2015 QCCQ 1455, 2015 QCCQ 1455

Unofficial English Translation Boisbriand (Ville de) c. Labelle 2015 QCCQ 1455 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TERREBONNE LOCALITY OF SAINT-JÉRÔME "Civil Division" No.: 700-22-031944-142 DATE : FEBRUARY 24, 2015 _______________________________________________________________ PRESIDING: THE HONOURABLE JIMMY VALLÉE, J.C.Q. _______________________________________________________________ TOWN OF BOISBRIAND -and- CLAUDE PRÉVOST Plaintiffs v.

SYLVAIN LABELLE Defendant _______________________________________________________________ JUDGMENT ON MOTIONS TO DISMISS _______________________________________________________________ [ 1 ] Sylvain Labelle asks the Court to dismiss the motion to institute proceedings that was served on him by the Town of Boisbriand (the "Town") and Claude Prévost. [ 2 ] In an amended notice of disclosure dated December 2, 2014, he alleges that the Town does not have the requisite interest to sue him, contrary to the provisions of articles 55, 159 and 165 (3) of the Quebec Code of Civil Procedure (" C.C.P.

"). [ 3 ] In addition to this notice of disclosure, the defendant filed a motion to dismiss the motion to institute proceedings, which he considers improper, within the meaning of the provisions of articles 54.1 and following C.C.P. Factual background [ 4 ] This case has as its backdrop a political quarrel. [ 5 ] Labelle [1] is a former Town employee who ran unsuccessfully for mayor in the last municipal elections.

Prévost is director of the Town's fire department. [ 6 ] The Town and Prévost are each seeking $10,000 in moral and exemplary damages from Labelle for allegedly damaging their reputation. [ 7 ] The impugned acts are as follows. On March 1, 2014, Labelle wrote comments on the Facebook page of one Roch Dumoulin that, according to the plaintiffs, were damaging to their reputation. They maintain that these comments were aimed directly at them and that they were totally false.

They claim to have suffered substantial prejudice. [ 8 ] The Court believes it is important here to reproduce in its entirety the comment thread, or conversation, appearing on Roch Dumoulin's Facebook page on March 1, 2014. [ 9 ] Note that Labelle is the only person who contributed to this exchange of comments who is also named in this action. There are no submissions in the proceedings concerning Roch Dumoulin or the other persons who wrote on the Facebook page. [ 10 ] On March 1, Roch Dumoulin wrote as follows:

[TRANSLATION] I just can't believe it!!! I just came across an

article in La Presse that talks about Blainville purchasing emergency vehicles. And Mr. Caya is quoted as saying that it is [TRANSLATION] " Impossible to rely on neighbours or on other trucks to obtain certain equipment. We have to be self-reliant." End quote. It's clear that with this backward mentality, we won't move forward in our field and citizens have nothing to gain. It seems they haven't learned anything!!! [ 11 ] According to the printed version of the Facebook page, four comments replied to Dumoulin's comment before Labelle wrote anything. The text of these comments does not appear there.

On March 1 at 6:53 p.m. Labelle wrote: [ translation ] There's another one in Boisbriand who has a backward mentality. [ 12 ] One Stéphane Ferland added the following at 7:28 p.m. the same day: [ translation ] lol we've all had them at some point… [ 13 ] To which Labelle replied one minute later, at 7:29 p.m.: [ translation ] Yeah, but some stand out more than others. [ 14 ] These were in extenso the impugned comments made by Labelle.

The affidavit in support of the motion [ 15 ] Counsel for the plaintiffs argues that Labelle's motion should be dismissed out of hand since the affidavit filed in support of the motion is signed by his lawyer and not by him. Is this fatal? [ 16 ] The Court does not believe so and, by analogy, agrees with the comments of Judge Gratien Duchesne of the Superior Court in Usine de congélation de Saint-Bruno v .

