2016 QCCA 936, 2016 QCCA 936

Fleming c. McGill University 2016 QCCA 936 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL MINUTES OF THE HEARING DATE: May 24, 2016 THE HONOURABLE MANON SAVARD, J.A. No: 500-09-026069-161 (500-22-211123-149) PETITIONER COUNSEL JAMES FLEMING IN PERSON RESPONDENT COUNSEL MCGILL UNIVERSITY Mtre ANNIE MARIE BOURGEOIS (Langlois avocats, S.E.N.C.R.L.) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on April 29, 2016 by Martine Tremblay of the Quebec Court, District of Montreal No: 500-09-025487-158 (500-22-211123-149) PETITIONER COUNSEL JAMES FLEMING IN PERSON

RESPONDENT COUNSEL MCGILL UNIVERSITY Mtre ANNIE MARIE BOURGEOIS (Langlois avocats, S.E.N.C.R.L.) DESCRIPTION: Verbal Motion by the Respondent to suspend the appelant’s appeal, pending the administration of new evidence Clerk: Shirley Thomas Courtroom: RC-18 HEARING 9: 46 Commencement of the hearing. The motion is contested. 9: 47 Recess. 11: 19 Resumption of the hearing. 11: 19 Representations by Mr. Fleming. 11: 30 Exchange between Manon Savard, J. A. and Mtre Bourgeois. 11: 31 Mr.

Fleming continued his representations. 11: 50 Representations by Mtre Bourgeois who verbally submits a motion to suspend the appelant’s appeal until July 20th 2016 12: 14 Reply by Mr. Fleming. 12 h 30 Recess 14 h 18 Resumption of the hearing. 14 h 18 By the judge: Judgment – see page 4. 14 h 22 Conclusion of the hearing.

SHIRLEY THOMAS Clerk BY THE JUDGE JUDGMENT Motion for permission for leave to appeal the judgment of the Court of Quebec (Honourable Martine Tremblay) rendered on April 29, 2016 ( 500-09-026069-161) : [ 1 ] On February 15, 2016, the Court granted the Petitioner’s motion for permission to present indispensable new evidence in

accordance with

article 380 C.C.P. (CQLR, c. 25.01) [1] . This motion was presented in the course of the Petitioner’s appeal from the judgment rendered on June 26, 2015 by the Honourable Justice Daniel Dortélus of the Court of Quebec (“June 2015 Judgment”) [2] . [ 2 ] Applying the second paragraph of

article 380 C .C.P ., the Court referred the case back to the Court of Quebec in order that the further proof contemplated by the Petitioner be adduced : 380. The Court of Appeal may authorize a party to present indispensable new evidence after giving the parties an opportunity to make representations. The Court decides how the evidence is to be presented, and may even refer the case back to the court of first instance so that further proof may be made . [Emphasis added] 380 . La Cour d'appel peut autoriser la présentation par une

partie d'une preuve nouvelle indispensable après avoir donné l'occasion aux parties de soumettre leurs observations.

Elle décide alors des modalités de présentation et peut même renvoyer l'affaire devant le tribunal de première instance pour qu'il y soit fait quelque preuve s'y rapportant . [ 3 ] On April 29, 2016, the Honourable Justice Martine Tremblay of the Court of Quebec ordered that the new evidence referred to in the Petitioner’s motion be presented before the Honourable Justice Daniel Dortélus on June 22, 2016 (“April 2016 Judgment”). [ 4 ] Petitioner now asks permission for leave to appeal the April 2016 Judgment alleging that it « causes him irremediable prejudice » given Justice Dortélus alleged bias in the June 2015 Judgment as shown by his numerous alleged errors in law. [ 5 ] The Respondent submitted that the Petitionner never contested before Justice Tremblay that aspect of her decision although it was clear during the various case management conferences that the new evidence would be adduced before Justice Dortélus.

It is only before this Court that he raised this argument in support of his application for leave to appeal. [ 6 ] The Petitioner has not convinced me that leave to appeal the April 2016 Judgment should be granted. [ 7 ] The latter judgment relates to the manner which the further proof contemplated by Petitioner be adduced following the Court’s judgment on February 15, 2016. Once this new evidence forms part of the record, the Petitionner will include it in his appeal factum regarding the June 2015 Judgment.

It will then be up to the members of the Court who will eventually hear his appeal, not to Justice Dortélus, to determine the relevancy of and weigh the said evidence on the merit of his appeal.

Justice Dortélus’bias, if any, will not influence this process. [ 8 ] Furthermore, as suggested by the Respondent during the hearing before me, the judge hearing the new evidence might require the witnesses to answer the questions despite any ruling granting an objection in order to avoid any additional delay. [ 9 ] Viewed in such manner, the Petitionner has not established that the April 2016 Judgment was unreasonable in light of the guiding principles of procedure (article 32 C.C.P .). FOR THESE REASONS, THE UNDERSIGNED : [ 10 ] DISMISSES the Petitionner’s motion for leave to appeal; [ 11 ] WITH COSTS .

Verbal motion by the Respondent to suspend the appeal pending the administration of new evidence (500-09-025487-158) : [ 12 ] Considering the judgment of the Honourable Justice Marcotte on March 10, 2016; [ 13 ] Considering that the new evidence will not be adduced in the Court of Quebec before June 22, 2016; [ 14 ] Considering the verbal motion presented by the Respondent to extend the suspension of the appeal pending the administration of new evidence; [ 15 ] Considering the Petitionner’s consent to said motion; THEREFORE, THE UNDERSIGNED : [ 16 ] GRANTS the verbal motion; [ 17 ] ORDERS the suspension of the appeal pending the administration of new evidence until July 20, 2016; [ 18 ] LEGAL COSTS to follow.

MANON SAVARD, J.A.