2015 QCCA 388, 2015 QCCA 388

D.B. c. M.B. 2015 QCCA 388 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024457-145 (500-14-040437-121) MINUTES OF THE HEARING DATE: February 25, 2015 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE , J.A. MARIE ST-PIERRE , J.A. DENIS JACQUES , J.A. (ad hoc) APPELLANT D. B. IN PERSON RESPONDENT COUNSEL M. B. Mtre GEETA NARANG (Narang & associés, s.e.n.c.) IMPLEADED PARTIES COUNSEL PUBLIC CURATOR OF QUEBEC, acting in its capacity as curator to the property of Mr. J. B. J. B. Mtre françois dupin (Filion & associé

s) In appeal from a judgment rendered on April 24, 2014 by the Honourable Justice Danielle Mayrand of the Superior Court, District of Montreal DESCRIPTION : Motion of the Public Curator of Quebec to dismiss the appeal or to strike allegations (Article 501 (1), (2), (4), (4.1) and

(5) C.C.P.) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 9:30 Continuation of the hearing held on February 23, 2015 9:30 Judgment – see page 3. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] On April 9, 10 and 11, the Superior Court, district of Montreal (the Honourable Danielle Mayrand J.), heard the respondent’s motion to remove the appellant as curator to the person and to the property of J. B., the parties’ father.

On April 11, the Court ordered the parties to abide by certain terms of settlement in two separate agreements (the “Agreements”) which the parties acknowledged as valid and enforceable. Further, on April 24, the Court ruled in writing on the respondent’s motion. It declined to remove the appellant as curator to the person of Mr. B., but it replaced her as curator to his property by appointing in that capacity the Curateur public du Québec (the “Curateur”), an impleaded party in the Superior Court. [ 2 ] The appellant filed two appeals.

The first (n° 500-09-024429-144), against the order of April 11, alleged bias on the part of the trial judge and raised various grounds of nullity against the Agreements. The second (n° 500-09-024457-145) sought the reversal of the judgment of April 24 appointing the Curateur as curator to the property of Mr. B.. The Curateur subsequently brought forth two motions, one to have the first appeal dismissed outright and the other to have the second appeal dismissed or, alternatively, to strike from the inscription all passages pertaining to the alleged nullity of the Agreements.

On September 8, 2014, in two separate judgments, the Court granted the first motion and held that the appeal against the order of April 11 had no reasonable chance of success. It also granted the alternative conclusions of the second motion and ordered the appellant to file an amended inscription, purged of all references to the

alleged nullity of the Agreements. [ 3 ] The appellant filed an amended inscription on November 28 and her factum on December 1, 2014. In the meantime, since the judgment of April 24, she had revoked the mandates of two of her lawyers and had decided, apparently, to proceed without the assistance of counsel. [ 4 ] On January 16, the Curateur filed a new motion to dismiss in file n° 500-09-024457-145. The crux of the matter is set out in the following paragraphs of this motion : 10.

Pour résumer, sur les cinq questions identifiées dans l’argumentaire de l’appelante comme motif d’appel, la première cible la conduite générale du juge de première instance, la seconde et la troisième apprécient la preuve versée à l’audition, et les deux dernières attaquent les transactions intervenues; 11.

Qu’à l’appui de l’argument sur la conduite générale de la juge de première instance à l’égard de l’appelante, seulement trois (3) pages de notes sténographiques ont été déposée pour les deux jours et demi d’enquête, et qu’au surplus, l’appelante a aussi déposé une requête pour désaveu de son procureur d’alors, postérieurement de plusieurs mois auxdites inscriptions en appel, cette fois reprochant à son procureur sa conduite, tel qu’il appert de la requête en désaveu déposée sous la cote R-8 ; 12. Le mémoire déposé par la

partie appelante est un moyen détourné par lequel cette dernière essaie de faire revivre l’inscription en appel pourtant rejetée sur les ententes auxquelles elle avait pourtant consenti avec les conseils de son avocat en première instance[.] Exhibit R-8 is a lengthy “re-amended introductory motion in proceedings in disavowal” which in its initial version was served at the end of September 2014. [ 5 ] The above-quoted passage from the motion of January 16 describes accurately the grounds of appeal pressed by the appellant in her factum. [ 6 ] Appearing in person to contest the motion to dismiss, the appellant raised four arguments. [ 7 ] First, she argued that the Curateur had deliberately scheduled other motions in the Superior Court for February 23, motions on which the parties were heard in the morning.

