2011 QCCA 1122, 2011 QCCA 1122

Al Imam c. World Assurance Inc. 2011 QCCA 1122 COURT OF APPEAL CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-09-021720-115 ( 500-17-061527-100 ) MINUTES OF THE HEARING DATE: June 15, 2011 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER ATTORNEY YOUSEF AL IMAM Mtre Nathalie Bédard DONATI MAISONNEUVE RESPONDENT ATTORNEY WORLD ASSURANCE INC. Me Claude Pelletier HEENAN BLAIKIE

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON APRIL 29, 2011, BY THE HON. MICHELINE PERRAULT FROM THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:25 Continuation of June 14, 2011, hearing. BY THE JUDGE. Judgment – See page 3. Annick Nguyen Clerk

JUDGMENT [ 1 ] During the course of proceedings on the main action brought against him,Yousef Al Imam filed a motion to have the law firm Heenan Blaikie declared ineligible to act as advocates for the plaintiff World Assurance inc. The Superior Court, District of Montreal (the Honourable Micheline Perrault), dismissed that motion in an interlocutory judgment rendered on April 29, 2011. The dispute as to the ineligibility of the firm arose in connection with proceedings instituted to enjoin Mr.

Al Imam from acting in breach of a non-competition clause in a unanimous shareholders agreement relating to World Assurance inc. and signed by himself, Hassan Hanano and Fouad Alghanim and Sons Co. [ 2 ] Heenan Blaikie is acting for the respondent in the principal action. Mr. Al Imam submits that the firm is in conflict of interest because it acted for the respondent, Mr. Hanano and himself in the preparation of the shareholders’ agreement. Given that the

interpretation of the agreement is central to the outcome of the action taken against him, the firm is precluded from acted on behalf of the respondent by the rules in the Code of Ethics of Advocates . In the alternative, Mr. Al Imam affirms that he intends to call members of the firm as witnesses in the main action, which precludes those persons and the firm from acting as advocates in the case. [ 3 ] In seeking leave to appeal, Mr. Al Imam argues that the motions judge erred in fact and in law by concluding that Heenan Blaikie did not represent him when the firm prepared the shareholders’ agreement.

The judge was mistaken in holding that the firm acted exclusively for the respondent company (paras [13] and [20]). Mr. Al Imam's argument is based on documents submitted in first instance and testimony that, he says, indicates that the principal lawyer involved from the firm was in fact acting for him as well. He submits that the judge neglected to consider a “clear admission” made by shareholder Hanano that the lawyer acted for both Mr. Hanano and himself.

He argues further that the judge was mistaken to consider as relevant discussions that the two shareholders had with another lawyer concerning the agreement. [ 4 ] At the hearing before me, counsel for Mr.

Al Imam argued that it made no sense to say that Heenan Blaikie only represented the company given that the purpose of the shareholders' agreement that it was charged to draft was to regulate affairs between and among shareholders. * * * * * [ 5 ] A judgment that dismisses an application to declare an advocate ineligible to act for his or her client is, in circumstances like the present case, an interlocutory judgment subject to

article 29 C.C.P. for which leave to appeal may be granted by a judge of this Court. [1] In instances in which the pursuit of justice so requires, leave has been granted by judges sitting in chambers on these matters under

article 511 C.C.P. [2] [ 6 ] In this case, however, the petitioner has not convinced me that the pursuit of justice requires that leave be granted.

[ 7 ] The matters raised in support of the application for leave concern the

interpretation of the facts, and of documentary evidence understood in light of the facts, that the judge explicitly turned her mind to in the reasons she gave for judgment against Mr. Al Imam. In addition to disagreeing with Mr. Imam on each of the points that he now raises again on appeal, the judge also thought it important to observe that the petitioner provided no evidence of the legal counsel he was supposed to have received from Heenan Blaikie in respect of the preparation of the shareholders' agreement (paragr. [19]). The judge noted further that she preferred the testimony of Mr.

Hanano and Mtre Bélanger to that of Mr. Imam when they said that the law firm was acting exclusively for the company (paragr. [20]). [ 8 ] The nature of a shareholders' agreement, in itself, does not create a lawyer-client relationship between the lawyer who prepared it and the shareholder who is subject to it. The role that Heenan Blaikie took on in preparing the agreement needs to be measured in light of the facts and, as the judge observed, each case of this nature is different and the facts do not indicate here that the firm acted for Mr. Al Imam. [ 9 ] In sum, Mr.

Al Imam invites me to grant leave so that matters of fact, including whose account of the disputed events that took place in 2004 is to be preferred, can be reviewed by the Court. This is not the usual role of a court of appeal and the petitioner has failed to convince me that the pursuit of justice requires that leave be granted in this case for the Court to undertake that work here. [ 10 ] Mr. Al Imam also failed to convince the judge that the testimony of the two Heenan Blaikie lawyers involved would be necessary or useful in the principal proceedings.

The petitioner says the judge failed in particular to consider the usefulness of possible testimony by one of those lawyers, Mtre Bastien, who was present at the meeting of the directors at which it was decided that he was dismissed. [ 11 ] The judge explicitly recorded in her reasons that there were other participants at the meeting of directors who could establish, just as well as Mtre Bastien, what was said at that meeting (para. [30]). Mr. Al Imam’s motion for leave fails to indicate why this finding of the judge is mistaken.

Here again, he has not convinced me that the pursuit of justice requires that leave be granted. [ 12 ] FOR THESE REASONS , the undersigned: [ 13 ] DISMISSES the motion for leave to appeal, with costs. THE HONOURABLE NICHOLAS KASIRER, J.A.