2022 QCCA 198, 2022 QCCA 198

Collins c. City of Gatineau 2022 QCCA 198 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-700066-210 ( 550-17-012173-215 ) MINUTES OF HEARING DATE: February 7, 2022 CORAM: THE HONOURABLE JULIE DUTIL, J.A. STEPHEN W. HAMILTON, J.A. LUCIE FOURNIER, J.A. APPELLANT R. MAXINE COLLINS PRESENT AND U nrepresented (BY VIDEOCONFERENCE) RESPONDENT COUNSEL CITY OF GATINEAU Mtre JEAN-CHARLES GENDRON (BY VIDEOCONFERENCE) ( Painchaud Leblanc Bertrand ) On appeal from a judgment rendered on November 22, 2021 by the Honourable Anne-France Gagnon of the Superior Court , District of Gatineau . DESCRIPTION: Application for removal of respondent’s motion record (articles 348 C.C.P .,

article 30 of the Civil Practice Regulation ( Court of Appeal ); Application for leave to file in the Digital Office written submissions ( Direction G-9 ); Request for hearing of respondent’s motion via videoconference. Application to dismiss an appeal (Article 365 C.C.P .) Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING

10:31 Commencement of the hearing. Identification of counsel. 10:32 Submissions by Ms. Collins on appellant’s motion. 10:37 Submissions by Mtre Gendron on appellant’s motion 10:42 Reply by Ms. Collins. 10:45 Recess of the hearing. 10:51 Resumption of the hearing. 10:51 By the Court: judgment. 10:53 Mtre Gendron has nothing to add to his motion to dismiss the appeal. 10:54 Submissions by Ms. Collins. 11:14 Reply by Mtre Gendron. He withdraws his request to declare the appeal abusive and vexatious. 11:17 Recess. 11:22 Resumption of the hearing. 11:22 By the Court: judgment – see page 3.

Robert Osadchuck, Clerk at the hearing JUDGMENT 1. On the Appellant’s motion : [ 1 ] The Appellant presented a motion in which she seeks: 1) the “removal” of the Respondent’s motion record, 2) an order scheduling the hearing of her motion by videoconference, and 3) waiver of the requirement to file a paper copy of her motion. [ 2 ] The Appellant filed paper versions of her documents. Further, the hearing took place by videoconference. Those two aspects of her motion have been resolved. [ 3 ] As for her motion to remove the Respondent’s motion record, it is unfounded.

The basis of her motion is that the Respondent did not file its representation statement. In fact, that statement was filed by error in the office of the Superior Court in Gatineau on December 15, 2021 and a copy of that statement was served by e-mail on the Appellant on the same date. It appears that it was also filed in the office of the Court of Appeal later on the same date, although it is not listed in the plumitif . [ 4 ]

Section 30 of the Court’s Civil Practice Regulation deals with the failure to file a representation statement. It provides that if the statement is filed late, the clerk may accept the filing subject to conditions that he may determine. Assuming that it was filed late, the Appellant did not suffer any prejudice and the clerk accepted the filing. Further, she received service of the motion to dismiss her appeal on December 20, 2021. FOR THESE REASONS, THE COURT: [ 5 ] DISMISSES the Appellant’s motion, with legal costs. 2.

On the Respondent’s motion : [ 6 ] The Respondent seeks the dismissal of the appeal filed by the Appellant against a judgment rendered on November 22, 2021 by Justice Anne-France Gagnon of the Superior Court for the District of Gatineau. Justice Gagnon had granted the Respondent’s motion to dismiss the Appellant’s judicial review proceeding, on the basis that the Appellant was seeking judicial review of another judgment of the Superior Court rendered on July 27, 2021 by Justice Jean Faullem.

He had granted the Respondent’s motion to dismiss the Appellant’s originating application seeking various orders and damages against the Respondent, because of her repeated failures to submit to an examination before plea. [1] [ 7 ] The motion to dismiss the appeal is well founded. [ 8 ] First, the appeal is irregularly formed. An appeal from a judgment rendered on an application for judicial review requires leave to appeal under

Article 30, subparagraph 2(5) of the Code of Civil Procedure . It does not matter for the purposes of that provision that the application for judicial review was dismissed on a preliminary motion and not on its merits. [2] [ 9 ] The Appellant’s proceeding in first instance was entitled “Application for Judicial Review [Action in Nullity]” and it constituted a request to set aside the judgment rendered by Justice Falleum on the basis of factual misstatements, procedural inequities and an excess of jurisdiction. It is in the nature of an application for judicial review.

After the Respondent made its motion to dismiss the application, the Appellant submitted an amended application in which she changed the title to “Application to Revoke - Nullity” under

Article 345 C.C.P. , although she did not change any of the allegations or the conclusion. Further, she maintained before Justice Gagnon that she was not abandoning her application for judicial review and that she wanted Justice Gagnon to consider the amended application if she dismissed the application for judicial review. Justice Gagnon concluded that the nature of the Appellant’s application remained an application for judicial review and she rejected the amendment. [ 10 ] For the purposes of determining the Appellant’s right to appeal, we must ascertain the nature of the proceeding that was

dismissed. In our view, it was an application for judicial review and therefore the Appellant’s failure to ask for leave to appeal is fatal. [ 11 ] Moreover, in any event, the appeal from Justice Gagnon’s judgment has no reasonable chance of success. The Appellant’s recourse against Justice Falleum’s judgment was an appeal to this Court, not an application for judicial review to another judge of the Superior Court. Justice Gagnon was right to dismiss the Appellant’s application.

FOR THESE REASONS, THE COURT: [ 12 ] GRANTS the Respondent’s motion to dismiss the appeal, with legal costs; [ 13 ] DISMISSES the appeal, with legal costs; JULIE DUTIL, J.A. STEPHEN W. HAMILTON, J.A. LUCIE FOURNIER, J.A.