2011 QCCA 1774, 2011 QCCA 1774

Droit de la famille — 113005 2011 QCCA 1774 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021822-119 (500-12-245823-996) DATE: SEPTEMBER 28, 2011 PRESIDING : THE HONOURABLE MARIE-FRANCE BICH, J.A. P... N... PETITIONER /Defendant v. S... M... RESPONDENT / Plaintiff JUDGMENT [ 1 ] On May 10, 2011 (reasons transcribed on May 12, 2011), the Superior Court, District of Montreal (the Honourable Mr. Justice André Prévost), rendered the following judgment: POUR CES MOTIFS, LE TRIBUNAL : [49] ACCUEILLE la requête réamendée de la demanderesse; [50] CONDAMNE le défendeur à payer à la demanderesse 258 419,61 $ avec intérêt légal et l'indemnité additionnelle prévue à l'

article 1619 C.c.Q. sur la somme de 223 419,61 $ à compter de la date du présent jugement; [51] ORDONNE l'exécution provisoire partielle du présent jugement nonobstant appel sur une somme de 172 262,51 $. [ 2 ] By letter dated June 8, 2011, the petitioner sought from Chief Justice J. J. Michel Robert, as he then was, the authorization to proceed “with the attached inscription in appeal”, also dated June 8, 2011. On June 16, 2011, Chef Justice Robert granted the petitioner's request in the following terms: Your letter and inscription in appeal were received on June 9, 2011 and brought to my attention.

I hereby authorize you to serve and to deposit, with the clerk of first instance, a duplicate and two copies of an inscription in appeal identical to the attached inscription.

You will also find attached a letter concerning the management of this file. [ 3 ] The petitioner also filed a “Motion of the defendant requesting the suspension of the execution of all orders issues by the Superior Court in its judgment dated May 10 th and May 12 th of 2011 and the restoration of the case to the same state as before the trial that took place on the 22 nd and 23 rd of November 2010 and May 10 th of 2011 (Art. 506 and 550 C.P.C.)”. This motion was first submitted to Chief Justice J. J. Michel Robert, who decided that: Your motion was received and brought to my attention.

I authorize the filing and serving of your procedure but only regarding the conclusion of the request for suspension. Your motion will be heard on August 24 th , 2011 at 9:30 a.m. in room RC-18 . Finally be advised that TAB-2 of your Motion has been sealed in an envelope. (Letter of July 7, 2011 by Chief Justice J.J. Michel Robert; emphasis added.) [ 4 ] The motion was scheduled to be heard on August 24, 2011, but the petitioner requested a postponement of the hearing, invoking medical reasons. This request was contested by the respondent. My colleague Mr.

Justice Morissette then notified the parties that the motion for postponement would be heard on August 24. It also appears from the Court's file that the petitioner, in view of that hearing, requested permission to file a written response to any oral argument made by the respondent's counsel, and that the respondent be ordered to produce, in writing, the grounds for her contestation of his motion for suspension. He also required the issuance of a

subpoena relating to: […] Furthermore, I am respectfully requesting the issuance of a subpoena, by The Court, for the production of the following documents: 1. The original copy of the request made by Duguay LeRoy to the greffes of the Court of Appeal relating to the information allegedly transmitted to Duguay LeRoy by the greffe of The Court (please refer to the attached letter from Duguay LeRoy); 2.

The original copy of the documents allegedly transmitted to Duguay LeRoy by the greffe of the Court of Appeal as alleged in the first paragraph of Duguay LeRoy’s written contestation dated August 15 th of 2011 and received by The Appellant by email on August 16 th of 2011 (please refer to attached letter from Duguay LeRoy); 3.

A copy of the “ treize (13) cahiers de pieces, de procedure, de transcription stenographiques, etc ” allegedly transmitted to Duguay LeRoy by the Appellant since the trial was suspended by the first instance judge on November 24 th of 2010 (please refer to the second (2 nd ) page of the attached letter dated August 15 th of 2011); […] (Letter from the petitioner to Mr. Justice Morissette, August 23, 2011.) [ 5 ] The hearing did not take place, however, and Mr Justice Morissette wrote to the petitioner on August 25: The hearing of your motion had been originally scheduled for August 24.