Gobeil : [2] [TRANSLATION] [29] The plaintiffs argue that the affidavits are void because they were signed on February 13 by the defendant, whereas the motions are dated February 14, 2012. [30] These motions had to be supported by affidavits to certify the veracity of the alleged facts for which proof is not already in the record. [3] [31] Almost all the alleged facts were raised by the plaintiffs themselves. Only the exhibits filed by the defendant, such as additional newspaper articles, cannot serve as evidence because they report facts that cannot be taken as true without a valid affidavit.

For the rest, the defendant's motion invokes the law, whereas the facts in support of the law are reported by the plaintiffs. [32] The defendant's error is immaterial insofar as the impugned statements were made within a context, as we shall see later. [ 17 ] Labelle did not file any exhibits and, as in that case, almost all the alleged facts were raised by the Town and Prévost. The motion cannot be dismissed on this ground alone. Dismissal under

article 54.1 C.C.P. [ 18 ] No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner, and therefore contrary to the requirements of good faith. [4] [ 19 ] Articles 54.1 C.C.P. and following, which came into force in June of 2009, give the courts broad powers to sanction improprieties of all kinds, including actions that are bound to fail. [ 20 ] These provisions read as follows: 54.1 A court may, at any time, on request or even on its own initiative after having heard the parties on the point, declare an action or other pleading improper and impose a sanction on the party concerned.

The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate. 54.2.

If a party summarily establishes that an action or pleading may be an improper use of procedure, the onus is on the initiator of the action or pleading to show that it is not excessive or unreasonable and is justified in law. A motion to have an action in the first instance dismissed on the grounds of its improper nature is presented as a preliminary exception.

54.3 If the court notes an improper use of procedure, it may dismiss the action or other pleading, strike out a submission or require that it be amended, terminate or refuse to allow an examination, or annul a writ of summons served on a witness.

In such a case or where there appears to have been an improper use of procedure, the court may, if it considers it appropriate, (1) subject the furtherance of the action or the pleading to certain conditions; (2) require undertakings from the party concerned with regard to the orderly conduct of the proceeding; (3) suspend the proceeding for the period it determines; (4) recommend to the chief judge or chief justice that special case management be ordered; or (5) order the initiator of the action or pleading to pay to the other party, under pain of dismissal of the action or pleading, a provision for the costs of the proceeding, if justified by the circumstances and if the court notes that without such assistance the party's financial situation would prevent it from effectively arguing its case. 54.4.

On ruling on whether an action or pleading is improper, the court may order a provision for costs to be reimbursed, condemn a party to pay, in addition to costs, damages in reparation for the prejudice suffered by another party, including the fees and extrajudicial costs incurred by that party, and, if justified by the circumstances, award punitive damages.

If the amount of the damages is not admitted or may not be established easily at the time the action or pleading is declared improper, the court may summarily rule on the amount within the time and under the conditions determined by the court. [ 21 ] These articles were included in the Code of Civil Procedure on June 4, 2009 pursuant to the Act to amend the Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate , [5] the

preamble to which, which was also included in the Code , reads as follows: AS it is important to promote freedom of expression affirmed in the Charter of human rights and freedoms ; AS it is important to prevent improper use of the courts and discourage judicial proceedings designed to thwart the right of citizens to participate in public debate; AS it is important to promote access to justice for all citizens and to strike a fairer balance between the financial strength of the parties to a legal action. [ 22 ] When this bill was adopted, the minister said the following: [6] [TRANSLATION] … the bill proposes to include a

preamble to reinforce the message that the legislature wants to send to the public, i.e., that it is important to protect freedom of expression, to prevent or at the very least to counter the improper use of the courts, and to promote access to justice for all citizens. … … I see the scope of this

preamble as possibly being very useful for litigants and for the courts, giving them a sense of the context of these new provisions, to guide the courts. [ 23 ] As Judge André Wéry aptly put it in Valkanas v . IPC Financial Network Inc : [7] [TRANSLATION] [25] This provision of the Code clearly seeks to exclude, among other things, actions that are bound to fail, while sparing the victims of such actions the hardships of a trial. [26] But, as with every measure of this kind, we must take care to not throw out the baby with the bath water. That is why such actions must be carefully examined because, as we know, good faith is generally presumed (

article 2805 , Civil Code ), and parties have a fundamental right to address the courts to have their disputes resolved (

article 23 , Charter of Human Rights and Freedoms , R.S.Q., c. C- 12). … [31] The outright dismissal of an action is obviously the most radical measure for dealing with improper actions.

