2014 QCCA 1749, 2014 QCCA 1749

G.C. c. Quebec (Public Curator) 2014 QCCA 1749 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF MONTREAL No: 500-09-024484-149 (500-17-080359-139) MINUTES OF THE HEARING DATE : September 2 nd , 2014 THE HONOURABLE MADAM JUSTICE MARIE-FRANCE BICH, J.A. PETITIONER COUNSEL G. C. In person RESPONDENT COUNSEL THE PUBLIC CURATOR OF QUEBEC, as curator to the person and property of Ms. G. C. (G.) Mtre GUY RÉGIMBAL ( The Public Curator of Quebec ) IMPLEADED PARTY COUNSEL ATTORNEY GENERAL OF QUEBEC Mtre SYLVIE GILBERT Mtre LUC-VINCENT GENDRON-BOUCHARD ( Bernard, Roy ) OTHERS

Mtre ANN MARGARET SODEN Mtre MICHAEL D. WORSOFF (Campbell Cohen Worsoff) DESCRIPTION : Amended motion for leave to appeal a judgment rendered on May 7, 2014 by the Honourable Mark J. Peacock of the Superior Court, district of Montreal (Art. 29(1)(2), 511 C .p.c. ). Requête aux fins de désigner un procureur afin de représenter une majeure protégée. (Art. 394.1 C .p.c .) (Arts 256, 258, 261, 281 et 282 CCQ ) Requête du Curateur public du Québec pour présenter une nouvelle preuve indispensable. (Art. 509.1 C .p.c .) Clerk : Asma Berrak Courtroom : RC.18 HEARING 10:47 Commencement of the hearing.

Identification of counsel. Submission by Mtre Worsoff. 10:48 Comment by the Judge. 10:57 Submission by Mtre Régimbal. 11:01 Submission by Mtre Gilbert. 11:18 Submission by Mtre Soden. 11:25 Submission by Mtre Worsoff. 11:32 Discussion between the Judge and Madam C.. 11:36 Comment by the Judge. 11:38 Suspension. 12:48 Resumption. Judgment on the first part of the “ Requête aux fins de désigner un procureur afin de représenter une majeure protégée ’’ – see page 5. 12:54 Intervention by Mtre Régimbal. 12:56 Recess. 14:01 Resumption.

Submission by Mtre Worsoff. 14:05 Comments by Mtre Régimbal. 14:09 Submission by Mtre Worsoff.

14:12 Recess. 14:16 Resumption. Submission by Mtre Worsoff. Mtre Worsoff will withdraw his motion for leave to appeal upon the undertaking by the respondent Public Curator of Quebec to discontinue his present proceedings before the Superior Court in order to start the proceedings anew. 14:17 The respondent Public Curator of Quebec undertakes to discontinue his suit against the petitioner and, if necessary, from the judgment rendered by Mr. Justice Wilbrod Claude Décarie on April 2, 2014, insofar as this judgment purports to authorize the sale of the petitioner's property.

He will then file a new introductory motion for authorization to sell the property in question. 14:19 Comment by the Judge. Conclusion of the hearing. Clerk BY THE JUDGE JUDGMENT Requête pour preuve nouvelle (Motion to adduce new evidence) [ 1 ] In the circumstances, it is not necessary to decide the motion, and I shall simply acknowledge the fact that the petitioner is now under the curatorship, rather than tutorship, of the respondent. Requête aux fins de désigner un procureur afin de représenter une majeure protégée – première

partie (Motion to appoint counsel to a protected person of full age – first part) [ 2 ] Pursuant to art. 394.1 C .C.P. , I have to decide whether or not the petitioner, who is now under the curatorship of the respondent and was previously under the latter's tutorship, ought to be represented by separate counsel for the purposes of an amended motion for leave to appeal the judgment rendered by the Superior Court, District of Montreal (the Honourable Mark J.

Peacock), on May 7, 2014. [ 3 ] The Attorney General of Quebec, having intervened in the file, explained the legal framework within which this question should be answered. * * [ 4 ] The respondent, in a two-part motion, seeks the appointment of counsel to the petitioner, and also suggests a proceeding by which the file is to be returned to the Superior Court for the action to be introduced anew, with the petitioner duly represented by counsel. [ 5 ] I will only adjudicate the first part of this motion, and leave the second part to be argued later, together with the petitioner's amended motion for leave to appeal. [ 6 ] The respondent asks that I acknowledge and confirm the appointment of Mtre Ann Margaret Soden as counsel for the petitioner, upon certain conditions. * * [ 7 ] Considering his legal status as curator of the petitioner, the respondent was allowed to mandate a lawyer to represent her and to suggest that Mtre Soden be appointed in that capacity, pursuant to art. 394.1 C .C.P.