This hearing was cancelled because arrangements for a video or audio conference could not be made on time. I have therefore peremptorily rescheduled the hearing of your motion to September 19, at which point the respondent will contest your request for a postponement. If on that date you cannot be present, in person or by video/audio conference, or represented by counsel, your request for a postponement may be denied and the member of the Court to whom your motion will have been referred may dismiss it with costs.

As a rule, motions in this and other courts in Quebec are contested orally (article 88 of the Code of Civil Procedure ). Postponing the hearing of your motion until November 2011 (the date suggested by your physicians in the supporting correspondence) would effectively delay by approximately six months the enforcement of conclusion 51 in the judgment rendered on May 12, 2011. Delaying or suspending the effect of such a conclusion can only occur if a proper motion, presented pursuant to

article 550 of the Code of Civil Procedure , is granted by a judge of the Court of Appeal. It is therefore imperative that your motion be heard without delay. The fact that you choose to be self-represented, or that you currently have a health problem, cannot interfere with the normal course of these proceedings. The respondent is as entitled to contest your request for a postponement as you are entitled to make it. One of the clerks of the Court will contact you to make the necessary arrangements in anticipation of September 19 next. (Letter from Mr.

Justice Morissette to the petitioner, August 25, 2011.) [ 6 ] On September 13, 2011, the petitioner sent the undersigned the following letters, by e-mail: First letter sent by email dated September 13, 2011: In light of the private, personal, and confidential letters of my physicians dated April 14 th , and August 11 th of 2011 (sealed by the chief judge of Quebec), and due to the fact that my mental sharpness has not improved to the point that I can adequately represent myself in any stressful, and fast pace situation such as a Court hearing , I do hereby formally request that I be allowed to file a written response to any oral arguments made before your Lordship by Duguay LeRoy within the time frame and under the conditions prescribed by your lordship.

Me LeRoy has in the past filed written pleadings as evidenced by paragraph [6] of the judgment of the Appeal Court of Quebec dated March 13 th of 2009 (C.A. No.: 500-09-018498-089) and presided over by the chief justice. Second letter sent by email also dated September 13, 2011: I am hereby respectfully requesting that a copy of the email sent by Duguay LeRoy to the Court of Appeal relating to the attached Duguay LeRoy letter dated August 15 th of 2011 be forwarded to me by email by the greffe of the Court.

I have not received the grounds that The Respondent intends to invoke in her contestation of my motion dated June 21 st of 2011. To help me prepare an adequate, full, and complete rebuttal, I do hereby respectfully request that The Respondent be ordered to produce, in writing, the grounds for her contestation of the afore mentioned motion, within the time frame and under the conditions prescribed by your lordship .

Furthermore, and in the context of the following order issued by the Honourable Court of Appeal on December 1 st of 2008, I would like to ask your lordship if I need your lordship’s authorization to have a subpoena issued relating to the postponement motion, as well as the motion for suspension dated June 24 th of 2011: [10] DECLARES the respondent P.N. to be a quarrelsome litigant in this Court with respect to the petitioner S.M. and her counsel;

[11] PROHIBITS the respondent P.N. from filing any proceeding of any nature whatsoever with the Court’s Registry against the petitioner S.M. and her counsel in any pending or future files, without having first obtained the authorization of the Chief Justice or a judge the Chief Justice designates; [12] ORDERS the Court’s Registry to refuse to accept any such proceeding from or in the name of the respondent P.N. for production that has not been previously authorized in accordance with the terms of this judgment.

I look forward to your lordship’s urgent answer to this letter. [ 7 ] Here is the written answer to both requests, dated September 15, 2011: Following your letters of September 13, 2011, submitting various requests pertaining to the hearing scheduled before me on September 19, 2011, please be advised that: Pursuant to

article 88 of the Code of Civil Procedure , motions in this Court are contested orally, as my colleague Mr Justice Morissette has already indicated to you in his letter of August 25, 2011. The Court may exceptionally allow a motion to be contested in writing, if necessary. In the present case, considering the nature of the motions scheduled before me on September 19, 2011, there are no grounds justifying that a written contestation of your motions be ordered or allowed, or that a written reply to this contestation be allowed.

Accordingly, your motion for postponement of the hearing of your motion for suspension of the provisional execution of the judgment of the Superior Court will be contested orally. If postponement is granted, the hearing of your motion for suspension will be remanded to another date. If postponement is refused, you motion for suspension will immediately be heard and will be contested orally. Finally, you also asked whether or not you need my authorization for the issuance of a subpoena. The answer is affirmative.