Consequently, this measure should be applied only as a last resort [TRANSLATION] "with the greatest care", [8] that is, when it is based [TRANSLATION] "on the Court's conviction [that the action] is clearly unfounded" [9] or when [TRANSLATION] " its frivolity … is clearly apparent". [10] In other words, dismissal [TRANSLATION] "is the ultimate sanction reserved for clear cases of impropriety". [11] As Kasirer J. pointed out, in sum, the court must exhibit "traditional cautiousness before dismissing claims completely" without being "too skittish to take bold action to counter abuse". [12] [ 24 ] As for how the court hearing such a motion should proceed, the Court of Appeal of Quebec in its ruling in Valkanas v .

IPC Financial Network Inc. , supra , [13] recently reiterated: [TRANSLATION]

[59] The first paragraph of

article 54.2 C.C.P. provides the mechanism for proving impropriety: If a party summarily establishes that an action may be an improper use of procedure, the onus is on the initiator of the action or pleading to show that it is not excessive or unreasonable and is justified in law. [60] In Acadia Subaru v.

Michaud , [14] my colleague Kasirer, J.A. describes and comments on this mechanism as follows: [ 29 ] By allowing a party to establish impropriety "summarily" (article 54.2, paragraph 1), and by empowering the courts to sanction abuse or apparent abuse of process on that basis (article 54.3), the legislature has sought to provide judges with tools for acting expeditiously and inexpensively when faced with abuse or apparent abuse of process . Prior to the enactment of

article 54.1 C.C.P., some criticism had been levied against courts that they were seen as too skittish to take bold action to counter abuse, including dismissing claims entirely, for fear of putting an end to an action that might have some basis in law.

The reversal of the burden of proof and the powers to sanction apparent impropriety were enacted in part to answer the shortcomings of the former rules . … [68] … The burden is reversed when the party alleging abuse establishes summarily that there may be abuse , after which the onus falls to the initiator of the action or pleading to show that it is not excessive or unreasonable and is justified in law. … [76] … An attempt to defeat the ends of justice is a species of impropriety relating to a distortion of the judicial function.

The Supreme Court has repeatedly identified the "integrity of the adjudicative process" as a core aspect of the doctrine of abuse of process, which extends to preventing a civil party from using the courts for an improper purpose. An attempt to defeat the ends of justice is similarly predicated on an indication that the offending litigant’s action is a bad faith attempt to deny the legitimate right of another person.

In this sense, an attempt to defeat the ends of justice stands in violation of the principle that a litigant should only take action before the courts in good faith, as consecrated by articles 4.1 C.C.P. (Emphasis added. Citations omitted) [ 25 ] It is true that case law recommends the greatest care before dismissing an action under

article 54.1 C.C.P. [15] A review of this case law, however, shows that it is moving towards greater openness on the part of the courts. [ 26 ] Whereas in the past evidence of the plaintiff's blameworthy conduct or blatant bad faith was required, more recent judgments merely look for the plaintiff's [TRANSLATION] " recklessness " and/or the action's lack of merit. [16] The courts are less hesitant to dismiss on a motion an action that is clearly bound to fail. [ 27 ] In Valkanas , [17] supra , St-Pierre, J.A. cites with approval the comments of her colleague Dalphond, J.A. who, in Royal Lepage commercial inc. v. 109650 Canada Ltd. , [18] states that [TRANSLATION] "the purpose of a court action is to allow the law and the truth to prevail" and that [TRANSLATION] "using it for other purposes is improper".

