2021 QCCA 1171, 2021 QCCA 1171

A.J. c. Superior Court of Québec 2021 QCCA 1171 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029577-210 ( 500-17-116878-219 ) MINUTES OF HEARING DATE: July 22, 2021 THE HONOURABLE CHRISTINE BAUDOUIN, J.A. APPLICANT A. J. ABSENT AND Unrepresented RESPONDENT THE SUPERIOR COURT OF QUÉBEC ABSENT AND UNREPRESENTED IMPLEADED PARTY Y. T.

ABSENT AND UNREPRESENTED DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on May 21, 2021 by the Honourable Chantal Masse of the Superior Court , District of Montréal (Section 30 (5), 30 (2), 31 and 398 C.C.P. ). Clerks at the hearing : Annick Nguyen and Paola Garcia Courtroom: RC-18 HEARING Continuation of the hearing held on July 20, 2021. The parties were excused from appearing in Court. JUDGMENT – See page 3.

Annick Nguyen and Paola Garcia Clerks at the hearing JUDGMENT [ 1 ] I am seized of an “Application for leave to appeal judgments rendered in the course of the proceedings and Habeas Corpus and Certiorari ” filed by the Applicant, A.

J., in the context of ongoing family law litigation. [ 2 ] The relevant context is the following: On April 2, 2019, the Applicant’s access rights, as well as all communications with her two children, were suspended by way of a safeguard order rendered by the Superior Court pending the hearing on provisional measures. [ 3 ] Since that safeguard order, many decisions on provisional measures or safeguard orders have been rendered by the Superior Court in this file and Associate Chief Justice Petras appointed Justice Kear Jodoin as special case management judge.

A psychosocial evaluation was ordered and communicated to the parties, with the result that, although the file has not yet been heard on the merits, the Applicant now exercises supervised access rights and the children’s other mother has custody of the children in the meantime. [ 4 ] In the context of the family dispute, the Applicant, who is a member of the Barreau du Québec and the Ontario Bar, filed an Application for Habeas Corpus and Certiorari against the Superior Court of Quebec, alleging that some of its judges repeatedly rendered decisions in excess of their jurisdiction, with the effect of depriving her of her liberty, contrary to ss. 7 , 8 , 9 , 10(c) , 12 and 15 of the Canadian Charter of Rights and Freedoms , art. 398 C.C.P. and s. 32 of the Quebec Charter of Human Rights and Freedoms . [ 5 ] More particularly, she stated that since the suspension of her access rights in April 2019, she has been deprived of all rights in respect of her children, banned from any contact or communication with them and subject to “physical restrictions on her movements in the area and neighbourhood around her home”, which is the basis for her Application for Habeas Corpus . [ 6 ] The conclusions sought read as follows: GRANT the Applicant’s detention since April 2 nd , 2019 to be unlawful and unreasonable; FIND further that the Applicant’s S.7, S.8, S.9 and S.12 Charter rights have been breached by the proceedings and the effects of decisions of the Superior Court of Québec since April 2 nd , 2019; In consequence : QUASH decision dated April 2 nd , 2019; May 14th, 2019; August 28th, 2019; October 22nd, 2019; December 10th 2019; December 17th 2019; December 23rd, 2020 and May 5th, 2021, rendered in the file 500-12-336513-175 ; STRIKE the « Psychosocial Expertise Report, May 27 th , 2020 », ordered on October 22 nd , 2019, from the court record, file 500-12- 336513-175 ; REINSTATE the Applicant’s parental status, rights and time with her children, as defined according to the terms of the last consent agreement between the parents, homologated and filed with the court on June 21 st , 2018, as a just and appropriate remedy under S. 24(1) of the Charter , in the circumstances; AUTHORIZE the Applicant to seek damages for the harm to her and her children arising from the two (2) year long unlawful detention and ensuing serious and ongoing violations of her Charter rights; THE WHOLE WITH LEGAL COSTS [ 7 ] On May 21, 2021, Masse, J.S.C. dismissed the application, but not before having stated that it could be declared abusive as clearly unfounded and frivolous or as an attempt to defeat the ends of justice within the meaning of art. 51 C.C.P .

Indeed, after having

heard the Applicant’s representations, she declared the Application for Habeas Corpus and Certiorari abusive and dismissed it. That the Court is of the opinion that the Application must be declared abusive and dismissed as such for the following reasons: •

Section 398 CPC clearly does not apply under the circumstances because there is no substantial deprivation of liberty and/or since the effects of decisions rendered by a competent court cannot be contested under

section 398 CPC and this, even if the facts alleged were considered to be true; • The Superior Court of Québec cannot be made a party to a litigation because of decisions rendered by its judges; as mentioned in RWDSU v.

