2017 QCCA 1233, 2017 QCCA 1233

E.E. c. S.S. 2017 QCCA 1233 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026924-175 (505-14-010547-171) MINUTES OF THE HEARING DATE: August 11, 2017 CORAM: THE HONOURABLE ROBERT M. MAINVILLE , J.A. MARIE-JOSÉE HOGUE , J.A. PATRICK HEALY , J.A. APPLICANT COUNSEL E. E. Mtre JUDAH L. WOLOFSKY (Wolofsky et associé

s) RESPONDENT COUNSEL S. S. Mtre MIRIAM MORISSETTE (Joli-Coeur Lacasse S.E.N.C.R.

L) IMPLEADED PARTIES COUNSEL G. P. Mtre STEPHEN ASHKENAZY ( Hamilton Cooper Ashkenazy) D. P.

On appeal from a judgment rendered on June 15, 2017 by the Honourable Sophie Picard of the Superior Court, District of Longueuil. DESCRIPTION : Application for Permission to File Notice of Appeal Together With Application For Leave to appeal After the Time Limit. (Art. 363 and 357 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: Pierre-Basile-Mignault HEARING 10:14 Beginning of the hearing. No representative of the Public Curator is present. Submissions by Mtre Wolofsky. 10:44 Submissions by Mtre Ashkenazy.

Mtre Ashkenazy supports the Application by Mtre Wolofsky for Permission to File Notice of Appeal Together With Application For Leave to appeal After the Time Limit. 10:45 Submissions by Mtre Morissette. 11:07 Recess. 11:28 Resumption of the hearing. Rebuttal by Mtre Wolofsky. 11:32 Exchanges between the Court and the Parties. 11:34 Recess. 11:36 Resumption of the hearing. BY THE COURT : Unanimous judgment read out by the Honourable Robert M. Mainville, J.A. – See page 3. 11:37 Exchanges between the Court and the Parties pertaining to the appeal management. 11:40 End of the hearing.

Mihary Andrianaivo Clerk BY THE COURT JUDGMENT [ 1 ] The appellant is an 88-year-old widow living alone in an apartment located in a residence for independent seniors. She is seeking leave to appeal a judgment of June 15, 2017 of the Superior Court, District of Montreal dismissing a motion brought on her behalf to be represented by Me Judah L. Wolofsky. [ 2 ] The underlying proceedings were initiated on February 10, 2017 by the appellant’s granddaughter, S. S., who is seeking protective supervision of the appellant’s person and property. These proceedings are strongly challenged by the appellant’s son, G.

P., while they are supported by the appellant’s daughter, D. P.. Protracted litigation has ensued respecting the choice of medical experts and the interim management of the appellant’s financial affairs. [ 3 ] In the course of the underlying proceedings and sometime after March 15, 2017, Me Catherine Thiffault started to act as the appellant’s attorney. The record shows that the choice of Me Thiffault resulted from discussions between the attorneys involved in the

proceedings following a suggestion by the case management judge. The appellant was not consulted on this matter. [ 4 ] In an affidavit sworn on May 31, 2017, the appellant states that she has never talked to Me Thiffault except to inform her she did not wish that she act on her behalf. She adds that she retained the services of Me Wolofsky on May 28, 2017 and wishes to be represented by him. [ 5 ] Me Wolofsky attempted to represent the appellant, but his mandate was challenged by Me Thiffault. A formal application for substitution of attorney ensued.

At the case management hearing called to decide the matter, the appellant stated that she wished to be represented by Me Wolofsky. The application was nevertheless dismissed on June 15, 2017 by the case management judge, who also terminated Me Thiffault’s mandate and required the Public Curator to appoint an attorney for the appellant. [ 6 ] The appellant now seeks to appeal that judgment and has provided written instructions for this purpose to Me Wolofsky, as set out in her affidavit of July 11, 2017.

Me Wolofsky attempted to file an application for leave to appeal within the 30-day timeframe, but was refused filing for various technical reasons. An application for leave to appeal outside the time limits was filed shortly thereafter. [ 7 ] Me Wolofsky asserts that he has met and talked with the appellant and has agreed to represent her. He adds that he has no conflict of interest in this matter, that he has not and does not represent any other party to these proceedings, and that there are no reasons impeding him from representing the appellant.

He adds that the appellant has a fundamental right to the lawyer of her choice, a right which cannot be curtailed except in the most extraordinary circumstances. [ 8 ] Counsel for S. S. opposes the motion for leave. She submits that the appellant is mentally unfit to appoint herself a lawyer and that it would be in her best interest to have the Curateur public choose one for her. On the contrary, counsel for G. P. supports the motion for leave to appeal, indicating that he heard the appellant state before the judge that she wished to be represented by Me Wolofsky.

