2019 QCCA 530, 2019 QCCA 530

Schmerer c. Silver 2019 QCCA 530 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500-09-026706-176, 500-09-026727-172 (540-17-005183-115, 540-17-008228-131) MINUTES OF THE HEARING DATE : February 25, 2019 CORAM : THE HONOURABLE nicholas kasirer , J.A. robert m. mainville , J.A. jocelyn f. rancourt , J.A. N o : 500-09-026706-176 (540-17-005183-115) APPELLANT COUNSEL SHARON SCHMERER Mtre MICHAEL N. BERGMAN Mtre KADRIYE MERVE BILGIC (Bergman & Associé

s) RESPONDENT COUNSEL JEFFREY SILVER IN PERSON IMPLEADED PARTIES SÉCUR FINANCE INVESTISSEMENT 500 S. E. C. REGISTRE DES DROITS PERSONNELS ET RÉELS MOBILIERS ABSENT

N o : 500-09-026727-172 (540-17-008228-131) APPELLANT JEFFREY SILVER IN PERSON RESPONDENT COUNSEL SHARON SCHMERER Mtre MICHAEL N. BERGMAN Mtre KADRIYE MERVE BILGIC (Bergman & Associé

s) IMPLEADED PARTIES COUNSEL SERGE ROBINETTE Mtre PASCALE CARON ( Absent ) (Donati Maisonneuve s.e.n.c.r.l.) SÉCUR FINANCE INC. SIFABEN HYPOTHÈQUE S. E. C. Mtre nathalie charron ( Absent ) (Hébert Miller Avocats s.e.n.c.r.

l) GIUSEPPE RUSSOTTI CARMELO STEFANO RUSSOTTI JOHANNE SERPONE, LE GROUPE SYNDIC DE FAILLITE INC., acting as trustee in bankruptcy for 9085-8598 Québec Inc. SÉCUR FINANCE INVESTISSEMENT 500 S. E. C. REGISTRE DES DROITS PERSONNELS ET RÉELS MOBILIERS ABSENT On appeal from a judgment rendered on February 27, 2017 by the Honourable Justice Serge Gaudet of the Superior Court, District of Laval. DESCRIPTION : Professional Liability – Accountant – Fault – Inaccurate representation – Motion for postponement of appeal on the merits.

Clerk : Mihary Andrianaivo Courtroom : Antonio-Lamer HEARING 9:30 Start of the hearing. Both files 500-09-026706-176 and 500-09-026727-172 are jointly heard. Address by the Court to Mr. Jeffrey Silver pertaining to the latter’s motion for postponement. 9:35 Submissions by Mr. Jeffrey Silver regarding his motion for postponement. 9:41 Submissions by Mtre Michael N. Bergman. 9:48 Rebuttal by Mr. Jeffrey Silver. 9:50 Recess. 10:04 Resumption of the hearing. BY THE COURT : Ruling on Mr. Jeffrey Silver’s motion for postponement – See page 4. 10:11 End of the hearing.

Mihary Andrianaivo Clerk BY THE COURT JUDGMENT [ 1 ] Jeffrey Silver, who is respectively appellant and respondent in two appeals on the Court’s roll today, seeks a postponement of the hearings “for a period of six months”. Sharon Schmerer, respondent and appellant in the same two appeals, contests the motion on the principal grounds that it is not justified in the circumstances and that the purpose is purely dilatory. *** [ 2 ] Mr. Silver was represented by counsel in both files on appeal until January 4, 2019, at which time his lawyer was disbarred for a period of two months.

In his motion, which is supported by affidavit, the petitioner states that “on or about mid-January 2019” he was informed by his lawyer that the latter was having “some issues” with the Bar. On January 17, 2019, Mr. Silver filed

an act of non- representation in the Office of the Court for the two appeals in which he declared he would henceforth represent himself without the assistance of counsel. [ 3 ] In support of his motion, Mr. Silver states that at that time, he expected his former lawyer to file an application to postpone the hearings scheduled for February 25 “until [his attorney’s] issues with his professional order had been arranged”. Plainly that was not done. Mr.