Dolphin Delivery Ltd , « [I] t is their duty [the courts] to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute . » • The essence of the Application is to have decision rendered by the Superior Court of Québec quashed; the Superior Court of Québec has no jurisdiction to quash its own decisions; • The Applicant failed to add the party benefiting from the decisions as a party to her Application and the Application is contesting decision rendered by the Superior Court of Québec without following the proper proceedings to do so and can be considered as an attempt to defeat the ends of justice; [ 8 ] The Applicant presents an Application for leave to appeal alleging the following: [6] While the learned judge was correct to dismiss the Application for want of jurisdiction, she erred in her determination the Application was abusive, and applied a narrow view of the availability of habeas corpus jurisprudence in her prima facie disqualification of the Applicant’s circumstances as meeting the definition of ‘’detention’’; [7] In consequence of these broad conclusions, the May 21 st , 2021 decision both determines the main issue in the underlying family litigation in condoning the Applicant’s systematic oppression through years of unlawful interim orders of the Superior Court, and causes irremediable injury to the Applicant and her children; [8] Indeed, by approving of the apparent unassailable legality of the series of decisions rendered by the Superior Court since April 2019 that are unlawful on their face, the May 21 st , 2021 decision ensures the continuation of the Applicant’s lengthy and indefinite detention, and perpetuation of acts of cruelty discrimination and untold irreparable psychological harm inflicted by the Superior Court upon the Applicant and her children; (…) [46] Given the dual nature of the demand, i.e. the inherent jurisdiction of the Superior Court over habeas corpus review, and the superintending and reviewing powers of the Court of Appeal over interim decisions of the Superior Court, the Applicant submits that she acted with prudence, diligence and transparency in the unusual circumstances; [47] The Applicant determined she was obliged by art. 398 CCP , to first bring her application to the Superior Court in order to have it dismissed for want of jurisdiction, allowing her to then proceed with her leave to appeal application for certiorari to quash , to which the habeas corpus is joined and consequent; [ 9 ] The present Application for leave to appeal is governed by art. 31 para. 2 C.C.P .

In Francoeur , [1] Bich, J.A. thoroughly reviewed the applicable criteria for granting leave to appeal: [8] La Cour s’est abondamment prononcée sur le sens de l’art. 31 C.p.c. et, en particulier, sur celui de son second alinéa. Il ressort de la jurisprudence que, aux fins d’obtenir une permission d’appeler en vertu de cette disposition, la

partie requérante doit établir que le jugement de première instance décide en

partie du litige ou lui cause un préjudice irrémédiable, ce qui est une condition de recevabilité de sa demande, sans laquelle, même erroné, le jugement ne peut faire l’objet d’un appel. Mais cette démonstration ne suffit pas : la

partie requérante doit également montrer ce en quoi le jugement est affligé, du moins en apparence, d’une erreur de nature, potentiellement, à entraîner une intervention de la Cour. Mais cela encore ne suffit pas : elle doit également démontrer que l’appel projeté sert le « meilleur intérêt de la justice » ainsi que la saine administration de celle-ci (art. 9 et 18 C.p.c. ) et qu’il concorde avec le principe de proportionnalité (art. 18 C.p.c. ).

Afin d’évaluer ces deux dernières conditions, le juge autorisateur se demandera notamment si l’affaire soulève une question méritant l’attention de la Cour et tentera aussi d'apprécier les chances de succès de l’appel envisagé puisque, bien sûr, il sera rarement dans l’intérêt de la justice d’autoriser un appel voué à l’échec. Il tiendra compte aussi du contexte général de l’affaire, du degré d’avancement de l’instance pendante devant le tribunal de première instance, de la manière dont les parties conduisent le dossier, etc. [Reference omitted ] [ 10 ] In

summary, the judgment at issue here may be appealed with leave if at least one of the following two criteria is satisfied: “it determines part of the dispute” or “causes irremediable injury to a party”. If one or both of the criteria are satisfied, the Court will then consider where it is in the interests of justice that leave be granted, taking into account the guiding principles of civil procedure, notably the principle of proportionality. [ 11 ] The Applicant fails to demonstrate how she satisfies those criteria.

Justice Masse’s judgment does not determine part of the dispute nor does it cause irremediable injury to a party. The Applicant will be in a position to raise her arguments concerning access rights, custody and other related issues at the hearing on the merits. [ 12 ] The Applicant is actually seeking an indirect appeal or the opportunity to review every interim decision rendered by the Superior Court since 2019, which she finds to have been rendered “on the basis of excess of jurisdiction, violations of the Rule of Law and absence of minimal procedural fairness”.

That goal cannot be achieved by instituting an Application for Habeas Corpus and

Certiorari against the Superior Court of Quebec. [ 13 ] There are no apparent weaknesses in Justice Masse’s judgment, either regarding the fact that she could not review her colleagues’ previous decisions, that the situation described in the Application does not constitute a substantial deprivation of liberty within the meaning of art. 398 C.C.P. or that the Application is abusive. [ 14 ] Moreover, the interests of justice and the principle of proportionality do not favour that leave to appeal be granted. * * * [ 15 ] During the hearing, the impleaded party asked that the Application for leave to appeal be declared abusive.

As my colleague, Moore, J.A., stated recently in Perrier (Succession de Beaudoin) c. Perrier , 2020 QCCA 1334 , an appellate judge does not a priori have jurisdiction to deal with such a request : [34] À l’audience, l’intimé a présenté une demande en déclaration d’abus de la permission d’appeler comme il l’avait annoncé dans son plan d’argumentation. [35] La question de la compétence du juge unique de statuer sur une telle demande n’a pas été débattue par les parties à l’audition.

Or, selon l’arrêt de la Cour dans Asselin, « seul le tribunal » et donc une formation de la Cour, peut prononcer une telle déclaration. A priori, je n’ai donc pas compétence. [ Reference omitted ] [ 16 ] Finally, the impleaded party requested that the present file be subject to an order based on articles 15 and 16 of the C.C.P ., since it is intrinsically related to the ongoing family matter. Such an order will be granted.

FOR THESE REASONS, THE COURT : [ 17 ] DISMISSES the Application for leave to appeal judgments rendered in the course of the proceedings and Habeas Corpus and Certiorari , without costs; [ 18 ] ACKNOWLEDGES that the present file is linked to family matter 500-12-336513-175; [ 19 ] ORDERS the office of the Court of Appeal to consider the present file to be a family matter according to articles 15 para. 2 and 16 C.C.P .; [ 20 ] THE WHOLE , without costs. CHRISTINE BAUDOUIN, J.A.