He also writes that to make a finding of impropriety there must be [TRANSLATION] "indications of bad faith … or at the very least indications of recklessness", before defining recklessness as [TRANSLATION] "filing an action or a pleading where a reasonable and prudent person, placed in the same circumstances as those known to the party when filing the pleading or arguing it, would conclude that the pleading is without merit". [19] [ 28 ] Also having to rule on a motion to dismiss a motion to institute proceedings in a defamation case, Judge Gratien Duchesne of the Superior Court wrote as follows, in 2012, in Usine de congélation de Saint-Bruno v .

Gobeil : [20] [TRANSLATION] [11] It should be noted here that evidence is not limited to that which is assumed to be true from the facts alleged. It is, rather, subject to a different standard, that of summarily establishing a finding that the procedure is improper. [12] The

interpretation of the notion of abuse for the purposes of articles 54.1 and following must be broad and liberal, otherwise the legislature's objectives may not always be met, namely better protection of freedom of expression with respect to matters concerning the public interest in a free and democratic society, in reaction to the practice of defamation law which, in the past, was predominant.

Times change and so too does the law. [13] Nevertheless, although defamation law has been circumscribed over the years, citizens must limit their comments to subjects of public interest, in a context of public debate, without using foul, acrimonious, hateful, malicious or disparaging language. [14] Allegedly defamatory comments cannot be properly analyzed without taking into account the broad context in which they were made. The Court must consider the words used as a whole and not in isolation.

First step [ 29 ] Did Labelle summarily establish that the action might be improper? [ 30 ] The Facebook page printout and the allegations of the motion to institute proceedings, combined with the arguments of Labelle's counsel, convince the Court, which does not hesitate to answer this question in the affirmative. Second step [ 31 ] The onus is therefore on the Town and on Prévost to show that their action is not excessive or unreasonable and is justified in law. [ 32 ] Their only argument was to show the Court that the comment written by Labelle was clearly aimed at the director (Prévost) of

the Town's fire department and therefore also targeted the Town. [33] To establish damage to reputation, the injured party must, when presenting its evidence on the merits, convince the Court thatthe comments at issue are defamatory. [34] The concept of defamation has been defined in many ways over the years.

Generally speaking, it is held that defamation“consists in the communication of spoken or written remarks that cause someone to lose in estimation or consideration, or that promptunfavourable or unpleasant feelings toward him or her”.[21] [35] Whether remarks are defamatory is determined by applying an objective standard.[22] Words may be defamatory because ofthe idea they expressly convey or by the insinuations that may be inferred from them.[23] [36] We must therefore ask whether an ordinary citizen would believe that the remarks made, when viewed as a whole, injured thereputations of Prévost and the Town.[24] A person who has made remarks that are deemed to be defamatory will not necessarily becivilly liable for them, unless the plaintiff further demonstrates that the person who made the remarks committed a wrongful act.[25] [37] In 2011, Deschamps J. of the Supreme Court of Canada wrote as follows in Bou Malhab v.

Diffusion Métromédia CMR inc. etal.:[26] [16] The concept of defamation requires that the right to the protection of reputation be reconciled with the right to freedom ofexpression, since that which belongs to the former is generally taken away from the latter. Several international agreements reflect thisneed to strike a balance between the two rights. For example, the International Covenant on Civil and Political Rights, Can. T.S. 1976,No. 47, Art. 19(2) and (3), to which Canada is a party, makes the exercise of the right to freedom of expression subject to respect for thereputation of others.

Similar guarantees are found in the American Convention on Human Rights, 1144 U.N.T.S. 123, Arts. 11, 13(1) and(2), and the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, Art. 10, both of which havebeen widely ratified. [17] Freedom of expression is protected by the Canadian Charter of Rights and Freedoms, s. 2 (b), and the Charter of human rightsand freedoms, R.S.Q., c. C-12, s. 3 (“Quebec Charter”). It is one of the pillars of modern democracy.

