2019 QCCA 1107, 2019 QCCA 1107

Papadakis c. Papadakis 2019 QCCA 1107 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028230-191 (500-17-098368-171) MINUTES OF THE HEARING DATE: June 18, 2019 THE HONOURABLE MARIE-FRANCE BICH, J.A. APPELLANT COUNSEL JOHN PAPADAKIS Mtre Audi Gozlan (Audi Gozlan) RESPONDENT COUNSEL MANOLI PAPADAKIS Mtre ELYSIA SCENNA (Alain Mongeau, Avocats) DESCRIPTION: Application for permission to submit a memorandum on a question of law (s. 374 C.C.P ) . Clerk: Stephane Robinson Courtroom: RC-18 HEARING

9:30 Commencement of the hearing. Identification of counsel. 10:39 Submissions by Mtre Gozlan. 10:40 Mtre Gozlan informs the Judge of an error that he has discovered in his Application. The application’s first conclusion should be replaced by: “ GRANT the Application”. Exchanges between the Judge and Mtre Gozlan. 10:53 Submissions by Mtre Scenna. 10:54 The Application submitted by Mtre Gozlan is not contested by Mtre Scenna. 10:55 Recess of the hearing. 11:08 Resumption of the hearing. 11:09 Exchanges between the judge and Mtre Gozlan. 11:09 BY THE JUDGE : judgment – see page 3. 11:13 Conclusion of the hearing. (

s) Stephane Robinson Clerk BY THE JUDGE JUDGMENT [ 1 ] Pursuant to art. 368 C.C.P. , the applicant seeks to be authorized to file a memorandum instead of a brief and to be exempted from the obligation to file a full transcript of the depositions and evidence before the trial judge. He alleges that the appeal raises a question of law only and does not require such transcript nor a brief. Here are the conclusions of his application: FOR THESE REASONS, MAY IT PLEASE THE COURT TO: GRANT the application; AUTHORIZE the Appellant to be exempt from filing a brief and stenographer’s notes; AUTHORIZE the Appellant to file a memorandum considering that the Appeal is based on the

interpretation of

Section 1162 paragraph 3 C.C.Q. ; THE WHOLE, costs to follow. [ 2 ] Considering the nature of the appeal and the limited character of the questions at stake, the parties, through counsel, agree that memoranda are appropriate, instead of 30-page briefs.

This is a reasonable suggestion in the circumstances. [1] [ 3 ] The parties also agree that these memoranda shall include an argument of no more than 20 pages. [2] [ 4 ] As far as the transcripts are concerned, however, considering the scarce information contained in the application and its annexes, the undersigned is not in a position to exempt the appellant from filing them nor would it be wise to do so. [ 5 ] Sections 45 and 55 of the Civil Practice Regulation (Court of appeal) , state: 45. Schedules . The appellant’s brief shall consist of 3 schedules, which reproduce: —

Schedule I: the judgment under appeal (including reasons) and, in the case of judicial review or appeal, the impugned decision; —

Schedule II: (

a) the notice of appeal (Art. 352), and, as the case may be, the application for leave to appeal (Art. 357) and the judgment granting leave; (

b) the proceedings of the joined issue and the minutes of the hearing on the merits in first instance; (

c) all applicable statutory provisions other than those in the Civil Code of Québec and the Code of Civil Procedure; —

Schedule III: all and only those exhibits and depositions necessary for the Court to decide the issues in dispute (Art. 372, para. 1) .

55. Format . The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations . [Emphasis added] [ 6 ] In Droit de la famille — 112606 , [3] the Court explained the exact meaning of the requirement that “all and only those exhibits and depositions necessary for the Court to decide the issues in dispute” be included in either the appellant’s brief or memorandum, and there is a long line of cases to the same effect. [4] That being said, according to the principle set out in the first para. of art. 19 C.C.P. (“the parties control the course of their case…”), the decision on this matter, in the present case, is best left to the parties, and primarily to the appellant. [ 7 ] As far as the date of filing of the memoranda is concerned, the appeal having been filed on April 8, 2019, the appellant will have to file his memorandum on July 8, 2019 at the latest, pursuant to art. 373 C.C.P.

Respondent’s counsel agrees to file her memorandum 45 days later. THEREFORE, THE UNDERSIGNED: [ 8 ] GRANTS the application; [ 9 ] ORDERS the appellant, after having notified a copy upon the respondent, to file in the Office of the Court, no later than July 8, 2019, five copies of a written argument not exceeding 20 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, depositions or excerpts therefrom, etc.) shall be attached; [ 10 ] ORDERS the respondent, after having notified a copy upon the appellant, to file in the Office of the Court, 45 days after the filing of the appellant’s memorandum, five copies of a written argument not exceeding 20 pages and of his supplementary documents; [ 11 ] [ 12 ] DIRECTS the parties’ attention to

section 376 C.C.P. and

article 55 of the Civil Practice Regulation (Court of Appeal) , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format.

The memorandum shall include a title page, a table of contents and be paginated consecutively. The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 13 ] REFERS the file to the Master of the Rolls to determine the date of a hearing of 80 minutes in duration (40 minutes for each party); [ 14 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities.

Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches. The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted; [ 15 ] THE WHOLE , without legal costs. MARIE-FRANCE BICH , J.A.