2020 QCCA 50, 2020 QCCA 50

Malobabic c. O'Connor 2020 QCCA 50 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028739-191 ; 500-09-028773-208 (500-11-029529-068) DATE: JANUARY 15, 2020 BEFORE THE HONOURABLE STÉPHANE SANSFAÇON, J.A. No: 500-09-028739-191 ZELJKA MALOBABIC APPLICANT – Opposing Third Party v. DANIEL F. O’CONNOR RESPONDENT – Plaintiff and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded Party No: 500-09-028773-208 BRANA MALOBABIC APPLICANT – Opposing Third-Parties v. DANIEL F.

O’CONNOR RESPONDENT – Plaintiff and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded Party JUDGMENT [ 1 ] The applicants seek leave to appeal the judgments rendered on November 14, 2019 [1] (as regards Ms. Zeljka Malobabic) and December 11, 2019 [2] (as regards Ms. Brana Malobabic) by the Honourable Mr. Justice Michel A.

Pinsonnault of the Superior Court that dismissed their application for recusation following the latter’s appointment by the Chief Justice as the judge in charge of managing and adjudicating the disputes liable to arise upon the execution of the judgment he rendered on September 21, 2018. [3] The aforementioned judgment, rendered after a 39-day trial, allowed the originating application in oppression, declared the conduct of Brana Malobabic to be fraudulent, ordered Brana Malobabic as well as certain other defendants to pay respondent Daniel F.

O’Connor $350,000, plus interest, and further found their conduct during the proceedings to be an abuse of procedure. That judgment was appealed and this Court dismissed the appeal on January 21, 2019, [4] because it had no chance of success. The Supreme Court of Canada subsequently denied leave to appeal. [ 2 ] The grounds raised by the applicants in support of their applications for leave to appeal are that Pinsonnault, J. erred by refusing to recuse himself from all procedures for the execution of his judgment dated September 21, 2018.

His palpable and overriding errors, as alleged in the application for leave to appeal, are summarized as being bias in favour of the respondent and a lack of impartiality with respect to the applicants, which errors are broken down or detailed as follows: (

a) the judge did not give them a fair hearing; (

b) the judge intentionally used a propaganda and “ big-lie ” tactic when drafting his reasons, for the sole purpose of discrediting the applicants (and the other defendants) in the eyes of readers and turning the victims into villains; (

c) the judge showed a lack of courtesy and civility throughout the trial he presided and, in addition, he committed a large number of errors and injustices, refusing to consider their arguments, evidence and oral pleadings;

(

d) the judge had his judgment drafted by the respondent; (

e) the judge showed bias in favour of the respondent because the latter is a Member of the Barreau du Québec and the judge was previously involved in various activities and committees of the Barreau du Québec and the Bar of Montreal and participated in at least one fundraiser for the Barreau, which his former law firm previously represented. Furthermore, when he was a lawyer, his firm was sued and was defended by the firm of Heenan Blaikie while the firm of Heenan Blaikie was, at the same time, representing the respondent in a case, albeit unrelated, dealing with civil liability issues; (

f) the judge erred and contradicted himself on numerous occasions, both during the 39 days of the trial and in the resulting judgment, and he violated a plethora of laws of various kinds; (

g) the judge disregarded the rules for drafting judgments, and he ruled ultra petita ; (

h) the judge should have considered the fact that the respondent is a “serial litigator”. [ 3 ] In Droit de la famille – 143192 ( 2014 QCCA 2323 ), Savard, J.A. provided a good

summary of the principles applicable to an application for recusation: [ translation ] [5] The principles respecting recusation are well established. The rule is that there is a right to a fair trial before an impartial decision maker that appears to be so in the eyes of an informed and reasonable observer. With all due respect for the applicant, the “informed and reasonable observer” cannot be the party itself, nor the opposing party. The test for assessing an application for recusation is reasonable fear of bias, and the grounds raised in support thereof must be serious.

The party seeking recusation has the burden of proving that there are grounds for recusation. [References omitted] [ 4 ] A reading of the exhibits filed by the applicants in support of their applications shows that they are primarily relying on the reasons of the judgment dated September 21, 2018, which judgment is final and has the status of res judicata , and they are challenging the assessment of the facts set out in that judgment as well as the assessment of the credibility of certain witnesses and the characterization of their conduct, with which they disagree entirely.

The judge’s role required him to ultimately decide which of the factual versions should prevail. He considered that the facts presented by the applicants (whether as party or witness) were not credible and, as he was entitled to do, he characterized the defendants’ conduct, certainly harshly, as it appears. His judgment is final, this Court having found that the appeal had no reasonable chance of success.

Consequently, all of the applicants’ grounds which rely on that judgment as well as on the manner in which it was carried out, which includes all of the judge’s decisions with respect to the evidence presented before him or which, pursuant to objections, was not presented before him, cannot, in the present case, support an application for the judge’s recusation. [ 5 ] A reading of the exhibits filed by the applicants in support of their applications shows that they are also relying on the roles the judge may have played within, or on the periphery, of the Barreau du Québec or the Bar of Montreal while he was a lawyer.

The judge dismissed these claims of conflict of interest, and the undersigned could not do any better in order to respond to those claims and reject the allegation of bias the applicants see therein. [ 6 ] The applicants add that the respondent allegedly participated in drafting the judgment. This is a very bizarre accusation and does not merit further comment. [ 7 ] The applicants next argue that the judge used a drafting tactic they refer to as propaganda or a “ big-lie ”, of the sort, they write, that Hitler used during the Second World War.

According to them, this method of drafting the judgment even succeeded in fooling this Court when the motion to dismiss was brought, and this Court, being confused as a result, wrongly dismissed the appeal. Such is the applicants’ vision of the case and the judgment.

As mentioned in the passage from the judgment reproduced hereinabove, while the rule is that there is a right to a fair trial before an impartial decision maker that appears to be so in the eyes of an informed and reasonable observer, the “informed and reasonable” observer cannot be the party itself, particularly when the party’s version of the facts has been rejected and that of the opposing party has been accepted. [ 8 ] In Radio-Canada c.

Syndicat des radiocommunications de Radio-Canada (FNC-CSN) ( 2016 QCCA 1588 ), this Court pointed out that the mere fact that a judge hears a party once again in another case is not grounds for recusation and the fact that a judge has ruled on the credibility of a witness (or a party) does not lead to the conclusion that there is reasonable fear of bias regarding another aspect of the case. A witness may be believed regarding certain facts, but not others. In the present case, the trial is over and the judge’s role is to manage and adjudicate the disputes arising during its execution.

Moreover, in his judgment dated November 14, 2019, the judge demonstrated that he had kept an open mind, since he allowed an application for recusation made by Brana Malobabic’s spouse, for the reasons he set out therein. [ 9 ] Consequently, I am of the opinion that the applicants have not satisfied the criteria for leave and that it is not in the interests of justice that leave be granted. FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the applicants’ applications for leave to appeal; [ 11 ] With legal costs.

STÉPHANE SANSFAÇON, J.A. Zelka Malobabic Unrepresented Applicant Brana Malobabic UNREPRESENTED Applicant Daniel F. O’Connor UNREPRESENTED Respondent Mtre Béatrice Stella Gagné Ministère de la Justice Canada Impleaded party Date of hearing: January 9, 2020.