It allows individuals to becomeemancipated, creative and informed, it encourages the circulation of new ideas, it allows for criticism of government action and itfavours the emergence of truth (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19). Freedomof expression is essential in ensuring that social, economic and political decisions reflect the aspirations of the members of society. It isbroad in scope and protects well-prepared speech and wrath-provoking comments alike (R. v. Keegstra, (SCC), [1990] 3S.C.R. 697; R. v. Butler, (SCC), [1992] 1 S.C.R. 452).

However, it is not absolute and can be limited by other rights ina democratic society, including the right to protection of reputation (Hill v. Church of Scientology of Toronto, (SCC),[1995] 2 S.C.R. 1130, at paras. 102-6;Prud’homme, at para. 43; Néron, at para. 52). [18] The right to the safeguard of reputation is guaranteed by the Quebec Charter (s. 4) and the Civil Code of Québec, S.Q. 1991, c.64, arts. 3 and 35. Since good reputation is related to dignity (Hill, at paras. 120-21), it is also tied to the rights protected bythe Canadian Charter.

Reputation is a fundamental feature of personality that makes it possible for an individual to develop in society. Itis therefore essential to do everything possible to safeguard a person’s reputation, since a tarnished reputation can seldom regain itsformer lustre (Hill, at para. 108). [19] Of course, there is no precise measuring instrument that can determine the point at which a balance is struck between theprotection of reputation and freedom of expression. In reconciling these two rights, the principles on which a free and democratic societyis based must be respected.

The intersection point will change as society changes. What was an acceptable limit on freedom of expressionin the 19th century may no longer be acceptable today. Indeed, particularly in recent decades, the law of defamation has evolved toprovide more adequate protection for freedom of expression on matters of public interest. In the common law, for example, this Courthas reassessed the defence of fair comment (WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at paras. 49 et seq.) andrecognized the existence of a defence of responsible communication on matters of public interest (Grant v.

Torstar Corp., 2009 SCC 61,[2009] 3 S.C.R. 640). [20] The Canadian approach is part of a trend that can be observed in many democracies, including England (Reynolds v. TimesNewspapers Ltd., [2001] 2 A.C. 127 (H.L.); Jameel v. Wall Street Journal Europe Sprl, [2006] UKHL 44, [2007] 1 A.C. 359), Australia(Theophanous v. Herald & Weekly Times Ltd. (1994), 124 A.L.R. 1 (H.C.); Lange v. Australian Broadcasting Corp. (1997), 189 C.L.R.520 (H.C.)), New Zealand (Lange v. Atkinson, [2000] 3 N.Z.L.R. 385 (C.A.)), the United States (New York Times Co. v.

Sullivan, 376U.S. 254 (1964)) and Germany (BVerfGE 82, 272, June 26, 1990, Stern-Strauß case; BVerfGE 93, 266, October 10, 1995, Soldiers aremurderers case). This phenomenon can also be seen in the decisions of the European Court of Human Rights (Bladet Tromsø andStensaas v. Norway (GC), No. 21980/93, ECHR 1999-III; Colombani v. France, No. 51279/99, ECHR 2002-V).

In France, whilefreedom of expression has been protected by passing a special penal statute, recent cases have recognized that this was a system distinctfrom the system of civil liability found in the French Civil Code (Cass. ass. plén., July 12, 2000, Bull. civ., No. 8). [21] What is of interest for my purposes is not so much the specific solutions proposed by these courts, which vary depending on thelegal traditions, constitutional guarantees and social norms that exist in each country, as the general trend that emerges from thecases.

