2019 QCCA 654, 2019 QCCA 654

H.E. c. Curateur public du Québec 2019 QCCA 654 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028083-194 (500-14-053769-188) MINUTES OF THE HEARING DATE: April 9, 2019 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER H. E. IN PERSON RESPONDENT COUNSEL CURATEUR PUBLIC DU QUÉBEC Mtre LINDSAY LAMOTHE-LAFRENIÈRE (Le Curateur public du Québec) IMPLEADED PARTY U. G. IN PERSON DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on January 7, 2019 by the Honourable Lukasz Granosik of the Superior Court, District of Montreal Clerk: Alya Elisio Courtroom: RC.18

HEARING 10 : 37 Commencement of the hearing. Identification of the parties. 10 : 39 Submissions by Mrs. H. E.. 10 : 56 Submissions by Mtre Lamothe-Lafranière. 10 : 58 Reply by Mrs. E.. 10 : 59 BY THE JUDGE: judgment will be rendered later today and sent to the parties by email. End of hearing. (s)Alya Elisio Clerk BY THE JUDGE JUDGMENT [ 1 ] H.

E. seeks leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Lukasz Granosik), rendered on January 7, 2019, which granted the Public Curator’s opposition to amend her proceedings and granted, as well, the Public Curator’s motion to dismiss Ms. E.’s original “Motion for Access to Documents”. [ 2 ] The applicant had been declared a vexatious litigant in the Superior Court in 2009. The Chief Justice of that Court authorized the applicant to file a “Motion for Access to Documents” in the Superior Court on May 16, 2018 upon which these proceedings are based.

The applicant initially sought access to certain records kept by the Public Curator pursuant to, inter alia , s. 52, para. 2 of the Public Curator Act , CQLR, c C-81 “in her capacity as liquidator of the succession of F. K.”. [ 3 ] In October 2018, the applicant filed an amendment to the original motion in which she sought to change her capacity to that of heir.

The Public Curator filed a motion in opposition of the amendment as well as an application to dismiss the Motion for Access to Documents. [ 4 ] The motions judge held that the amendment served to create a distinct cause of action from the proceedings which had been authorized by the Chief Justice. Given the applicant’s status as a vexatious litigant, the judge decided that it was not in the interest of justice to allow the amended motion to proceed. [ 5 ] As to the original motion, the judge characterized it as an application in judicial review governed by

article 529 C.C.P . In the judge’s view, the applicant had failed to bring the application for judicial review to the Superior Court within a reasonable time, noting that the time elapsed was ten years. He exercised his discretion to grant the motion to dismiss and dismissed the application for judicial review.

He also wrote that had it not been late, he would have nevertheless dismissed the motion given that in 2005 a judge has ruled that the liquidator was discharged and that, accordingly, the matter in dispute here has become res judiciata . *** [ 6 ] In support of her application for leave to appeal, the applicant points to several alleged errors of fact in the judge’s account of the relevant circumstances.

She also disputes his finding that the amended “Motion for Access to Documents” constituted a new cause of action, noting that, notwithstanding the change, it remained a recourse seeking disclosure of documents by the Public Curator.

She also contends that the judge erred in dismissing the Motion for Access to Documents by deciding the matter on the basis of arguments that were not properly discussed before him. *** [ 7 ] Leave is denied. [ 8 ] The motion judge’s decision to refuse the amendment is best characterized as one of case management, which is not susceptible of appeal unless it appears unreasonable in light of the guiding principles of procedure (art. 32 C.C.P .). It has not been shown to be unreasonable.

In any event, even if it were characterized as a judgment rendered in the course of proceedings that is susceptible of appeal with leave pursuant to

article 31 C.C.P ., I would not grant leave. Whether examined according to the criteria of

article 31 or 32 C.C.P. , in

this case, in light of the pattern of vexatious behaviour, it cannot be said that the judge exercised his discretion to refuse the amendment based on his view as to what was in the interest of justice. [ 9 ] As to the judge’s decision to dismiss the application for judicial review, this matter is susceptible of appeal, with leave, pursuant to

article 30, para. 2

(5) C.C.P . In order to secure leave, the applicant must show that the question raised should be submitted to the Court, in particular in that it involves a question of principle, a new issue or a question of law that divides the jurisprudence. [ 10 ] No such question is raised here. [ 11 ] The judge’s view that an application for judicial review brought ten years after the fact was not brought within “a reasonable time / un délai raisonnable ” as required by

article 529 C.C.P . is uncontroversial and consonant with the prevailing jurisprudence. This was sufficient for the judge to dismiss the application for judicial review and no argument has been raised that would have a reasonable prospect of success on this point on appeal. [ 12 ] More importantly for present purposes, the leave application raises no question that merits the attention of the Court according to the strict criterion set forth in articles 30, paras. 2 and 3 C.C.P . FOR THE FOREGOING REASONS , the undersigned: [ 13 ] DISMISSES the application for leave to appeal, with legal costs. nicholas kasirer , J.A.