2018 QCCA 148, 2018 QCCA 148

Steinberg c. Kerner 2018 QCCA 148 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027285-188 (500-17-098284-170) MINUTES OF THE HEARING DATE: February 2, 2018 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER COUNSEL AVI STEINBERG Mtre MICHAEL HOLlANDER (Oiknine & Associé

s) RESPONDENT COUNSEL JAMIN KERNER Mtre Andrew H. Heft (Heft Droit de la famille/Family Law Inc.) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceedings on January 12, 2018, by the Honourable Martin Castonguay of the Superior Court, District of Montreal (Art. 31 para. 2 and 357 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 9:30 Continuation of the hearing of February 1, 2018. The parties’ attendance is not required, today. BY THE JUDGE: Judgment – See page 3. End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] On January 12, 2018, Justice Martin Castonguay of the Superior Court, District of Montreal, allowed Respondent to verbally amend the conclusion of his motion so as to seek to be relieved of default to inscribe and to extend the delay to inscribe until April 4, 2018.

The judge then granted the motion. [ 2 ] The moving party contends that the exercise by the judge of his discretion was unreasonable and unfounded in fact and in law so that leave to appeal should be granted. [ 3 ] Even if the judgment relieving Respondent of his default and granting an extension of time meets the criteria for leave under

Article 31 C.C.P. , [1] the motion does not meet the requirement of

Article 32 C.C.P. [ 4 ] Because the judgment grants an extension of time, it is a case management measure [2] as the motion judge stated. Accordingly,

Article 32 C.C.P. applies to the leave application. I find nothing in the judge’s reasons that could be characterized as unreasonable in light of the guiding principles of procedure. [ 5 ] Because of a (contested) amendment allowed by Collier, J.C.S., the latter extended the delay to inscribe the case until December 20, 2017. The moving party sought leave to appeal from this decision of Collier, J.C.S., which a judge of this Court dismissed on December 13, 2017.

Thereafter, as set out in the motion before Castonguay, J.C.S., the attorney for the moving party indicated his intention to seek the disqualification of Respondent’s attorney as he would be called as a witness. [ 6 ] Moreover, given the foregoing, the depositions foreseen in the case protocol had not yet taken place.

Indeed, the contested amendment before Collier, J.C.S., and the motion for leave had caused the timing in the case protocol to be surpassed. [ 7 ] Castonguay, J.C.S., was mindful of not compromising a litigant’s rights based on any confusion or ill will between counsel and the passage of two weeks during the Christmas/New Year’s vacation period. [ 8 ] The moving party insists that there was no impossibility to act on the part of the Respondent so that the judge misapplied the criterion of

Article 173 C.C.P. as interpreted in the case law. [3] [ 9 ] This is not a case of attorney negligence. The impossibility arose from the mix-up and the procedural wrangling stemming mainly from counsel for the moving party.

The motion and affidavit laid out the situation before Castonguay, J.C.S., and it was within his discretionary power to agree with Respondent “that it was impossible for the parties to complete a joint declaration of readiness to set the present case down for trial.” [ 10 ] The motion seeking leave to appeal invites this Court to rehear the matter and substitute its discretion for that of the motion judge of the Superior Court.

Barring special circumstances, which do not include the alleged erroneous application of the criteria for refusing an extension of the delay, as argued by the moving party, leave to appeal should not be granted. [ 11 ] Moreover, not only is leave not merited on application of

Article 32 C.C.P. , the interests of justice (Article 9 C.C.P. ) and proportionality (Article 18 C.C.P. ) militate against the granting of leave. [4] FOR THESE REASONS, THE UNDERSIGNED:

[ 12 ] DISMISSES the motion for leave to appeal with legal costs. MARK SCHRAGER , J.A.