It was then entirely appropriate for Mtre Soden to meet with the petitioner, as she did a few weeks ago. Her comments before me this morning dispel any notion that she could be an agent of the respondent or act in the latter's interest rather than those of the petitioner. [ 8 ] For her part, in the course of the hearing, the petitioner indicated that she would actually prefer to act without the assistance of a

lawyer, but I understand from her answers this morning that she has resigned herself to be represented by counsel (which is a wise decision considering the nature of the file). She does not wish, however, to be represented by Mtre Soden and would rather be represented by Mtre Michael D. Worsoff (who also explained the manner in which he was contacted by the petitioner).

I understand that Mtre Worsoff was introduced to the petitioner by friends or family members (whose involvement and interests in the matter, as noted in my judgment of July 11, 2014, para. 5, remain unclear), but that he is able to distance himself entirely from these persons in order to act for and in the best interest of the petitioner exclusively. [ 9 ] Having considered the matter, I am of the view that the situation clearly requires that counsel be appointed to the petitioner, pursuant to art. 394.1 C .P.P. , for the purposes of seeking permission for leave to appeal the Superior Court's judgment of May 7, 2014, and for the second part of the respondent's motion.

Considering my limited powers as a motions judge and the restrictive wording of art. 394.1 C .P.P. (which refers to the “Court”/“ tribunal ” and not a judge), were I to grant leave, the Court will have to reassess the necessity of appointing counsel to the petitioner for the purposes of the appeal itself. [ 10 ] Considering the manner in which the petitioner expressed her will, I believe, however, that Mtre Worsoff should be appointed as her attorney for the sole purposes of the amended motion for leave to appeal and the second part of the respondent's motion.

The conditions of his appointment will be those that are set out in the fourth and fifth conclusions of the respondent's “ requête aux fins de désigner un procureur afin de représenter une majeure protégée ”. FOR THESE REASONS, I: [ 11 ] GRANT the respondent's “ requête aux fins de désigner un procureur afin de représenter une majeure protégée ”, but only insofar as it concerns the appointment of counsel to the petitioner, as the rest of the motion (relating to a possible return of the file to the Superior Court) will be argued later today; [ 12 ] APPOINT Mtre Michael D.

Worsoff counsel to the petitioner for the purposes of the latter's original and amended motions for leave to appeal the judgment rendered by the Superior Court of May 7, 2014, and for the second part of the respondent's motion; [ 13 ] ORDER that the extrajudicial fees of Mtre Worsoff be those provided for in the Tariff of fees for professional services provided to the Governement by advocates or notaries , RLRQ,

chapter C-65.1, r. 11 (previously R.R.Q., 1981, c. A-6, r. 31, D. 234-84), up to a maximum of $1,000; [ 14 ] ORDER that the extrajudicial fees of Mtre Worsoff be paid by the respondent, out of the petitioner's patrimony except in relation to the present hearing, considering that the issues are of public order; [ 15 ] Without costs.

Petitioner's amended motion for leave to appeal and second part of respondent's “ requête aux fins de désigner un procureur afin de représenter une majeure protégée ” [ 16 ] The parties having conferred through counsel, they agree to start the case afresh in the Superior Court and to take all steps necessary to do so.

Consequently, 1° the petitioner will withdraw her original and amended motions for leave to appeal the judgment of the Superior Court dated May 7, 2014; 2° the respondent will discontinue his suit in file 500-17-080359-139 and will then file a new motion to obtain the authorization to sell the petitioner's property.

Furthermore, the respondent agrees that the petitioner shall be represented by counsel for the purposes of this new motion. [ 17 ] In another respect, there is some disagreement over the meaning of the judgment rendered on April 2, 2014 by the Superior Court, District of Montreal (the Honourable Wilbrod Claude Décarie): did said judgment authorize the respondent to sell the property at stake or recognize his right to do so without judicial authorization? It is my understanding that it did not and that it simply dismissed the contestation filed at that time by the petitioner's son.

It is also to be noted that if Décarie J. had authorized the sale, there would have been no reason for Peacock J.'s subsequent judgment dismissing the petitioner intervention in a file that would have been already decided on the merits. In any event, the respondent agrees to renounce any right to sell the property that may have been conferred upon him by Décarie J.'s judgment and to file any proceedings necessary to give effect to this undertaking.

FOR THESE REASONS, I: [ 18 ] Acknowledge the agreement of the parties; [ 19 ] ACKNOWLEDGE the withdrawal of petitioner's original and amended motions for leave to appeal the judgment of the Superior Court rendered on May 7, 2014; [ 20 ] ACKNOWLEDGE that the respondent shall discontinue his suit in file 500-17-080359-139, file a new motion for authorization to sell the petitioner's property and do everything necessary in order to allow the questions raised by this motion to be argued anew, including the renunciation of any right to sell the property that may have been conferred upon him by the Superior Court's judgment of April 2, 2014; [ 21 ] ACKNOWLEDGE the fact that the respondent recognizes the right of the petitioner to be represented by counsel in accordance to art. 394.1 C .P.P. for the purposes of his future motion for authorization to sell the petitioner's property;

[ 22 ] Without costs. MARIE-FRANCE BICH , J.A.