2014 QCCA 2221, 2014 QCCA 2221

White c. Montreal (City of) 2014 QCCA 2221 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024829-145 ( 500-22-189330-122 ) MINUTES OF THE HEARING DATE: December 3, 2014 CORAM: THE HONOURABLE nicholas kasirer, J.A. jean-françois émond, J.A. mark schrager, J.A. PETITIONER WAYNE WHITE IN PERSON (absent) RESPONDENT COUNSEL CITY OF MONTREAL Mtre JEAN-NICOLAS LEGAULT-LOISELLE (absent) ( Dagenais, Gagnier, Biron ) IMPLEADED PARTY COUNSEL PROCUREURE GÉNÉRALE DU QUÉBEC Mtre AMÉLIE DION (absent) ( Direction générale des aff. jur. et légis. )

In appeal from a judgment rendered on September 29, 2014 by the Honourable Madam Justice Magali Lewis of the Court of Quebec, District of Montreal. DESCRIPTION : Motion for extension of delay for leave to appeal Clerk: Nadia Samy Courtroom: Pierre-Basile-Mignault HEARING Continued from the hearing on December 1, 2014. The parties were excused from being present. Judgment – see page 3.

Clerk BY THE COURT JUDGMENT [ 1 ] Petitioner seeks an extension of the time to appeal a judgment of the Court of Québec of September 29, 2014 (the Honourable Magali Lewis, j.c.q.) which dismissed his action again the City of Montreal stemming from an alleged unlawful arrest by the police. [ 2 ] The delay to appeal would have expired 30 days from Petitioner’s knowledge of the judgment. That date does not appear clearly from his motion, but Petitioner does state that he was unable to appeal within the delay because he was incarcerated from the day of the judgment until October 20, 2014.

No explanation is offered for the delay until the motion was made on November 13, 2014. [ 3 ]

Article 523 CCP provides :

523. La Cour d'appel peut, nonobstant l'expiration du délai prévu à l'

article 494 , mais pourvu qu'il ne se soit pas écoulé plus de six mois depuis le jugement, accorder une permission spéciale d'appeler à la

partie qui démontre qu'elle a été, en fait, dans l'impossibilité d'agir plus tôt. Toutefois, un jugement rendu dans les circonstances prévues à l'

article 198.1 ne peut faire l'objet d'une telle permission. 523 . The Court of Appeal may, notwithstanding the expiry of the time allowed by

article 494 , but provided that more than six months have not elapsed since the judgment, grant special leave to appeal to a party who shows that in fact it was impossible for him to act sooner. However such leave cannot be granted in respect of a judgment rendered in the circumstances contemplated in

article 198.1 . [ 4 ] The Petitioner has the burden of demonstrating that it was impossible for him to act sooner. [ 5 ] We are inclined to give Mr. White the benefit of the doubt that his incarceration made it impossible for him to file his motion sooner. [ 6 ] Even though this Court is persuaded to extend the delay to appeal, the case law dictates that we be convinced that the appeal has a reasonable chance of success [1] .

This is not the case. [ 7 ] The motion makes reference to the Quebec Charter of Human Rights and Freedoms [2] but there are no specifics of how Petitioner’s rights were infringed. [ 8 ] The judge concluded in paragraphs 64 and 68 of her judgment that the defendant did not commit a fault. She considered

Article 1457 of the Civil Code of Québec and the Quebec Charter of Human Rights and Freedoms . Her finding that no fault was committed cannot be disturbed by the Court absent a palpable or overriding error. Petitioner does not allege any such error nor do we observe any on a review of the judgment. [ 9 ] This Court makes no comment on Petitioner’s representations of a general practice of harassment by the police against him. The judge was called upon to decide whether on August 17, 2011 the police acted unreasonably or unlawfully in arresting Petitioner.

We are called upon to adjudicate Petitioner’s right of appeal of that judgment. [ 10 ] We are unanimously of the view that the appeal has no reasonable chance of success so that leave to appeal should not be granted. FOR THESE REASONS, THE COURT: [ 11 ] DISMISSES the motion for extension of time for leave to appeal, without costs. nicholas kasirer, J.A. jean-françois émond, J.A. mark schrager, J.A.