Your letter does not indicate the nature of this subpoena, but I will assume that you request the issuance of the subpoena described in the letter that you addressed to Mr. Justice Morissette on August 23, 2011. Your letter does not explain why the issuance of this subpoena is necessary. The letter addressed to Mr. Justice Morissette contained no explanation either. In the absence of a valid and serious reason for the issuance of such a subpoena, your request is denied.

I am advised that you shall attend the hearing by way of videoconference, on September 19, 2011, at 2:00 p.m., and that all necessary arrangements have been made. * * [ 8 ] At the hearing, the motion for postponement was dismissed and the motion for suspension was then duly heard (see the minutes of the hearing of September 19, 2011). * * [ 9 ] The parties were divorced in 2004, after a three-year marriage, and they have been entangled in an ongoing judicial battle since then.

In September of 2005, the respondent, by way of a “requête en gestion particulière de l'instance, requête en réunion d'actions, requête en cassation de subpoena, requête pour faire déclarer le défendeur quérulent, requête en dommages-intérêts”, sued the petitioner for damages resulting from the petitioner's unreasonable, inappropriate and excessive use of procedure since the divorce judgment.

She amended her claim over the years (from an initial claim of $38,096.07 to a final claim of $328,419.61). [ 10 ] In his judgment, the trial judge detailed what he considered to be the abusive and improper conduct of the petitioner, who has relentlessly filed one judicial proceeding after the other against the respondent since the divorce judgment of March 16, 2004. Pursuant to

article 54.4 C.P.P. , [1] the trial judge concluded that: [21] En somme, le Tribunal n'a aucune hésitation à conclure que l'ensemble des procédures déposées par M.

N... après le jugement de la juge Trahan en 2004 constituaient un abus. [ 11 ] Accordingly, he condemned the petitioner to pay the following damages to the respondent: Compensatory damages corresponding to the extrajudicial fees incurred by the respondent in order to defend herself against the petitioner's abusive proceedings: $173,419.61; Compensatory moral damages: $50,000; Punitive damages: $35,000; Total: $258,419.61. [ 12 ] Reading the judgment, one may well conclude that even if articles 54.1 and ff.

C.C.P. did not exist or did not apply, the conduct of the petitioner, as described, was abusive indeed and would have met the criteria set out in Viel v. Entreprises immobilières du terroir ltée . [2] * * [ 13 ]

Article 547 C.C.P. states that:

547. Il y a lieu à exécution provisoire malgré l'appel dans tous les cas suivants, à moins que, par décision motivée, le tribunal ne suspende cette exécution :

a) du possessoire;

b) de mesures pour assurer la liquidation d'une succession ou de confections d'inventaires;

c) de réparations urgentes;

d) d'expulsion des lieux, lorsqu'il n'y a pas de bail ou que le bail est expiré, résilié ou annulé;

e) de nomination, de destitution ou de remplacement de tuteurs, curateurs ou autres administrateurs du bien d'autrui, ou encore de révocation du mandataire chargé d'exécuter un mandat donné en prévision de l'inaptitude du mandant;

f) de reddition de comptes;

g) de pension ou provision alimentaire, ou de garde d'enfants;

h) de sentences de séquestre; i) (paragraphe abrogé);

j) de jugements rendus en matière d'abus de procédure . 547. Notwithstanding appeal, provisional execution applies in respect of all the following matters unless, by a decision giving reasons, execution is suspended by the court : (

a) possessory actions; (

b) liquidation of a succession, or making an inventory; (

c) urgent repairs; (

d) ejectment, when there is no lease or the lease has expired or has been cancelled or annulled; (

e) appointment, removal or replacement of tutors, curators or other administrators of the property of others, or revocation of the mandate given to a mandatary in anticipation of the mandator's incapacity; (

f) accounting; (

g) alimentary pension or allowance or custody of children; (

h) judgments of sequestration; (i) (subparagraph repealed); (

j) judgments with regard to an improper use of procedure . De plus, le tribunal peut, sur demande, ordonner l'exécution provisoire dans les cas d'urgence exceptionnelle ou pour quelqu'autre raison jugée suffisante notamment lorsque le fait de porter l'affaire en appel risque de causer un préjudice sérieux ou irréparable, pour la totalité ou pour une

