2015 QCCA 303, 2015 QCCA 303

Poplawski c. McGill University 2015 QCCA 303 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024908-147 500-09-024909-145 (500-17-079672-138) DATE: February 13, 2015 THE HONOURABLE MARK SCHRAGER, J.A. SLAWOMIR POPLAWSKI APPLICANT – applicant v. MCGILL UNIVERSITY RESPONDENT – respondent JUDGMENT [ 1 ] The Applicant, Mr.

Poplawski, presents two motions seeking leave to appeal from two judgments of the Superior Court, district of Montreal (the Honourable Gérard Dugré) both rendered on December 2 nd , 2014 in the same file of the Superior Court, whereby: 1) the judge dismissed Applicant’s verbal motion for recusation and 2) the judge refused to receive Applicant’s amended motion in revocation of judgment. [ 2 ] At the beginning of the hearing before me, Applicant requested to postpone his motion in revocation because he was not ready and he needed to learn the outcome on the recusation matter in order to plead the revocation.

The postponement was refused. The motion in revocation was served in December and made presentable on January 28, 2015. Applicant had ample time to prepare his motion.

The outcome of the recusation matter has no material bearing on the pleading of the revocation matter. [ 3 ] Applicant’s lawsuit against Respondent seeking a condemnation of $999,000 was dismissed by judgment of the Superior Court (the Honourable Robert Mongeon) who granted Respondent’s motion to dismiss on August 5, 2014. [ 4 ] Applicant sought the revocation of that judgment and at the hearing before Justice Dugré on December 2 nd , 2014 made a verbal motion for the latter to recuse himself.

That verbal motion was dismissed in the following terms: ANNEX TO THE PROCÈS VERBAL OF DECEMBER 2, 2014 Decision on Verbal Motion for Recusation THE COURT is seized with a verbal motion for recusation by Mr. Poplawski during the hearing. The Court assumes that this motion for recusation is based on

Section 234 of the Code of Civil Procedure . Mr. Poplawski is asking the recusation of the undersigned because the Court said to him that it was not relevant to hear a witness at this stage of his motion to revoke a judgment rendered by Justice Mongeon on August 5, 2014, in the present file (reception); After considering

Section 234 of the Code of Civil Procedure and the representations of Mr. Poplawski, the Court is of the opinion that his motion for recusation is ill founded and should be dismissed. The dismissal of his motion would be without costs [ see 2012 QCCS 1324 ; leave to appeal dismissed: 2012 QCCA 1176 ]; WHEREFORE, THE COURT : DISMISSES the verbal motion for recusation

WITHOUT COSTS . [ 5 ] The right to appeal such a decision is governed by

Article 238 of C.C.P. as follows: 238 . A recusation motion is disposed of by the judge seized of the case. The judge's decision is subject to appeal in accordance with the rules applicable to appeals from an interlocutory judgment. 238 . La requête en récusation est décidée par le juge saisi de la cause. Sa décision est sujette à appel conformément aux règles applicables à l'appel d'un jugement interlocutoire. [ 6 ] Appeals of interlocutory judgments are governed by Articles 29 and 511 C.C.P. which read as follows: 29 . An appeal also lies, in accordance with

article 511, from an interlocutory judgment of t he Superior Court or the Court of Québec but, as regards youth matters, only in a matter of adoption: 29 . Est également sujet à appel, conformément à l'article 511, le jugement interlocutoire de la Cour supérieure ou celui de la Cour du Québec mais, s'il s'agit de sa compétence dans les matières relatives à la jeunesse, uniquement en matière d'adoption: (1) when it in part decides the issues; 1. lorsqu'il décide en

partie du litige; (2) when it orders the doing of anything which cannot be remedied by the final judgment; or 2. lorsqu'il ordonne que soit faite une chose à laquelle le jugement final ne pourra remédier; ou (3) when it unnecessarily delays the trial of the suit. 3. lorsqu'il a pour effet de retarder inutilement l'instruction du procès. However, an interlocutory judgment rendered during the trial cannot be appealed immediately and it cannot be put in question except on appeal from the final judgment, unless it disallows an objection to evidence based upon

article 308 of this Code or on

section 9 of the Charter of human rights and freedoms (chapter C-12), or unless it allows an objection to evidence. Toutefois, l'interlocutoire rendu au cours de l'instruction n'est pas sujet à appel immédiat et ne peut être mis en question que sur appel du jugement final, à moins qu'il ne rejette une objection à la preuve fondée sur l'article 308 de ce code ou sur l'

article 9 de la Charte des droits et libertés de la personne (chapitre C-12) ou à moins qu'il ne maintienne une objection à la preuve. Any judgment is interlocutory which is rendered during the suit before the final judgment. Est interlocutoire le jugement rendu en cours d'instance avant le jugement final. 511 . An appeal lies from an interlocutory judgment only on leave granted by a judge of the Court of Appeal if he is of opinion that the case is one that is contemplated in

article 29 and that the pursuit of justice requires that leave be granted ; the judge must then order the continuation or suspension of the proceedings in first instance. 511 . L'appel d'un jugement interlocutoire n'a lieu que sur permission accordée par un juge de la Cour d'appel, lorsqu'il estime qu'il s'agit d'un cas visé à l'article 29 et que les fins de la justice requièrent d'accorder la permission; il doit alors ordonner la continuation ou la suspension des procédures de première instance. (…) […] [ 7 ] It is not necessary to consider

Article 29 C.C.P. because I am of the opinion that the pursuit of justice does not require that leave be granted to appeal the recusation judgment for the following reasons. [ 8 ] As appears from the judgment, the ground of recusation invoked by Applicant was Justice Dugré’s refusal to hear a witness at the reception stage of a motion for revocation. Witnesses are not heard at such hearings [1] but in any event, such a ruling does not give rise to the recusation of a judge.