Silver states further that on February 18, 2019, he learned from the Court that his appeals were still on the roll for today which prompted him to file the motion for postponement on his own. [ 4 ] Mr. Silver says he is not prepared to argue the appeals personally today and had no time to find another lawyer to act for him. He asks for a six-month postponement “to allow for my previous attorney to be reinstated and [/] or for me to be able to find a new attorney and afford him or her the time to present the present appeals”. [ 5 ] Respondent on the motion, Ms. Schmerer answers that Mr.

Silver had ample time to find a new lawyer between the time he filed the act of non-representation on January 17 and the filing of the motion to postpone. She states Mr. Silver’s request is a further instance of what she considers to be his unfair manipulation of the justice system and asks that the motion be dismissed. At the hearing, her

counsel asks that Mr. Silver’s motion be declared an abuse of procedure, justifying an award of $3,000 for extrajudicial costs incurred. *** [ 6 ] The circumstances are unusual. Mr. Silver’s explanations are, at best, adequate. A more diligent person, even without legal training, would not have relied on his lawyer who “had issues” with the Bar to file an application for postponement and, given the stakes, would have taken steps to determine that the matter had indeed been postponed prior to February 18, 2019. [ 7 ] That said, we feel bound to accept Mr.

Silver’s uncontradicted statement that he asked for the postponement as soon as he had personal knowledge that the appeals were still set to proceed on February 25, 2019. Given that Mr. Silver’s lawyer represented him at trial and prepared his written argument for the appeals, it would potentially be unfair to Mr. Silver to require him to plead the appeals this morning. [ 8 ] His request for postponement is granted by reason of these exceptional circumstances. [ 9 ] On the other hand, the request that the postponement be for a period of six months is plainly unreasonable. In his motion, Mr.

Silver indicated his willingness to be represented by his former lawyer (although he appears to have changed his position on this point this morning). From the information he filed in support of the motion, it appears that the lawyer’s period of disqualification from practice ends two months from January 4, 2019, i.e . on or about March 4, 2019. The appeals shall be managed with a view to setting dates for hearing at the earliest possible date thereafter, taking into account the availability of Ms. Schmerer and that of the Court. A date in the week of April 29, 2019 was proposed to the parties to which Mr.

Silver says he would not object. [ 10 ] The Court exercises its discretion to award legal costs on the motion to Ms. Schmerer. [ 11 ] While the motion should be granted in these extenuating circumstances in order to allow Mr. Silver to prepare his case, his failure to take reasonable steps to address the issue of the adequacy of his own representation caused unnecessary harm to the respondent.

His lack of diligence, in particular from the date he filed his act of non-representation (January 17, 2019) to date at which he filed the motion for postponement (February 18, 2019), required the respondent to incur unnecessary expenses, including those associated with preparation for the case on the merits today. It was incumbent on Mr. Silver, as of the date of the act of non- representation, to inform the Court and the other party that he wanted a postponement as soon as possible. Moreover, Mr.

Silver’s statement that he expected his former lawyer to file a motion for postponement, during the period of the latter’s disqualification and after Mr. Silver himself had declared to the Court that he was acting without counsel, defies all good sense.

The whole constitutes wrongful conduct that amounts to an abuse of procedure. [ 12 ] In these exceptional circumstances and pursuant to articles 51 and 54 C.C.P ., the Court exercises its discretion to condemn the petitioner to pay a sum of $500 to the respondent, in addition to legal costs, as compensation for part of the extrajudicial fees associated notably with appearance by counsel for the respondent at today’s hearing.

FOR THE AFOREMENTIONED REASONS , the Court: [ 13 ] GRANTS the motion in part; [ 14 ] POSTPONES the hearing of the appeals until May 2, 2019 at 9:30 a.m. in the Pierre-Basile Mignault Courtroom of the Court of Appeal; [ 15 ] WITH LEGAL COSTS on the motion in favour of the respondent Schmerer; [ 16 ] DECLARES the conduct of the petitioner Silver to be an abuse of procedure and CONDEMNS him to pay to the respondent a sum of $500 in addition to legal costs. nicholas kasirer, J .A. robert m. mainville , J.A. jocelyn f. rancourt , J.A.