2011 QCCA 1485, 2011 QCCA 1485

Ouellet c. Tribunal administratif du Québec 2011 QCCA 1485 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021888-110 (500-17-064909-115) MINUTES OF THE HEARING DATE: August 12, 2011 THE HONOURABLE ALLAN R. HILTON, J.A. PETITIONER ATTORNEYS CAROLE OUELLET Mtre Babak Barin (ABSENT) BCF Mtre Vanessa Joannisse-Goulet (ABSENT) MERCIER LEDUC RESPONDENT ATTORNEY TRIBUNAL ADMINISTRATIF DU QUÉBEC Mtre Jean Leduc (ABSENT) LORANGER MARCOUX MIS EN CAUSE ATTORNEY PROCUREUR GENERAL DU QUEBEC ABSENT

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON JUNE 29, 2011 BY THE HON. CLAUDETTE PICARD FROM THE SUPERIOR COURT DISTRICT OF MONTREAL AND FROM A JUDGMENT RENDERED ON JULY 11, 2011 BY THE HON. GUYLÈNE BEAUGÉ OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: ——- HEARING Continuation of August 10, 2011 hearing. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] The applicant seeks leave to appeal two interlocutory judgments rendered by different judges of the Superior Court. [ 2 ] The first of them, rendered by Picard, J., granted in part a motion to disqualify Mtre François Munn, on the one hand, and Mtre Claude Leduc, on the other hand, from acting on behalf of the defendant TAQ and the plaintiff Carole Ouellet respectively concerning an issue that has arisen as to whether there was a verbal agreement between them with respect to the litigation that constitutes a transaction. [ 3 ] The second judgment, rendered by Beaugé, J., dismissed an application to disqualify all of the lawyers of the law firm of Loranger Marcoux, which is the firm at which Mtre Munn practices. [ 4 ] Insofar as the judgment of Picard, J. is concerned, it is argued that the judgment disqualifying Mtre Leduc is premature since it is not yet known whether he will have to testify.

Reliance is placed on

article 2870 C.C.Q. and the fact that Mtre Leduc made his position known immediately in writing denying he had agreed to an arrangement with Mtre Munn. [ 5 ] Under the scenario proposed by the applicant, if the application for leave is granted and the appeal is allowed, Mtre Leduc

would nevertheless be free to cross-examine Mtre Munn about conversations between them as to the existence of a transaction. Such a scenario is incompatible with the concept of objectivity of trial counsel and should not be countenanced. [ 6 ] Insofar as the judgment of Beaugé, J. is concerned, she properly stated the governing principles concerning the disqualification of a law firm, one of whose members has been disqualified. It may well be, as counsel for the applicant argues forcefully, that she nevertheless misapplied the principle.

That being said, the misapplication of a properly stated principle does not in and of itself give rise to leave being granted. [ 7 ] The underlying litigation between the parties relates to declaratory proceedings initiated by the applicant to determine whether the respondent is liable to pay her legal costs in relation to a complaint she has lodged with the Commission de la fonction publique based on alleged psychological harassment in the work place.

In the overall context of that litigation, the proposed issue arising out of the judgment of Beaugé, J., limited as it is, does not warrant an examination by the Court of Appeal. [ 8 ] FOR THESE REASONS, the motion for leave to appeal is dismissed with costs. ALLAN R. HILTON, J.A.