That a judge rules against a party does not make the judge partial. [ 9 ] In his motion for leave to appeal before me, Applicant has cited a litany of complaints about the judge’s behavior which Applicant urges, indicate the judge’s partiality. It is unclear whether any of this was raised before Justice Dugré. [ 10 ] Applicant mentions that the judge had not read his proceedings prior to the hearing and that the hearing lasted 70 minutes instead of the “guaranteed minimum 105 minutes”.

His proceedings and written submissions are replete with accusations of corruption and conspiracy in the legal system and particularly the courts. These assertions do not make out a case of bias against Justice Dugré. [ 11 ] Applicant referred to the “Péladeau” recusation case. He meant Quebecor inc. c. Société Radio-Canada . [2] The motion to recuse arose from the judge’s initial accusation that the plaintiff’s attorneys, in a defamation case, were somehow behind the appearance of a magazine

article about the case while the trial was ongoing and which the judge took as a tactic to intimidate him. This incident was followed by the judge’s refusal to adjourn for a few days following the death of the sister of the plaintiff’s lead attorney from which

refusal the recusation arose. The circumstances are very different in the present case where as appears from the judgment, the motion for recusation arose from the refusal to hear witnesses. I note in this Court’s reasons in Québecor that disagreeable and indelicate comments do not constitute grounds for recusation. [3] This speaks to the other grounds of recusation raised by Applicant before me. [ 12 ] Moreover, the burden to demonstrate bias is on Applicant who has provided no transcript of the proceedings to allow me to ascertain precisely what took place before the judge on the verbal motion of recusation.

However, given that the judge refused the reception of the motion in revocation on a single ground of law, (i.e. that Applicant had another recourse available) the interests of justice do not require that leave to appeal be granted on the motion for recusation. [ 13 ] The ground of law underpinning the judge’s refusal to receive the motion in revocation was that another useful recourse was available to Applicant, namely an appeal. As such, the basic requirement for revocation foreseen by

Article 483 C.C.P. was not met.

Therefore, the complaints cited by Applicant in his motion for leave to appeal the recusation judgment, even if true, had no bearing on the decision. [ 14 ] For the foregoing reasons, the motion seeking leave to appeal the recusation judgment will be dismissed. [ 15 ] As for the motion seeking leave to appeal the judgment refusing to receive the amended motion in revocation, this is a final judgment [4] and since the amount in issue exceeds $50,000, the judgment is susceptible of appeal without leave, [5] under Article 26 (1) C.C.P . [ 16 ] For this reason, the motion seeking leave to appeal the judgment refusing the reception of the motion of revocation of judgment will itself be dismissed but saving the Applicant’s recourse, if any, and without costs. [ 17 ] After the aforementioned two motions were placed on the roll, Applicant served two other documents presentable on the same day: (i) “Motion to nil/dismiss the judgment of 28.01.2015 that states “ two motions will be continued before the undersigned to February 10, 2015 ” as biased and violating legal C.p.c. rules but also Charter rights for fair trials – concerning the ‘ Applicant’s Request for Permission to Appeal Dismissed Motion for Recusation issued by the same judge on 03.12.2014’ and the ‘Applicant’s Request for Permission to Appeal Decision on Amended Motion in Revocation of Judgment (no #15) ’”; (ii) “Request to the Hon.

Nicole Douval (sic) Hesler supervising the Quebec Court of Appeal for admitting presented today motion of February 5, 2014 that was not accepted by the reception clerk”. [ 18 ] The second matter is not a motion and is moot. [ 19 ] As for the first matter mentioned above, Applicant did not appear on January 28, 2015 when the two motions for leave to appeal were on the roll for hearing. I was informed that he had called the clerk’s office stating that firemen were at his house or building and he could not attend.

I therefore, as a courtesy to him, continued the two motions to February 10, 2015, at which time I would be the presiding judge. Since I had already taken the time to read his motions, I continued them to a day when I, and not another colleague, was presiding with a view to using judicial resources efficiently. [ 20 ] Applicant has a problem with this and wants his motions referred to Justice Savard, J.A., who was sitting on January 14, 2015.

That was the date his motion for leave to appeal the recusation judgment of Justice Dugré was first made presentable by him but was continued by the Court to January 28, 2015, so that it would be heard by the same judge and at the same time as the motion seeking leave to appeal the revocation of judgment matter.

All of this is in the Court’s discretion with the view to administering justice in a manner that will use judicial resources efficiently. [ 21 ] Applicant’s motion to declare null my decision to continue his motion from January 28, 2015 to today has absolutely no merit and is dismissed, with costs. [ 22 ] FOR ALL OF THE FOREGOING REASONS, THE UNDERSIGNED : [ 23 ] DISMISSES Applicant’s motion for “permission to appeal the dismissed motion for recusation issued by the same judge on 03.12.2014”, with costs; [ 24 ] DISMISSES Applicant’s motion for “permission to appeal decision on amended motion in revocation of judgment”, saving Applicant’s recourse, if any, without costs; [ 25 ] DISMISSES Applicant’s “Motion to nil/dismiss the judgment of 28.01.2015 that states “two motions will be continued before the undersigned to February 10, 2015” as biased and violating legal C.p.c. rules but also Charter rights for fair trials – concerning the ‘Applicant’s Request for Permission to Appeal Dismissed Motion for Recusation issued by the same judge on 03.12.2014’ and the ‘Applicant’s Request for Permission to Appeal Decision on Amended Motion in Revocation of Judgment (no #15)’”, with costs.

MARK SCHRAGER, J.A. Slawomir Poplawski Personally Mtre Michèle Bédard Langlois Kronström Desjardins, s.e.n.c.r.l.

For Respondent Date of hearing: February 10, 2015