partie seulement du jugement. Dans les cas prévus au présent article, le tribunal peut, sur demande, subordonner l'exécution provisoire à la constitution d'une caution. [Emphasis added.] In addition, the court may, upon application, order provisional execution in case of exceptional urgency or for any other reason deemed sufficient in particular where the fact of bringing the case to appeal is likely to cause serious or irreparable injury, for the whole or for part only of a judgment. In the cases provided for in this article, the court may, upon application, make provisional execution conditional upon the furnishing of security. [ 14 ] Pursuant to subparagraph

j) of the first paragraph of

article 547 C.C.P. , provisional execution of a judgment based on the improper use of procedure is automatic. It is prescribed by the law itself. The trial judge does not need to order it and provisional execution applies even if his or her judgment is silent on the matter. Provisional execution is thus the rule, although the trial judge may exceptionally, by a decision giving reasons, order its suspension. [ 15 ] Subparagraph

j) of the first paragraph of

article 547 C.C.P. applies to the judgment appealed from, which relates to the improper use of procedure. [ 16 ] In the present case, while he did not explicitly give reasons for doing so, the trial judge decided to limit the provisional execution to $172,262.51, which approximates the amount of compensatory damages that he granted to the respondent for extrajudicial fees (see para. [11] , supra ). The absence of reasons, per se , does not invalidate this order, and, in any case, only the respondent could have complained of this limitation to her right to the full application of

article 547, first para., subpara. j) , C.C.P. [ 17 ] Are there other reasons to suspend the order for provisional execution? [ 18 ] Pursuant to

article 550 C.C.P. , as interpreted and applied by this Court, the party who seeks the suspension of the provisional execution of a judgment bears the burden of demonstrating that: - there are major and flagrant flaws in the judgment appealed from; - the provisional execution is of such a nature as to cause great or irreparable harm to the party, considering the balance of

inconvenience. [3] [ 19 ] These conditions are exacting, considering the presumption of validity attached to judgments, even in the presence of an appeal, and they are to be applied strictly in cases, such as this one, where provisional execution is dictated by law. [ 20 ] With due respect, none of the grounds of appeal alleged in the petitioner's motion or his inscription in appeal nor the explanations that he gave at the hearing can justify that provisional execution be suspended. [ 21 ] These grounds are either irrelevant to the suspension of the order (for instance, the temporary failure of the audio recording system at trial, on November 22, 2010, whatever its duration, and the failure of the judge to order that detailed written notes be taken to alleviate the effect this malfunction, or the fact that the record of the Barreau du Québec was not filed as evidence) or insufficient, despite the loquacity of the inscription in appeal.

This inscription, indeed, is particularly expansive and its language is certainly forceful but besides the obvious fact that the petitioner disagrees with the manner in which the trial was conducted and with most of the decisions and conclusions of the trial judge, there is still nothing therein that establishes the existence of a major and flagrant error in the judgment.

Arguably, some of the petitioner's grounds of appeal appear to be more serious than others, or less futile (for instance, the matter of the recusation of the judge, the fact that he refused to adjourn the trial on May 10, and the amount of damages).

The questions that are thus raised, however, appear to be highly debatable and it is impossible to conclude at this stage that, in this regard, there are major and apparent flaws in the judgment that would justify the suspension of provisional execution. [ 22 ] On a review of the whole record, a bench of this Court might possibly conclude that the appeal is well-founded, in whole or in part.

At present, however, the arguments raised by the petitioner fall short of the mark for suspending execution. [ 23 ] Furthermore, the petitioner has not demonstrated nor even alleged that he will suffer an irreparable harm if he has to satisfy the Superior Court's judgment as ordered.

Considering the losses incurred by the respondent, according to the Superior Court's judgment, the balance of inconvenience would in any event be in her favour and militate against suspension of the order for provisional execution. [ 24 ] Finally, motions for suspension of an order for provisional execution are urgent matters, that, for obvious reasons, must be pursued diligently and without delay by the petitioner. This has not been the case here. [ 25 ] For these reasons : [ 26 ] The motion for suspension is dismissed , with costs. MARIE-FRANCE BICH, J.A. Mr. P... N...

In person (via visioconference) Mtre Inès Le Roy Dugual Le Roy For the respondent Date of hearing: September 19, 2011