He can conceive of no good reason why the appellant should not be allowed to be represented by the lawyer of her choice. [ 9 ] Whether the appellant was improperly denied the right to be represented by the lawyer of her choice is a matter of principle which should be submitted to the Court. To be deprived of one’s lawyer of choice in a proceeding causes irremediable injury. Consequently, leave to appeal the judgment of June 15, 2017 shall be granted on this issue only .

All other orders under that judgment shall not be appealed and shall remain undisturbed. [ 10 ] The suspension of the underlying proceedings in the Superior Court while the appeal process unfolds is clearly not in the best interests of the appellant or the other parties. An issue thus arises concerning the interim legal representation of the appellant pending final determination of the appeal (the “interim period”).

We see little disadvantage to have Me Wolofsky represent the appellant during the interim period. [ 11 ] Indeed, the evidence before us supports the proposition that the appellant wishes to be represented by Me Wolofsky. The choice of counsel is a fundamental right which should be respected unless there are compelling reasons to the contrary.

Though the appellant has disabilities, the medical evidence before us at this time does not indicate that she is incapable of choosing a lawyer with whom she is comfortable with so as to better make her point of view known and to protect her rights in the underlying proceedings. The report of Dr.

Gabriel Leonard, a neuropsychologist, dated June 14, 2017, concludes that though the appellant is not able to manage her property, she is nevertheless “able to care for herself in many areas” and “should be consulted and involved in decision-making regarding […] all day-to- day decision.” [ 12 ] Though these conclusions of Dr.

Leonard may be subject to review and challenge in the underlying proceedings before the Superior Court and may need to be qualified or even discarded once all the medical evidence is submitted, they nevertheless form a sufficient basis to support the appellant’s sworn assertion that she finds Me Wolofsky to be very understanding and wishes to be represented by him. [ 13 ] The underlying proceedings are important to the appellant. The record shows that she wishes to remain in her current living conditions and not be committed elsewhere. These are understandable and very serious concerns.

Since the appellant wishes to be represented by a lawyer of her choice to make her point rather than by one chosen by a government body at her expense, and absent evidence to the contrary, we fail to understand how it would be improper or inappropriate for Me Wolofsky to continue to act on her behalf during the interim period. [ 14 ] Moreover, Me Wolofsky is bound by his professional code to represent the appellant’s best interests.

There is no evidence, at this time, which would lead us to believe that Me Wolofsky would not have these interests at heart during the interim period. [ 15 ] To avoid any uncertainty, we confirm that the underlying proceedings before the Superior Court are to continue during the appeal process. We further encourage the parties and their lawyers to seek a speedy resolution of the underlying proceedings.

FOR THESE REASONS, THE COURT: [ 16 ] GRANTS in part the application for leave after the time limit; [ 17 ] AUTHORIZES the appellant to appeal only the three following conclusions of the June 15, 2017, judgment: REJETTE la demande de substitution de procureur visant à ce que Me Wolofsky remplace Me Thiffault comme avocat de Mme E.; […] NOMME le Curateur public afin qu’il désigne un avocat anglophone qui devra représenter Mme E. dans le présent dossier; […]

DÉCLARE que les honoraires de Me Wolofsky (s’élevant au plus, à 1500 $ selon ce qu’il déclare à la Cour) devront être payés pour moitié par Monsieur P. et pour moitié à même le compte bancaire de Mme E. […] [ 18 ] SUSPENDS , for greater certainty, the execution of these three conclusions of the June 15, 2017 judgment until a final judgment of the Court on the appeal; [ 19 ] ORDERS that the underlying proceedings continue before the Superior Court; [ 20 ] ORDERS that the appellant’s application for leave to appeal be deemed a notice of appeal; [ 21 ] ORDERS that the appeal be set for hearing on December 8, 2017 , in courtroom Pierre-Basile-Mignault at 9h30 am (or as soon thereafter as possible) for a total duration of 55 minutes (20 minutes for the appellant, 20 minutes for the respondent and 15 minutes for G.

P.). [ 22 ] ORDERS the appellant to serve and file before September 1, 2017 , a memorandum compliant with sections 53 to 55 of Civil Practice Regulation (Court of Appeal) and containing an argument not exceeding ten (10) pages , to which shall be attached all documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, exhibits, excerpts from depositions, etc.); [ 23 ] ORDERS the other parties to serve and file before October 31, 2017 , a memorandum compliant with sections 53 to 55 of Civil Practice Regulation (Court of Appeal) and containing an argument not exceeding ten (10) pages to which shall be attached all documents necessary for the adjudication of the appeal which are not included in the appellant's memorandum. [ 24 ] DIRECTS the parties’ attention to

section 376 C.C.P . and

article 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 25 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities. Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches. The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted; [ 26 ] THE WHOLE , legal costs to follow. ROBERT M. MAINVILLE, J.A.

MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A.