2023 QCCA 1559, 2023 QCCA 1559

Azubuike c. La Presse inc. 2023 QCCA 1559 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030671-234 (500-17-117181-217) DATE: DECEMBER 7, 2023 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. GENEVIÈVE COTNAM, J.A. PETER KALICHMAN, J.A. EKENS AZUBUIKE APPELLANT - Plaintiff v. LA PRESSE INC.

VINCENT LAROUCHE RESPONDENTS - Defendants JUDGMENT [ 1 ] The appellant, Ekens Azubuike, appeals from a judgment rendered on July 12, 2023, by the Superior Court, District of Montreal (the Honourable Charles Bienvenu), dismissing his application to be relieved of the default to ready a case for trial, effectively putting an end to the action he had instituted against the respondents. *** [ 2 ] On June 25, 2020, an

article written by the respondent Vincent Larouche and published in La Presse , described the arrest of the appellant on suspicion of theft and fraud and was accompanied by a photograph of him in handcuffs. [ 3 ] The appellant instituted an action against the respondents on June 15, 2021, seeking damages and injunctive relief in connection with the article. [ 4 ] On December 1, 2021, the appellant’s delay to ready the case for trial was extended to February 2022.

However, despite the extension, the appellant failed to set the case down and was thus deemed to have discontinued his application against the respondents. [ 5 ] On March 15, 2023, the appellant brought an application to be relieved of his default pursuant to

article 177 subparagraph 2 of the Code of Civil Procedure ( C.C.P.) , which reads as follows: 177. […] The court may relieve the plaintiff from this sanction if it is satisfied that it was impossible in fact for the latter to act within the time limit. In such an instance, the court modifies the case protocol and sets a new time limit, which cannot be extended except for compelling reasons. 177. […] Le tribunal peut lever la sanction contre le demandeur s’il est convaincu qu’il était en fait dans l’impossibilité d’agir dans le délai imparti.

Dans ce cas, le tribunal modifie le protocole de l’instance et fixe un nouveau délai qui ne pourra être prolongé que si un motif impérieux l’exige. [ 6 ] The appellant alleges that due to compelling medical reasons, it was impossible for him to act within the prescribed time limits. More specifically, he maintains that he has been seriously ill since he initiated the proceedings and has been hospitalized multiple times

for a variety of problems, including “issues of mental and psychological health, PTSD, anxiety, major depression, hallucinations, disconnection from reality, and other conditions including post-traumatic chronic pain…” [1] [ 7 ] The judge dismissed the appellant’s application. Before addressing the grounds raised by the appellant, he made the following observations regarding the sequence of events leading up to the application to be relieved of default: GIVEN that on September 14 th , 2022, the Defendant’s attorneys informed the Plaintiff that his delay to set the case down for trial, pursuant to

article 173 Code of Civil Procedure, expired in February 2022; GIVEN that the Plaintiff did not take immediate action in regard to his presumption of discontinuance; GIVEN that on February 13 th , 2023, the Court mentioned to Plaintiff that he was presumed having discontinued his Application; [References omitted] [ 8 ] The judge then determined that the medical documents filed by the appellant were insufficient to demonstrate an impossibility to act.

He noted that none of the documents contained a formal diagnosis, that no expert report had been filed and that attending psychotherapy sessions did not prove an impossibility to act. The judge added that over and above the appellant’s failure to establish an impossibility to act, the action against the respondents had no chance of success. [ 9 ] On August 14, 2023, the appellant filed a notice of appeal. He maintains that the judge committed two reviewable errors.

First, he argues that by conversing with the attorney for the respondents in French, a language he does not understand, the judge violated his right to a fair hearing protected by s. 7 of the Canadian Charter of Rights and Freedoms .

Second, the appellant maintains that the judge erred in failing to properly consider the extensive documentation that he had filed setting out his serious medical issues. [ 10 ] The respondents brought a motion to dismiss the appeal which they argue has no reasonable chance of success. [ 11 ] For the following reasons, the respondents’ motion will be granted, and the appeal will be dismissed. [ 12 ] The appeal was filed outside the delays. The judgment was rendered during the hearing on July 12, 2023, and, according to

article 360 C.C.P. , the delay to appeal thus ran from then and expired on August 11, 2023. The notice of appeal was only filed on August 14, 2023, and the appellant did not seek permission to extend the delay. This is sufficient to dismiss the appeal. [ 13 ] At any rate, the Court agrees with the respondents that the appeal has no reasonable chance of success. [ 14 ] First, s. 133 of the Constitution Act , 1867 , and s. 7 of Charter of the French Language , guarantee the right to use either English or French in court proceedings.

Accordingly, the appellant’s first ground of appeal is without merit and his right to a fair hearing was not violated. [ 15 ] Second, the appellant fails to identify any palpable and overriding error in the judge’s determination that it was not impossible for him to have acted within the delays. There are indeed many references to medication, psychiatric conditions, and appointments with medical professionals contained in the documents filed by the appellant in support of his application.

However, contrary to what he argues, there is no clear indication that it was impossible for him to have respected the delays to set the case down for trial. There is, therefore, nothing unreasonable in the conclusion drawn by the judge. [ 16 ] Lastly, even if the appellant had identified a reviewable error regarding the impossibility to act, he failed to demonstrate any error in the judge’s determination that his action against the respondents had no chance of success. In this regard, it is important to note that the judge’s discretion on this question merits deference on appeal.

Accordingly, the Court will only intervene where it has been shown that the decision is abusive, unreasonable, or based on erroneous considerations, and the appellant has failed to make such a demonstration. [2] FOR THESE REASONS, THE COURT: [ 17 ] DISMISSES the appeal with judicial costs. MARIE-FRANCE BICH, J.A. GENEVIÈVE COTNAM, J.A. PETER KALICHMAN, J.A. Ekens Azubuike

Unrepresented Mtre Marc-André Nadon PRÉVOST FORTIN D’AOUST Mtre Patrick Bourbeau LA PRESSE For the Respondents Date of hearing: DECEMBER 4, 2023