2016 QCCA 247, 2016 QCCA 247

Lichtman c. Royal Bank of Canada 2016 QCCA 247 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025833-153 (500-17-086825-158) DATE: FEBRUARY 5, 2016 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. JOAN LICHTMAN PETITIONER - Defendant v. ROYAL BANK OF CANADA RESPONDENT - Plaintiff JUDGMENT [ 1 ] Joan Lichtman, who is acting on her own behalf, seeks leave to appeal a case-management judgment of the Superior Court, District of Montreal, rendered on November 18, 2015 by the Honourable Mr. Justice Thomas M. Davis. The litigation between Ms.

Lichtman and the Royal Bank of Canada stems from the latter's unexpected closure of all her accounts and the enforcement of its security on her residential property (from which she carries on business). Ms. Lichtman contends that the Bank's action was illegal and caused her damages for which she has responded with a defence and cross-demand arising out of the circumstances and consequences of the accounts' closure.

Another major concern she expresses in her motion is the Bank's failure to furnish appropriate documentation justifying the extent of its claim. [ 2 ] Other Superior Court judges have had occasion to pronounce case-management and related judgments in this file that have not been to Ms. Lichtman's satisfaction. One of them, she says, did not even read her proceedings before adjudicating them. The judgment of which she now complains, however, deals principally with the conduct of the trial, and in particular identifies the witnesses Ms.

Lichtman may call to testify while at the same time, provisionally at least, excluding certain others. [ 3 ] It is apparent that in the portion of the judgment in which reasons are given, Davis, J. couched his language in conditional terms based on the information available to him.

For example, in considering "at this juncture", the testimony of which witnesses from the Bank the judge considered " may be relevant", the judge identified three Bank officials, and declared that another one " does not appear a useful witness". [ 4 ] As regards a police intervention in which she was involved, the judge observed that the nature of the allegations in Ms. Lichtman's cross-demand gave rise to only one Bank employee being necessary to offer relevant evidence. With respect to the police officers who Ms.

Lichtman sought to call, he considered that only one of the three she had listed " would appear to be necessary". [ 5 ] The judge's formal order, based on the information available to him at the time, while directory, does not bind the trial judge. Much of it is not cast in definitive terms.

It reads as follows: FOR THESE REASONS, THE COURT: DECLARES that, at this juncture, that Johanne Ardouin, April Schulze and Lorena Biason appear to be appropriate witnesses; DECLARES that Alain Castonguay does not appear a useful witness; DECLARES that in respect of the Somerled Branch, Olivier Décobert and only one of Dominique Cyr, Cheryl Penner, Rita Ottorini and Marouli Klironomou would appear to be necessary; DECLARES that in respect of the issue of a criminal complaint or a false arrest that only one of Peter Mandelos or Officers LaPlante and Houle would appear to be necessary; DECLARES that Gowling's Attorney, Mtre André Rivest, is not an appropriate witness given the issue of privilege; DECLARES that Defendant shall confirm to Plaintiff's Attorney the bank representatives which she requires at trial in conformity with the limitations set out in the present judgment;

ORDERS the Defendant to communicate her list of witnesses in respect of her cross-demand to Plaintiff's Attorney no later than November 27, 2015; PERMITS Plaintiff to serve documents on Defendant by telecopy or email; PERMITS Defendant to serve documents on Plaintiff at the telecopy number or email address of Plaintiff's Attorney; FIXES the matter for 3 days, Room 2.08, April 6, 7 and 8, 2016; Under the circumstances, WITHOUT COST. [Emphasis added] [ 6 ] It is not the practice of this Court to entertain case-management appeals except in the most exceptional circumstances, none of which are present here.

In this particular matter, the judge obviously did his best with the information at his disposal, without in any way binding the trial judge, who has the ultimate control over the witnesses to be heard, the documents subject to production, and the duration of the trial. That judge may also take account of any failure Ms. Lichtman might establish concerning her allegation of the Bank having failed in its duty of pre-trial document disclosure. [ 7 ] It is to that judge to whom Ms.

Lichtman's requests should be directed, and not to three judges of this Court who, at this juncture, are not as well suited to make the kinds of decisions regarding the conduct of the trial that she seeks to have made. FOR THESE REASONS, THE COURT : [ 8 ] DISMISSES the petitioner's motion for leave to appeal, without legal costs. ALLAN R. HILTON, J.A. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. Joan Lichtman In person Mtre Mary-Pier Marcheterre Gowling Lafleur Henderson For the respondent Date of hearing: February 1, 2016