2011 QCCA 2328, 2011 QCCA 2328

Malobabic-Giancristofaro c. Quebec Bar Association 2011 QCCA 2328 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021972-112 ( 500-17-059790-108 ) MINUTES OF THE HEARING DATE: December 15, 2011 THE HONOURABLE FRANÇOIS DOYON, J.A. PETITIONER ATTORNEY BRANA MALOBABIC-GIANCRISTOFARO In person RESPONDENTS ATTORNEYS QUEBEC BAR ASSOCIATION PROFESSIONAL LIABILITY INSURANCE FUND OF THE QUEBEC BAR HEENAN BLAIKIE S.E.N.C.R.L. STEPHAN H. TRIHEY STEPHEN G. SCHENKE DOUGLAS C. MITCHELL Mtre Mathieu Cardinal BÉLANGER LONGTIN Mtre Marie-Claude Drouin (ABSENT) CAIN LAMARRE CASGRAIN WELLS Mtre Caroline Tremblay GILBERT SIMARD TREMBLAY Mtre François Marchand (ABSENT) DE GRANDPRÉ CHAIT

MIS EN CAUSE ATTORNEY MONROI.INC MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON JULY 29, 2011 BY THE HONOURABLE JOEL A. SILCOFF OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING Continuation of December 13, 2011, hearing. Judgment – See page 3. Annick Nguyen Clerk JUGEMENT [ 1 ] Petitioner is seeking leave to appeal from a judgment rendered on July 29, 2011, by Mr. Justice Joël A.

Silcoff, of the Superior Court, who suspended the proceedings in the present file until such time as final judgment is rendered in file 500-11-029529- 068 (Action # 1). [ 2 ] Petitioner argues that the judgment has no basis in law, is "abusive", causes unreasonable delays, is detrimental to her rights and to the public interest, and was rendered ultra petita . [ 3 ] In my opinion, all these arguments are unfounded.

[ 4 ] In the present file, petitioner, amongst others, claims damages from the respondents for various acts of alleged wrongful professional misconduct. For its part, Action # 1 is an oppression remedy recourse instituted by a corporation (6384366 Canada inc) and Mtre Daniel F. O'Connor against petitioner and two other corporate defendants, of which petitioner is a majority shareholder. These corporate defendants have filed a cross-demand. [ 5 ] There is another file, Action #2, in which petitioner claims damages against various defendants, including 6384366 Canada inc and Mtre O'Connor. On August 14, 2009, Mr.

Justice André Roy, of the Superior Court, suspended the proceedings in Action # 2 until final judgment is rendered in Action # 1 for the following reasons: [11] A careful reading of the ORR Motion (173 paragraphs), the Contestation by Plaintiff (347 paragraphs) and her "Damages recourse" (245 paragraphs) convinces the Court that the factual basis for Plaintiff's damages claim ensues from the facts of the ORR. [12] It is such that the findings of fact by the judge hearing the ORR will necessarily have direct bearing on the claim for damages and will have a determining influence on it's outcome. [16] For obvious reasons of judicial efficiency, the Court is of the opinion that Plaintiff's claim for damages must be stayed until final judgment on the ORR.

Otherwise, it would allow the parties to open a whole new

chapter in this "regrettable judicial saga". [ 6 ] A motion seeking leave to appeal, presented by petitioner, was denied. [ 7 ] In the present file, Justice Silcoff suspended the proceedings for analogous reasons. [ 8 ] Although some of the defendants in the present file are not defendants in Action # 1, it is obvious, as explained by Justice Silcoff, that there is an indisputable connection between both instances as the outcome of one depends largely on that of the other. As well, the proportionality rule dictates that the proceedings be suspended, awaiting for final judgment in Action # 1.

I see no error in the judgment on this question as clearly the findings of fact in Action # 1 will have a direct bearing on the petitioner's claims in the present file. [ 9 ] Consequently, the decision does not cause unreasonable delays and is well founded in law. The judge of first instance used his discretion in a judicial manner and I see no mistake that could justify this Court's intervention. [ 10 ] It is true that, contrary to what Justice Silcoff said in his judgment, petitioner did not herself file a cross-demand in Action # 1.

Nevertheless, the two corporate defendants, which are inextricably linked to petitioner, did file a cross-demand. Consequently, this error has no impact on the conclusions of the judgment. [ 11 ] As to the ultra petita argument, it is also without merit. While all respondents did not ask for a suspension until final judgment in Action # 1, they all asked for a suspension until final judgment, either in Action # 1 or in Action# 2.

As Action # 2 will be judged after Action # 1, Justice Silcoff could decide to grant the motion for suspension partially by suspending the proceedings until final decision in Action # 1, instead of Action # 2, without ruling ultra petita . Moreover, it is a matter of discretionary authority, and the Superior Court may exercise this discretionary authority more freely than in usual matters. [ 12 ] FOR THESE REASONS , I dismiss the motion, without costs. FRANÇOIS DOYON, J.C.A.