2021 QCCA 1243, 2021 QCCA 1243

Succession de S.Ro. c. M.Ro. 2021 QCCA 1243 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029600-210 ( 500-17-096359-164 ) MINUTES OF HEARING DATE: August 10, 2021 THE HONOURABLE FRÉDÉRIC BACHAND, J.A. APPLICANT COUNSEL R. R., es qualitÉ liquidator of the estate of the late S. RO. Mtre NICHOLAS CHINE M s . Krystyn Pietras , stagiaire ( Stein & Stein inc. ) By videoconference RESPONDENTS COUNSEL M. RO. Mtre JEAN-FAUSTIN BADIMBOLI- ATABASAY ( DJB Avocats ) By videoconference H. F., es qualité liquidator of the estate of the late RO. FR. ABSENT AND UNREPRESENTED IMPLEADED PARTY COUNSEL L.

F., es qualité liquidator of the estate of the late RO. FR. Mtre DANIELLE OIKNINE ( OIKNINE & ASSOCIÉS LLP ) Absent DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on June 23, 20 21 by the Honourable Chantal Trem blay of the Superior Court , District of Montréal (Section 32 C.C.P. , CQLR, c. C-25.01 ( C.C.P. )).

Clerk at the hearing : Paola Garcia Rosario Courtroom: RC-18 HEARING 9:35 Commencement of the hearing. Identification of counsel. 9:36 Submissions by Mtre Chine. 9:53 Submissions by Mtre Badimboli. 10:08 Reply by Mtre Chine. 10:09 Discussion between the Court and the parties. 10:13 BY THE JUDGE: The hearing will be continued on August 12, 2021. The parties are excused from appearing in Court. 10:14 Conclusion of the hearing. Paola Garcia Rosario, Clerk at the hearing Succession de S. Ro. c.

M.Ro. 2021 QCCA 1243 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029600-210 (500-17-096359-164) MINUTES OF HEARING DATE: August 12, 2021 THE HONOURABLE FRÉDÉRIC BACHAND, J.A. APPLICANT COUNSEL R. R., es qualitÉ liquidator of the estate of the late S. RO. Mtre NICHOLAS CHINE M s. Krystyn Pietras , stagiaire ( Stein & Stein inc. ) Absent RESPONDENTS COUNSEL

M. RO. Mtre JEAN-FAUSTIN BADIMBOLI- ATABASAY ( DJB Avocats ) Absent H. F., ES QUALITÉ LIQUIDATOR OF THE ESTATE OF THE LATE RO. FR. ABSENT AND UNREPRESENTED IMPLEADED PARTY COUNSEL L. F., es qualité liquidator of the estate of the late RO. fR. Mtre DANIELLE OIKNINE ( OIKNINE & ASSOCIÉS LLP ) Absent DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on June 23, 2021, by the Honourable Chantal Tremblay of the Superior Court, District of Montréal (Section 32 C.C.P. , CQLR, c. C-25.01 ( C.C.P. )).

Clerk at the hearing : Paola Garcia Rosario Courtroom: RC-08 HEARING 9:33 Continuation of the hearing held on August 10, 2021. The parties were excused from appearing in Court. BY THE JUDGE: JUDGMENT – See page 3. Paola Garcia Rosario, Clerk at the hearing JUDGMENT [ 1 ] The applicant seeks leave to appeal from case management measures relating to two applications made further to a judgment rendered by the Superior Court on May 1, 2018. The first application was from the respondent and it sought the revocation of the May 1, 2018 judgment (article 345 C.C.P. ).

The second application was from the applicant and it sought the

summary dismissal of the respondent’s application (articles 51 et seq. C.C.P. ) on the ground that the matter was res judicata as a result of the March 19, 2021 judgment dismissing a prior application for revocation that the respondent had filed. [ 2 ] The first-instance judge dismissed the applicant’s argument to the effect that its application for

summary dismissal ought to be heard prior to any hearing on the respondent’s application for revocation. She ruled that both applications were to be heard together and

that, ahead of the hearing — which would last no more than one day —, the parties would have the opportunity to file sworn statements and to conduct out-of-court examinations. Notably, she pointed to the fact that this case had already required several court hearings and that the interests of justice would be best served by holding a single hearing on both pending applications. [ 3 ] The orders at issue are case management measures relating to the conduct of a proceeding within the meaning of

article 32 C.C.P. As such, they can only be appealed if they appear “unreasonable in light of the guiding principles of procedure/ déraisonnable au regard des principes directeurs de la procédure. ” That threshold is a high one, as appeals from orders falling within the ambit of

article 32 C.C.P. are rare and exceptional. [1] [ 4 ] The applicant argues that the impugned measures are contrary to both the principle of proportionality (article 18 C.C.P. ) and the requirement to confine the case to what is necessary to resolve the dispute (article 19 para. 2 C.C.P. ). He adds that they are also problematic in that they allow for a collateral attack upon the March 19, 2021 judgment dismissing the respondent’s previous application for revocation. [ 5 ] The applicant has not demonstrated that this is one of those exceptional cases where leave to appeal ought to be granted.

The case management measures at issue will not prevent the applicant from arguing that the respondent’s application for revocation constitutes a collateral attack upon a final judgment.

Furthermore, the record shows that the first-instance judge was mindful of the various considerations relevant to the further conduct of the proceeding, and I see no basis to find that the balance she struck appears unreasonable in light of the guiding principles of procedure. [ 6 ] In closing, I note that the first-instance judge was right to point to the number of judgments that have been rendered in this case since it began in 2016.

It bears recalling that the institutions of civil justice provide a public service whose resources are not unlimited. [2] In moving forward, the parties would be well-advised to pay close attention to their duty to co-operate (article 20 para. 1 C.C.P. ) as well as the other guiding principles of procedure (articles 17 et seq. C.C.P. ). FOR THESE REASONS, THE UNDERSIGNED: [ 7 ] DISMISSES the application for leave to appeal, with costs. FRÉDÉRIC BACHAND, J.A.