2022 QCCA 1076, 2022 QCCA 1076

Luft c. Succession de Magien 2022 QCCA 1076 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028229-193 (500-17-096167-161) DATE: 5 August 2022 BEFORE THE HONOURABLE PATRICK HEALY, J.A. SAMUEL LUFT APPLICANT – Defendant v. GERSHON (JERRY) GREIF, in his capacity as liquidator of the estate of Tauba (Tusia) Magien RESPONDENT – Plaintiff JUDGMENT [ 1 ] I am tasked with an application for the revision of the special clerk’s decision to verify a new bill of costs after a prior judgment upon those same costs have been rendered.

Respondent also asks me to condemn the Applicant to pay damages for abuse of the legal process. [ 2 ] On 28 February 2019, the Superior Court granted in part the originating application and ordered the Applicant to pay legal costs. This decision was subsequently overturned on the merits on appeal and Respondent was ordered to pay legal costs both in first instance and appeal. [ 3 ] On 29 October 2021, the Applicant issued an Initial Bill of costs for $ 8,513.62 to which Respondent filed an opposition.

An Amended Bill of costs was filed on 18 November 2021, for $20,510.44 followed by another opposition. [ 4 ] On 12 May 2022, the Deputy Clerk of the Court of Appeal verified the Bill of Costs and awarded the sum of $5,642.67 for the legal costs relating to the appeal. [ 5 ] On 19 May 2022, Mtre Pascale Tremblay-Sylvester, Special Clerk of the Superior Court verified the Bill of Costs and awarded the sum of $1,921.14 for the legal costs relating to first instance. [ 6 ] Those judgments were notified to the Respondent on 31 May 2022.

The total amount owed was, with accrued interest, $8,077.43. [ 7 ] Despite those judgments, the Applicant notified a Re-Amended Bill of Costs in Appeal for $11,224.83 on 8 June 2022. Respondent filed another opposition. This registry of this Court refused to hear this new application because a judgment on the same claim had already been rendered. [ 8 ] On 23 June 2022, Applicant notified a New Bill of Costs relating to the same claims and Respondent filed again an opposition.

This time, the Deputy Clerk rendered a new judgment, on 7 July 2022, granting the claim concerning the transcription of the hearing in the first instance of 10 June 2019. [ 9 ] However this specific additional amount claimed in the New Bill of Costs had previously been rejected by both the Clerk of the Superior Court and the Court of Appeal. [ 10 ] In the present case, Respondent alleged that the claim in the New Bill of Costs is in effect a quasi-revocation of the judgment previously rendered. The Deputy Clerk had dealt with this matter twice.

The first time when she verified the Amended Bill of Costs on 12 May 2022, and the second when she refused to hear the Re-Amended Bill of Costs on 20 June 2022. For the Respondent, the Code of Civil Procedure [ C.c.p. ] does not permit a new proceeding after judgment has been rendered [see s. 321 C.c.p. ]. [ 11 ] Pursuant to

article 344 of the C.c.p. a judge of this court can review the clerk’s decision upon the Bill of costs. But this revision is not an appeal. For this reason a mere difference of opinion with the clerk does not allow the judge to intervene. Respondent must demonstrate that the clerk made an error in principle, a decisive error or that he did not exercise his discretion in a judicial manner. [1] [ 12 ] In my opinion, the claims about the transcription of the hearing of 10 June 2019, which is the only object of the New Bill of Costs, were already decided in the previous decision rendered on 12 May 2022.

This first decision is a verification of the Amended Bill of Costs and in this particular Bill we find a claim about the transcription of 10 June 2019 for the same amount as the one in the New Bill. In fact, the two claims are for the same transcription. Consequently, a decision had been rendered on that matter and the only remedy available was a revision within ten days in accordance with art. 344 C.c.p . Accordingly, the res judicata presumption prohibited

the Special Clerk to decide the same issue after judgment had been rendered and no revision filed within the prescribed time limit. [ 13 ] In addition, on 8 June 2022, the Applicant filed a Re-Amended Bill of Costs for the exact same claims and the registry refused the deposit of the Bill because judgment had already been rendered. Even if the title of the Bill were changed from re-amended to New Bill, that doesn’t mean that the claims are different. If the content of the Bill is the same and has been examined by the Deputy Clerk in a first judgment, it cannot be done re-examined a second time.

As I said previously, the appropriate procedure is a revision. [ 14 ] In short, the Respondent convinces me that the Deputy Clerk made an error when she decided to verify the New Bill of Costs. [ 15 ] In the particular circumstances of this case, however it is impossible for me to conclude that the Applicant has abused the legal process.

In regard to the first decision of the Deputy Clerk on appeal, which concluded that the cost of transcription is one of first instance, it was reasonable for Applicant to wait for the decision of the Superior Court on this claim because it was rendered after the decision in appeal.

In the first instance, the Special Clerk decided that the cost of the transcription of the hearing in the first instance cannot be granted and should be claimed in appeal because of a judgment of this court that: Si les honoraires du sténographe constituaient des débours extrajudiciaires en première instance, ils sont devenus des débours judiciaires en appel puisque les transcriptions ont été déposées pour tenir lieu des annexes dans le dossier d'appel. [2] [ 16 ] If we take the two decisions for granted, it means that the cost of a transcription for a hearing in the first instance cannot be claimed both in the first instance and in appeal.

It is obvious that a mistake was made in one judgment. Faced with those contradictory decisions, the Applicant filed a Re-Amended Bill of Costs, not as an abuse of process, but because both courts held that the cost for transcript should be claimed before the other jurisdiction. After being rejected by the registry, the Applicant changed the title of his procedure and tried again to obtain the cost for the 10 June 2019, transcription hearing. Maybe it can be said that this is not the best use of the process, but I cannot conclude that this is an abuse.

It is not often that a party will face such circumstances where the same claims have been denied in all instances, especially when the cost is rightfully claimed. FOR THOSE REASONS, THE UNDERSIGNED : [ 17 ] GRANTS the Application for the Revision of the Special Clerk’s decision; [ 18 ] REVISES the judgment of the Deputy Clerk rendered on 7 June 2022; [ 19 ] CONFIRMS the judgment of the Deputy Clerk rendered on 12 May 2022; [ 20 ] CONCLUDES that costs have been verified in the amount of $7,563.81; [ 21 ] DISMISSES its claim in damage for abuse of process; [ 22 ] THE WHOLE with legal costs. PATRICK HEALY, J.A.

Mtre Devin Wang RAVINSKY, RYAN, LEMOINE For the Applicant Mtre Edward Figlarz BERNIER, FIGLARZ For the Respondent Date of hearing: 4 August 2022