J.A., on September 20, 2019. [ 7 ] Before Emery, J.S.C., the Applicant sought leave to produce a new and expanded report of Mtre Marchand.

While still lacking much by way of specifics, the report purports to describe the lack of best practices by the Respondent and the alleged excessive billing in providing legal services to the estate. However, there is no detailed analysis of the specific services rendered nor any attempt to analyze how the amounts billed were not fair or reasonable. [ 8 ] In denying leave, Emery, J.S.C., referred to the criteria enunciated by this Court in Mode Striva , [1] which are to be considered in an application for the late filing of an expert report.

He then observed that the new report elicits general principles which would be unhelpful to the judge determining the facts which might underpin any liability of the Respondent in the case: (…) [i]l n’y a aucune explication valable portant sur les faits et gestes de l’avocat à l’origine du rapport ou la conduite de l’affaire par cet avocat.

He concluded that the Applicant suffers no prejudice by the denial of permission to file the report. The judge then focused on the effect of the late filing on the administration of justice concluding that the extensive delays in the matter would only continue if he was to allow the report to be filed. [ 9 ] Despite the Applicant’s assertion that the judge put too much emphasis on procedure over substance, I discern no error in the judge’s reasoning particularly on the aspect of prejudice. The judgment is a reasonable exercise of discretion.

Whether I apply Articles 31 and 32 C.C.P. , leave to appeal should not be granted. Moreover, the interest of justice, required to be considered pursuant to

Article 18 C.C.P. does not favour the granting of leave. [ 10 ] Petras, A.C.J., granted permission to file an expertise after delays had expired. For good reasons, Courchesne, J.S.C., dismissed the report which the Applicant filed. It appears to me to be inconsistent with the notion of an effective and proper administration of justice to then entertain the Applicant’s second effort to file an expertise which Courchesne found inadequate and inadmissible and in respect of which a judge of this Court refused to grant leave to appeal.

FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 11 ] DISMISSES the Application for leave to appeal from a judgment rendered in the course of a proceeding with legal costs. MARK SCHRAGER, J.A.