Just like Canadian courts, including those in Quebec, all of these courts are increasingly concerned about protecting freedom ofexpression. The law of defamation is changing accordingly. This is the general context in which this case must be considered. I will nowlook at the legal rules applicable to defamation in Quebec civil law. Emphasis added [38] Referring to these passages in Bou Malhab, Kasirer, J.A. of the Court of Appeal of Quebec wrote the following in AcadiaSubaru v. Michaud:[27] [TRANSLATION]

[71] … In Bou Malhab , Deschamps J. observed that case law has tended, with respect to defamation law, to provide better protection for freedom of expression in matters of public interest. Adopting rules developed by the Quebec legislature to give special protection to freedom of expression in public debate could well be perceived as being part of this same trend. The

preamble to the act adopting articles 54.1 and following underscores the special importance given to freedom of expression and the need to counter the improper use of the courts designed to "thwart the right of citizens to participate in public debate". References omitted [ 39 ] In light of these teachings of the higher courts, we will now analyze Labelle's impugned acts. [ 40 ] He wrote the following, on the Facebook page (wall) of a third party who at the time had 182 "Facebook friends", in response to a comment made by this third party concerning an

article in the La Presse newspaper: [TRANSLATION] There's another one in Boisbriand who has a backward mentality. Yeah, but some stand out more than others. [ 41 ] Even when put back in its context (paragraphs 11 to 14 of this judgment), the second comment says nothing in particular; it simply supports, or emphasizes, the first by stating that the [TRANSLATION] "one" in the first comment [TRANSLATION] "stand[s] out more" than others. [ 42 ] But who is the [TRANSLATION] "one" in the first comment?

The Court notes that Prévost's name appears neither in Labelle's comments nor in the rest of the "Facebook conversation". There are no specific clues or references either that would identify him, as if someone had written, for example, "The director of the fire department of the town of Boisbriand". [ 43 ] How do we know whom Labelle is writing about? How can we identify him? We know the person is in Boisbriand. That's the only clue. Should we conclude that it is an employee or, in a broader sense, a member of the Town staff or administration? [ 44 ] According to Dumoulin's comment, the La Presse

article talks about the purchase of emergency vehicles. Should we therefore conclude, as counsel for the plaintiffs suggests, that Labelle is necessarily writing about Prévost? [ 45 ] Who is responsible for such purchases in Boisbriand? The director of the fire department, the general manager, the buyer, or the procurement manager? The Town speaks (and therefore buys) though its council.

Is it the council that is the subject of the comments, the mayor, a councillor? [ 46 ] Nothing suggests that the comment is personally directed at Prévost, even if he subjectively feels that way. [ 47 ] Furthermore, Labelle states that the person in question has a [TRANSLATION] backward mentality , and the context suggests that it is with respect to the purchase of emergency vehicles.

Is this sufficient to constitute defamation or is it, rather, simply the expression, perhaps somewhat tactless, of a divergent opinion? [ 48 ] In 3834310 Canada inc. , [28] Tessier-Couture J. had to rule on a motion to institute proceedings filed by Pétrolia inc., which was suing the Le Soleil newspaper for an

article in which Mr. Ugo Lapointe of a coalition for better mining practices in Quebec publicly stated on the subject of gas and oil extraction that [TRANSLATION] "These are non-renewable resources that belong to all Quebecers. It is small-scale theft, but which opens the door to theft on a larger scale". [ 49 ] Before granting the motion to dismiss filed under

article 54.1, Tessier-Couture J. stated that the word [TRANSLATION] "theft" used to describe the defendant's actions had to be placed in the general context of the matter before concluding: [TRANSLATION] [38] The word [TRANSLATION] "theft" was used in the figurative sense according to the context and ongoing public debate on the applicable legislation, which unfortunately often interests only the persons concerned, and it does not, in the eyes of the average citizen, damage the reputation of Pétrolia, which is not necessarily known to everyone.

It may be unfortunate and vexatious that the word [TRANSLATION] "theft" was used, but in the context in which it was used, could it have harmed Pétrolia's reputation? The Court doubts it. … [41] For there to be fault, there must be a clear intention to harm the person affected by the comments. In the case at bar, this is not the case.

The intention is to denounce the applicable legislation, which is a matter of public interest as part of the announced legislative reform. … [ 50 ] As in that case, what we have here is a specific discussion that is part of a specific debate, which unfortunately often interests only the persons concerned, and it does not, in the eyes of the average citizen, damage the reputation. [ 51 ] Furthermore, even if he had been mentioned by name, the Court does not see how Labelle's comments, considered in the context of the "Facebook conversation" initiated by Dumoulin, can in any way harm Prévost, and even less so the Town of Boisbriand.

