2018 QCCA 140, 2018 QCCA 140

Heafey c. Dormani 2018 QCCA 140 COURT OF APPEAL CANADA PROVINCE OF QUEBEC GREFFE OF MONTREAL N o : 500-09-026665-174 (550-17-004207-088) MINUTES OF HEARING DATE: January 26, 2018 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE , J.A. MARK SCHRAGER , J.A. MARIE-JOSÉE HOGUE , J.A. APPELLANTS COUNSEL PIERRE HEAFEY SAMIR CHOWIERI 6963251 CANADA INC. Mtre CHARLES DAVIAULT Mtre SAMUEL MAHEU-SAVARD (Gowling WLG (Canada) S.E.N.C.R.L., s.r.l.) RESPONDENTS COUNSEL NADER A. DORMANI MEHDI (MICHAEL) RAZI PARSCOM ENTERPRISES INC. Mtre PIERRE McMARTIN (Beaudry Bertrand, s.e.n.c.r.l.) Mtre CHRISTIAN DUPUIS (avocat-conseil) IMPLEADED PARTIES COUNSEL

RHÉAL DALLAIRE Mtre CHLOÉ LÉPINE (Renno Vathilakis inc.) NOUBAR BOYADJIAN LITWIN BOYADJIAN INC. Mtre JEAN-PIERRE BALDASSARE (Bélanger Sauvé, s.e.n.c.r.l.) On appeal from a judgment rendered on January 20, 2017 by the Honourable Madam Justice Carole Therrien of the Superior Court, District of Gatineau. Motion for permission to adduce new evidence (article 380 C.C.P .) DESCRIPTION: Judgment rendered in the course of a proceeding – Civil Procedure - Lawyer – Disqualification. Clerk: Robert Osadchuck Courtroom: Antonio-Lamer HEARING 9:32 Commencement of the hearing.

On the Motion for permission to adduce new evidence: 9:32 Submissions by Mtre Daviault. 9:43 Recess. 9:49 Resumption of the hearing. 9:49 By the Court: judgment – see page 4. 9 h 49 Submissions by Mtre Daviault. 10:26 Submissions by Mtre McMartin. 10:47 Submissions by Mtre Lépine. 10:56 Reply by Mtre Daviault 11:01 Submissions by Mtre Baldassare.

11:04 By the Court: The appeal is taken under advisement. Robert Osadchuck Clerk BY THE COURT JUDGMENT On the Motion for permission to adduce new evidence: [ 1 ] Appellants move for the production of new evidence consisting of the consent and renunciation to any privilege or conflict of interest by their former clients, Ginsberg Gingras & Associés inc. and Chantal Gingras. [ 2 ] In the document filed in support of the motion representing the new evidence, nowhere is there even a hint of explanation by Mme Gingras as to why this consent and renunciation was not made prior to the hearing in first instance.

Given the circumstances, it is not presumptuous to think that the first order of business, when faced with a motion seeking disqualification of one’s attorney, would be to seek consent of the former client. As such, we do not consider the evidence new. Rather, it appears as an effort to retry the case in first instance with evidence that could have been introduced but was not. [ 3 ] Moreover, given that the former client acted as the mandatary of the trustee, the renunciation of the latter would be required.

The judgment in first instance states that the trustee supported the disqualification of M tre Viau and his law firm. As such, the evidence is not useful to the debate. [ 4 ] Accordingly, in view of the foregoing, the requirements of

Article 380 C.C.P. have not been met. FOR THESE REASONS, THE COURT: [ 5 ] DISMISSES the motion to adduce new evidence with legal costs. GENEVIÈVE MARCOTTE, J .A. MARK SCHRAGER, J .A . MARIE-JOSÉE HOGUE, J .A.