2016 QCCA 1435, 2016 QCCA 1435

Droit de la famille — 162287 2016 QCCA 1435 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026264-168 (500-12-307889-117) MINUTES OF THE HEARING DATE: September 9, 2016 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL L. SH. Mtre simon lahaie ( Lahaie, avocats) Mtre linda hammerschmid ( Hammerschmid & associé

s) Absents RESPONDENT COUNSEL S. S. Mtre robert pancer ( Phillips Friedman Kotler s.e.n.c.r.l.) Mtre nicolas nadeau-ouellet ( Osler, Hoskin & Harcourt, S.E.N.C.R.L./s.r.l. ) Absents

DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of proceedings on July 20, 2016 by the Honourable Francine Nantel of the Superior Court, District of Montreal (articles 31 and 32 C.C.P. ) Clerk: Annabel David Courtroom: RC-14

HEARING 9 h 30 The parties were instructed that their presence at the hearing was not required and, if absent, the judgment would be forwarded to them by email. Annabel David Clerk BY THE JUDGE JUDGMENT [ 1 ] L.

Sh. seeks leave to appeal from a judgment of the Superior Court, District of Montreal, (the Honourable Madam Justice Francine Nantel), rendered during the course of proceedings on July 20, 2016, relating to objections to evidence contained in approximately 2,000 emails taken from the respondent’s computer, then downloaded and stored on a USB key by the petitioner. [ 2 ] The judge maintained objections to the introduction of certain of the emails into evidence as confidential to the respondent, pursuant to professional secrecy guaranteed by law. She dismissed others objections as not deserving of such protection.

The judgment contained the following conclusions: [24] ACCUEILLE les objections relatives aux courriels à l’exception des courriels indexés sous les numéros suivants: […]; [25] ORDONNE à Me Fournier de remettre aux procureurs les courriels indexés sous les numéros mentionnés au paragraphe précédent dans un délai de 15 jours du présent jugement; [26] FRAIS DE JUSTICE à suivre. *** [ 3 ] The hearing was held, to use the judge’s term, “ in camera ” – in particular, in the absence of the petitioner.

The judgment drew on a report prepared by Mtre Serge Fournier, an independent lawyer charged by the Superior Court with the task of overseeing a review of the emails in order to balance the parties’ competing interests in this aspect of the dispute: on the one hand, protecting, for the respondent, the confidential character of privileged information in certain of the emails, while, on the other hand, preserving the petitioner’s right to disclosure of financial information relevant to the divorce proceedings. [ 4 ] This exercise was undertaken by the judge in keeping with a protocol established by the Superior Court and confirmed, with some changes, by this Court in its judgment of July 12, 2013: Droit de la famille – 131908 , 2013 QCCA 1206 .

Importantly, among the conclusions confirmed on appeal was a direction that the designated judge seized of the matter “shall not only adjudicate the issue but also decide the procedure to be followed and the manner in which the parties shall be heard on the issue and that she shall render any other order deemed necessary or useful in this respect” (para. [33h] in para. [61] of the judgment on appeal).

[5] On March 18, 2016, the Judge rendered a decision bearing on, inter alia, a motion to clarify certain questions relating to theevidence on the USB key. She decided on the procedure to be followed for adjudicating objections, including the following as stated in her conclusions for judgment: “DÉCLARE que le Tribunal révisera les courriels sous objections en présence de Me Fournier, avocatindépendant, et des procureurs du demandeur” (para. [99]).

The petitioner’s motion for leave to appeal from this judgment was dismissedby the Court on May 13, 2016: Droit de la famille – 161168, 2016 QCCA 838. [6] After having failed to have the procedure for the review of the emails set aside on appeal at these two previous stages,petitioner now seeks to appeal the judgment on objections to the emails undertaken by the Superior Court, based on Mtre Fournier’sreport and according to the protocol approved by this Court. *** [7] The petitioner argues that the judge erred in law by failing to examine each of the emails separately before deciding whether ornot they were privileged.

