2010 QCCA 2147, 2010 QCCA 2147

Fabrikant c. Drummond Jail 2010 QCCA 2147 COURT OF APPEAL CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL MINUTES OF THE HEARING DATE: November 24, 2010 THE HONOURABLE NICOLE DUVAL HESLER, J.A. No: 500-09-021160-106 (500-05-006680-928) PETITIONER ATTORNEY VALERY FABRIKANT Personally RESPONDENTS ATTORNEY DRUMMOND JAIL ARCHAMBAULT JAIL Mtre Jacques Savary Ministère de la Justice Canada MIS EN CAUSE ATTORNEYS M.N.S. SWAMY TS SANKAR SECHADRY SANKAR Mtre Benoît Byette McCARTHY TÉTRAULT Mtre Roger Judd Jr.

No: 500-09-021165-105 (500-05-006680-928) PETITIONER ATTORNEY VALERY FABRIKANT Personally RESPONDENTS ATTORNEY VAN GINHOVEN Me LAVERGNE MIS EN CAUSE ATTORNEYS M.N.S. SWAMY TS SANKAR SECHADRY SANKAR Mtre Benoît Byette McCARTHY TÉTRAULT Mtre Roger Judd Jr. MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON OCTOBER 29, 2010, BY THE HON. FRANÇOIS ROLLAND OF THE SUPERIOR COURT DISTRICT OF MONTREAL

Clerk: Annick Nguyen Court Room: ————— HEARING Judgment – See page 4. Annick Nguyen Clerk JUDGMENT [ 1 ] Appellant is asking for leave to appeal two judgments of Chief Justice Rolland, of the Superior Court. One dismissed a Motion for Relief presented by Appellant, the other an Application for Special Rule to Appear against Accusation of Contempt of Court, also filed by Appellant.

Such Motions were made in a lawsuit in damages instituted by Appellant and fixed for trial in January 2011. [ 2 ] In his Motion for Relief, Appellant, who is incarcerated, asked the court for access to his personal effects, for a copy of a recovery report concerning the computer he uses, for increased access to that computer, for a specially adapted transport car and to be detained in a single cell.

He also asked for declaratory conclusions with respect to his right to send subpoenae, for a confirmation that another judgment would not be binding on the trial judge, for witnesses from "out of town" to testify via video-conference and also to be allowed to participate in the trial via video-conference.

[ 3 ] This description of the conclusions sought in first instance make it clear that Appellant wants to appeal decisions which are not only interlocutory, but administrative in nature. [ 4 ] At the stage of leave to appeal interlocutory judgments, the criteria to be met are spelled out in articles 29 and 511 C.C.P. [ 5 ] Judgments concerning administrative matters or case management issues are discretionary [1] and courts of appeal will grant leave to appeal but reluctantly.

In addition, it must be remembered that the trial judge can modify any such order as the trial unfolds and circumstances dictate, which calls for even more deference. [ 6 ] The judgment on the Motion for Relief deals thoroughly with Appellant's arguments and Appellant fails to convince me that it would be in the interest of justice to grant his request for leave to appeal. [ 7 ] In addition, the transportation issue was raised by Appellant on a previous occasion and resolved by a judgment of my colleague Dalphond in Fabrikant vs Quebec (A.G.) . [2] Petitioner says he is now invoking transport safety as opposed to a Charter right.

However, since the basis for his asserting a violation of a Charter right in those previous proceedings was the alleged dangerousness of the means of transport used to convey him, I find that there is, in essence, res judicata . [ 8 ] In addition, Petitioner, who has been declared a vexatious litigant, is in the habit of resurrecting issues which have already been ruled upon and thus abuses the judicial process. [ 9 ] As to the second judgment, denying an application to appear on an alleged contempt of Court, I find it appropriate to quote the judgment of my colleague Bich in another matter involving petitioner: [13] The Court has often expressed the view that, although the judge seized with a motion for leave to appeal is not to decide the merits of the case as such, he or she can nevertheless consider such merits in order to assess the chances of success of the petitioner's appeal.

If the appeal has no reasonable chance of success, then leave should not be granted, since the pursuit of justice does not require than an ill- founded case be submitted to the Court. [3] [ 10 ] The application for an order to appear on an alleged contempt was based on Appellant's claim that Respondents' representatives had prepared letters meant to mislead the Court, a claim in which the Chief Justice saw no merit, adding that: [11] The Petitioner has not established that the Respondent's position, as expressed in the two letters, could even come close to warrant a hearing on whether they might constitute contempt of court. [ 11 ] Appellant fails to show that the judgment below contains any error which would justify the intervention of the Court.

In my opinion, the appeal would have no reasonable chance of success and I accordingly deny leave. [ 12 ] The whole without costs. NICOLE DUVAL HESLER