According to her, she could not be expected to proceed on the same day and in the afternoon in the Court of Appeal. She therefore asked for a postponement, a request first made in a formal motion served on the Curateur on February 18, and which was contested by him. The appellant chooses to represent herself, which she of course has a right to do, but that does not entitle her to advantages not available to other parties or to counsel representing them.

The Curateur’s motion to dismiss (which is succinct and runs to a mere three pages) as well as the supporting notice of presentation were validly served, the Appellant had the required thirty days to prepare, she attended the hearing in the Court of Appeal and there was no reason not to proceed in the afternoon of February 23. This ground fails and the request for a postponement is therefore denied. [ 8 ] Second, the appellant reiterated that the trial judge conducted the hearing in such a manner as to give rise to a reasonable apprehension of bias.

The fact that the trial judge declined to remove the appellant as the curator to the person of her father belies this assertion. But, in any event, with the record as it now stands, there is a paucity of evidence to make any finding of bias. Only three pages of the transcript are offered in support of this serious allegation, page 311 of the transcript of April 9 and pages 75 and 76 of the transcript of April 11. It is therefore impossible to address this ground properly as there is no factual foundation at all to support the appellant’s contention.

It was the appellant’s responsibility to present an adequate record of the proceedings in her appendices (see Pateras c. M.B. [1] ) and she failed to do so. [ 9 ] Third, the appellant asserts that, all along, the Curateur made every effort to prevent a hearing on the merits of her claims. That is not what the record shows. The Curateur moved to have one of her appeals dismissed, and it was indeed dismissed, in a judgment of September 8, 2014, which is now res judicata .

The Curateur also moved to have the other appeal dismissed or, alternatively, that it be kept within the bounds which the Court would consider appropriate in light of its other judgment of September 8. The Court allowed to appeal to proceed but ordered the production of an amended inscription. Clearly, the appellant cannot revive in her factum grounds which the Court treated as devoid of merit in its judgment of September 8.

If these grounds relate to issues concerning the manner in which the appellant was represented in the Superior Court, the proper forum and the proper proceedings to debate the matter are the Superior Court and proceedings in disavowal, not an appeal based on a record containing no evidence capable of supporting this novel allegation. Furthermore, no party ever has an absolute right to “a hearing on the merits”. The appellant was heard at some length in the Superior Court. She could appeal as of right, which she chose to do, but the respondent and the impleaded parties were entitled to avail themselves of

article 501 C.c.p. The Curateur did so and cannot be faulted for this reason. This ground also fails. [ 10 ] Fourth, relying on C.C. c . M.C . [2] , the appellant argues that, in his capacity as curator to property, the Curateur cannot not represent Mr. B.. This proposition rests on a misunderstanding of what was held in that case. In C.C. c . M.C ., the curator to the property of a person of full age incapable of giving his consent was one of his daughters; a second daughter was his curator to the person.

The first daughter began an action against her brother, claiming on behalf of her father that the brother had failed to reimburse a substantial loan owed to the father. Reversing the trial judgement, the Court stated on appeal that only the curator to the person could validly represent the father in an action of this kind; the Superior Court should therefore have granted the motion to dismiss. In the present case, there is nothing of the sort. The Curateur is not representing Mr. B.. He is acting in his own right, as an impleaded party who was appointed curator to the property of Mr.

B. by the Superior Court, and who takes the view that his status is now being challenged by an appeal which is groundless, dilatory and costly, and ought to be dismissed pursuant to

article 501 C.c.p. [ 11 ] In

summary, the appellant’s arguments fail on all counts and the motion must therefore be granted. [ 12 ] FOR THESE REASONS , the Court: [ 13 ] GRANTS the motion to dismiss with costs;

[ 14 ] DISMISSES the appeal, with costs. YVES-MARIE MORISSETTE, J.A. MARIE ST-PIERRE, J.A. DENIS JACQUES, J.A. (ad hoc)