She is said to have wrongly maintained certain objections based only on the fact that the person sending orreceiving the email was associated with a lawyer, accountant, tax adviser or notary. Instead, argues the petitioner, each of the 2,000emails should have been scrutinized by the judge, especially in connection with a family law dispute where disclosure of assets is therule. By proceedings as she did, the judge is said to have transgressed the rules for deciding on the admissibility of such evidence as setforth by the Supreme Court in Foster Wheeler Power Co. v.

Société intermunicipale de gestion et d’élimination des déchets (SIGED)inc., 2004 SCC 18 , [2004] 1 SCR 456. It is also submitted that the judge was wrong to have decided the matter in the absenceof the petitioner or her counsel. [8] The petitioner argues further that she sees as the present matter as “intertwined” with her proposed appeal of the judgmentdismissing her motion for recusal of the judge. I note that in a judgment rendered today, I dismissed the petitioner’s motion for leave toappeal from the judgment on recusal. *** [9] Leave is sought on the alternative grounds of articles 31 and 32 C.C.P.

In the petitioner’s view, the judgment causesirremediable prejudice to her in a manner that cannot be remedied in the final judgment. In addition, the judgment is said to beunreasonable, and it fails to respect the guiding principles of procedure that guarantee a fair trial. [10] In my view, whether considered under

article 31 or 32 C.C.P., the motion for leave must be dismissed. [11] Granting leave would not be in the best interest of justice (art. 9 C.C.P.), nor would doing so be in keeping with my duty toensure that the principle of proportionality is respected at this stage of the proceedings (art. 18, para. 2). Furthermore, I see nothing in thejudgment that is unreasonable within the meaning of

article 32 C.C.P. [12] First, the petitioner has misread the judgment. She is wrong to say that the judge decided on the objections without examiningthe text of the 2,000 emails. Paragraph [14] of the judge’s reasons says the contrary. The petitioner did not have to be present at thehearing to understand that. The minutes of the hearing, included by the petitioner as a

schedule to her motion, also makes this plain. Inparagraph [15], the judge merely explained that, in keeping with the principle of proportionality, her reasons for maintaining ordismissing the objections each of the 2,000 objections would not be recorded separately in her judgment. [13] The protocol for reviewing the emails by an independent lawyer, bitterly disputed, was confirmed twice on appeal, includingthe decision by the judge to hold the hearing on the objections in the absence of the petitioner as she did.

In both instances, this Courtrecognized – as did the judge of the Superior Court – that the review of a massive number of emails required special measures, with theoverarching concern of respecting as far as possible the competing interests of both parties. The mechanism the judge settled on in thislast stage for reviewing the objections was not the only one that might have been imagined, but it is plain to me that she directed herselfto take account of all the competing interests, including the limited resources of the courts generally and the judgments of this Court inthe file.

I am struck, in addition, by her comment at paragraph [22] in which she indicates that nothing in the materials before herindicates a matter relevant to the divorce proceeding. [14] In some significant respect, the petitioner seeks to relitigate matters directly or indirectly decided by this Court when itapproved the protocol followed by the judge, including the proposed manner in which to hold the hearing on the objections.

Thepetitioner has not convinced me that she faces an injustice of any sort as a result of the judgment of the Superior Court and has failedcompletely to explain why a third appeal in respect of these emails would be an appropriate allocation of judicial resources. [15] I would add that nothing in the decision of the judge suggests bias or a reasonable apprehension of bias on the part of the judge.The reasons given in my judgment on the motion for recusal in this file, rendered today, are applicable here. [16] Mindful that this is a family law dispute, I nevertheless choose to exercise my discretion to award legal costs, on appeal, to therespondent.

I justify this based on what I perceive to be a disregard, by the petitioner, for the principle of proportionality. I note that thisCourt did the same in its judgment of May 13, 2016 bearing on the emails. FOR THE FOREGOING REASONS, the undersigned: [17] DISMISSES the motion, with legal costs on appeal against the petitioner.

NICHOLAS KASIRER, J.A.