2014 QCCA 1349, 2014 QCCA 1349

G.C. c. Quebec (Public Curator) 2014 QCCA 1349 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024484-149 (500-17-080359-139) DATE: JULY 11, 2014 PRESIDING: THE HONOURABLE MARIE-FRANCE BICH, J.A. G. C. PETITIONER – intervening party v. PUBLIC CURATOR OF QUEBEC, in his quality as tutor to the person and property of Ms. G. C. (G.) RESPONDENT – plaintiff JUDGMENT [ 1 ] The petitioner, an elderly person (88), is under the supervision of the respondent pursuant to

article 285 C.C.Q. With the consent of two of the petitioner's adult children [1] , apparently, the respondent petitioned the Superior Court for permission to sell an immoveable (a triplex) that she owns, in which she does not reside and which costs she allegedly can no longer afford. The respondent's motion rests on articles 262 and 1305 C.C.Q. [ 2 ] The petitioner opposes the sale of her property and she filed a declaration of intervention to that effect, pursuant to

article 209 C.C.P. , seeking the appointment of a tutor ad hoc , in the person of Mr. B. M., to protect her interests.

Among other things, she alleged that, through the respondent, she has the means to support herself and pay the expenses related to her property; she also alleged that “[a]n incorrect evaluation of the immovable has knowingly been submitted to the court by Plaintiff to enable a cheap disposal of Intervenant's property at significantly less than its true value” (para. 15 of the declaration of intervention). [ 3 ] The respondent in his turn filed a motion entitled “Opposition to intervention (Article 210 C.C.P.) Motion to reject an abusive proceeding (Articles 2, 20, 46, 54.1 and 165.4 C.C.P.)”.

On May 7, 2014, the Superior Court, district of Montreal (the Honourable Mr. Justice Mark G. Peacock), granted the opposition in part and dismissed the petitioner's declaration of intervention.

He declined to declare that the intervention was abusive and dismissed the respondent's request that the petitioner be declared a vexatious litigant. [ 4 ] The petitioner now seeks to appeal the dismissal of her declaration of intervention, on the basis that, in the circumstances described in her amended motion for authorization to appeal, she is entitled to intervene in a matter that concerns and affects her directly and to require that a tutor ad hoc be appointed in order to protect her interests against the respondent. [ 5 ] The file that I have before me is difficult to comprehend for it is in a state of disarray that the parties were unable to dispel satisfactorily.

A certain number of persons appear to gravitate around the petitioner, persons whose interests in the matter are unclear.

The petitioner herself, whom I heard, expressed herself with ease but not in an entirely coherent manner (due, in part, most certainly, to the circumstances and the context of a courtroom), and with a limited grasp of the juridical debate, which is, of course, entirely understandable. [ 6 ] That being said, the file raises the question of the manner in which the courts should treat the elderly person who is under tutorship ( i.e. who has or appears to have some residual capacity to act in person) and who seeks to institute legal proceedings or intervene in legal proceedings in order to oppose her tutor's actions (and who may want to appeal the determination of a court of first instance).

Considering the regime of tutorship (art. 285 and ff. C.C.Q. ), is this person totally incapable of acting for herself or to request the assistance of an attorney? In such situation, how is the tribunal (including this court) to apply articles 394.1 and ff. C.C.P. (including art. 394.2, if the situation requires it)?

Are sections 1, 6 or 48 of the Charter of human rights and freedoms relevant to the debate in any manner? [ 7 ] These questions concerning the application of provisions of public order, and the petitioner not being in a position, obviously, to argue the matter from a legal point of view, I deem it preferable, pursuant to

article 97, first paragraph, C.C.P. , to have the proceedings and the present judgment served upon the Attorney General of Quebec, who may choose to intervene according to

article 98 C.C.P. In the meantime, the hearing of the petitioner's motion will be deferred to September 2, 2014 . At the hearing, I advised the parties that I was considering the possibility of resorting to

article 97 C.C.P. : unsurprisingly, the petitioner seemed to agree; the Public Curator's counsel was not opposed to the proposal, although I understood that he does not believe that it will be very useful. [ 8 ] After careful consideration of the matter, and while I concede that the situation is quite unusual, as it involves the Public Curator, a bona fide public officer, I am of the view that this is nevertheless the best course of action in the circumstances.

FOR THESE REASONS, I: [ 9 ] SUSPEND all appeal proceedings in the present file; [ 10 ] ORDER the respondent (Public Curator) to serve on the Attorney General of Quebec (c/o M e Marie-André Thomas), at the latest on July 18, 2014, the petitioner's “motion for authorization to appeal” and “amended motion for authorization to appeal” and all documents attached thereto; [ 11 ] POSTPONES to Tuesday, September 2, 2014 , 9:30 am ( room RC.18 ) the hearing of said motions; [ 12 ] The whole without costs. MARIE-FRANCE BICH, J.A. Ms. G. C. In person Petitioner Mtre Saturnino Gennaro Iadeluca Iadeluca, Iadeluca For the respondent Public Curator of Quebec Date of hearing: July 9, 2014