Yes, the word "Boisbriand" is used in the comment, but simply as a geographic indication. Mention is made of someone in Boisbriand. [ 52 ] In the words of Dalphond, J.A., the Court concludes that the Town and Prévost have filed here [TRANSLATION] an action or a pleading where a reasonable and prudent person, placed in the same circumstances as those known to the party when filing the pleading or arguing it, would conclude that the pleading is without merit.

[ 53 ] Relying on the second paragraph of

article 54.1 C.C.P ., the Court notes here an abuse resulting from a clearly unfounded action and unreasonable use of procedure.

It is only a small step to conclude that what we also have here is an attempt to divert the ends of justice to restrict freedom of expression in public debate. [ 54 ] Drawing on the teachings of the higher courts concerning not only damage to reputation but also the rules that should govern the dismissal of an action that seems bound to fail, the Court concludes that, in the circumstances, the action brought by the Town of Boisbriand and Claude Prévost has no reasonable chance of success and must be terminated immediately.

Dismissal for absence of interest [ 55 ] Considering the conclusion reached by the Court on the other motion, it does not appear necessary to rule on the question of the Town's absence of interest in bringing a defamation action, except to confirm what the Court has already stated at the hearing. [ 56 ] According to case law, a legal person, including a town, has the requisite interest to bring an action for defamation. This motion would therefore have failed.

Extrajudicial fees [ 57 ] Labelle claims compensation on the order of $4,000 for the extrajudicial fees he has incurred to date to be represented by counsel and to file the preliminary motions. [ 58 ] The Court of Appeal has set the guidelines for awarding extrajudicial lawyer's fees when a motion to dismiss under

article 54.1 C.C.P. is granted. In Hébert (Succession de) , [29] Forget, J.A. writes that a party who claims reimbursement of such fees must prove them: [TRANSLATION] [128] Lawyers who claim reimbursement of their fees from a third party in court proceedings are not exempted from proving them any more than a plumber, an architect, an accountant, etc. It is not enough to file one's bills when claiming reimbursement thereof from a third party other than one's client. [129] I know that it is very difficult for a lawyer to transform himself into a witness and to be subjected to his fellow lawyer's cross- examination.

These procedural difficulties cannot exempt the lawyer from providing proof when seeking reimbursement from a third party. … [131] We must conclude that the respondents did not prove on a balance of probabilities the quantum of the extrajudicial fees claimed. … [132] In any case, even when the quantum is proven, the judge must assess its reasonableness. [ 59 ] In Iris, le Groupe Visuel (1990) inc. v . 9105-1862 Québec inc., [30] Forget J. confirmed his thinking: [TRANSLATION] [77] The proof was made by a simple filing of invoices containing no details. 9105 Québec and Mr.

Duchemin chose not to waive solicitor-client privilege in order to prove the extrajudicial fees paid.

Solicitor-client privilege cannot exempt a party claiming extrajudicial fees from the other party from providing sufficient details to establish the nature of the services rendered, while protecting solicitor-client privilege. [ 60 ] In the case at bar, the evidence is silent as to the extrajudicial fees claimed. [ 61 ] Consequently, and although the Court grants the motion to dismiss and dismisses the motion to institute proceedings, no amount, apart from costs, is awarded to Labelle. [ 62 ] FOR THESE REASONS, THE COURT: [ 63 ] GRANTS the motion to dismiss; [ 64 ] DISMISSES the motion to institute proceedings brought by the Town of Boisbriand and Claude Prévost against Sylvain Labelle; [ 65 ] WITH COSTS. __________________________________ JIMMY VALLÉE, J.C.Q.

Mtre Jean-Philippe Desabrais Prévost, Fortin, D’Aoust, avocats For the plaintiffs

Mtre Armand Poupart Poupart & Poupart, avocats For the defendant Date of hearing: January 27, 2015