r v. COMMISSION, 2015 QCCA 429

Nussenbaum c. Commission des droits de la personne et des droits de la jeunesse 2015 QCCA 429 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025028-150 (500-17-085757-147) DATE: March 6, 2015 THE HONOURABLE MARK SCHRAGER, J.A. REBECCA NUSSENBAUM PETITIONER - petitioner v. COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE RESPONDENT – impleaded party and TRIBUNAL DES DROITS DE LA PERSONNE RESPONDENT - respondent JUDGMENT [ 1 ] Petitioner seeks leave to appeal a judgment of the Superior Court, District of Montreal (the Honourable Joel A.

Silcoff), delivered orally on January 8, 2015, dismissing Petitioner’s motion in evocation of a judgment of the Tribunal des droits de la Personne (“Tribunal”). [1] [ 2 ] Respondent (Commission des droits de la personne et des droits de la jeunesse) instituted proceedings before the Tribunal in connection with gifts made to Petitioner by her elderly mother and the recovery of monies allegedly misappropriated by Petitioner. [ 3 ] By interlocutory judgment of March 12, 2014, [2] the Tribunal dismissed Petitioner’s motion to dismiss based on the grounds that the Commission had not as yet filed its factum, took cognizance of the filing of the Commission’s factum and ordered Petitioner to file her factum within 30 days.

Petitioner’s motion in revocation of that decision was dismissed by the Tribunal on November 11, 2014. [ 4 ] Petitioner sought the evocation of those decisions before the Superior Court and the Commission moved for the dismissal of the motion in evocation. [ 5 ] Justice Silcoff granted the Commission’s motion to dismiss and dismissed Petitioner’s motion in evocation. Justice Silcoff found that not only were Petitioner’s proceedings without merit but that her proceedings were “dilatory, vexatious and brought in bad faith” referring to

Article 54.1 C.C.P . [ 6 ] In seeking leave to appeal from the judgment of Justice Silcoff, Petitioner formulates an argument that the Tribunal had lost jurisdiction because the Commission did not file its factum within the 15 days provided by

Article 115 of the Quebec Charter of Human Rights and Freedoms [3] (“ Charter ”) and thus, lost jurisdiction over the matter. In fact, the factum was filed a few days late and had been on file for almost a month when Petitioner moved for the dismissal of the Respondent’s complaint. [ 7 ]

Article 115 of the Charter provides as follows: 115. Within 15 days of the filing of an application other than an application referred to in the second paragraph of

section 104, the plaintiff shall file a factum setting out his pretensions, which the Tribunal shall serve on every interested person or organization. Within 30 days of the service, every interested person or organization wishing to do so may file a factum of his or its own, which the Tribunal shall serve on the plaintiff. 115 . Dans les 15 jours de la production d'une demande qui n'est pas visée au deuxième alinéa de l'article 104, le demandeur doit produire un mémoire exposant ses prétentions, que le Tribunal signifie aux intéressés.

Chacun de ceux-ci peut, dans les 30 jours de cette signification, produire son propre mémoire que le Tribunal signifie au demandeur. [ 8 ] Despite Petitioner’s submissions, there is nothing to suggest that the delay in

Article 115 of the Charter is mandatory. This was

[ 8 ] Despite Petitioner’s submissions, there is nothing to suggest that the delay in

Article 115 of the Charter is mandatory. This was duly considered by the Tribunal: [4] CONSIDÉRANT les enseignements de la Cour d’appel, dans l’affaire Global Credit v. Rolland [2011] QCCA 2278, qui établit que le délai de déchéance doit être expressément prévu à la législation; The Tribunal’s rules of practice allow for the extension of delays [4] and seeing that the Commission’s factum had been filed and that Petitioner suffered no prejudice, the Tribunal in effect extended the delay.

Nevertheless, Petitioner argues that once that the delay of 15 days expired, the Tribunal lost jurisdiction over the matter including the jurisdiction to extend the delay under its own rules of practice. [ 9 ] Justice Silcoff was having none of it.

In addition to characterizing her proceedings as quoted above, he underlined that Petitioner had still not filed her factum in the proceedings before the Tribunal as at the date of the hearing before him and this, despite an additional peremptory order of the Tribunal of November 11, 2014. [ 10 ] Leave to appeal a motion in evocation is governed by the second paragraph of

Article 26 C.C.P. which provides that leave may be granted: (…) when the matter at issue is one which ought to be submitted to the Court of Appeal, particularly where, in the opinion of the judge, the matter at issue is a question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents. (…) [...] lorsque la question en jeu en est une qui devrait être soumise à la Cour d'appel, ce qui est notamment le cas s'il est d'avis qu'une question de principe, une question nouvelle ou une question de droit faisant l'objet d'une jurisprudence contradictoire est en jeu: [...] [ 11 ] There is no such question arising here as can be gleaned from the foregoing narrative and particularly the remarks of Justice Silcoff.

There is no jurisdictional issue nor any other legal issue which ought to be submitted to the Court of Appeal. Petitioner is manipulating procedural rules to frustrate the resolution of the proceedings before the Tribunal. This does not give rise to judicial review nor to an appeal of a judgment dismissing her motion for judicial review. [ 12 ] FOR THESE REASONS, THE UNDERSIGNED: [ 13 ] DISMISSES the motion for leave to appeal, with costs. MARK SCHRAGER, J.A. Rebecca Nussenbaum Personally Mtre Michèle Turenne For Commission des droits de la personne et des droits de la jeunesse Date of hearing: March 5, 2015