2015 QCCA 1401, 2015 QCCA 1401

S.M. c. R.K. 2015 QCCA 1401 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025553-157 (500-17-077901-133) MINUTES OF THE HEARING DATE: September 3, 2015 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. PETITIONER ATTORNEY S. M. Tessa Roy-Hébert, Articling law student Mtre Brahm L. Campbell ABSENT (Campbell, Cohen, Worsoff, Avocats) Mtre Judith Elisabeth Cohen ABSENT (GWBR, S.E.N.C.R.L.) Mtre Adam Eidelmann ABSENT (Eidelmann Law Firm) RESPONDENTS ATTORNEY R. K. Mtre Douglas Mitchell ABSENT (Irving Mitchell Kalichman SENCRL / LLP)

RO. M. Mtre Marie-Hélène Desaunettes Mtre Laurent R. Kanemy ABSENTS (Nelson Champagne) Mtre Neil G. Oberman ABSENT (Spiegel, Sohmer inc.) R. K. , represented ès qualités by F. A. as the Curator to the Person Mtre Lucie Lanctuit ABSENT (Miller Thomson, SENCRL / LLP) IMPLEADED PARTY ATTORNEYS PUBLIC CURATOR OF QUEBEC Mtre Leonard E. Seidman ABSENT (Seal Seidman) Me Stephan H. Trihey ABSENT (Miller Thomson, SENCRL / LLP) DESCRIPTION: Application for leave to appeal (Art. 26, 494 & 511 C.C.P. ) Clerk: Shirley Thomas Courtroom: RC-18

HEARING Continuation of the hearing of August 31, 2015. The parties were excused from appearing in Court this morning. BY THE JUDGE : Judgment-see page 4. SHIRLEY THOMAS Clerk

BY THE JUDGE JUDGMENT [ 1 ] I am called upon to adjudicate a Motion for leave to appeal from a judgment by the Superior Court, District of Montreal (the Honourable Joel A. Silcoff) rendered on July 29, 2015, concerning a matter of curatorship. [ 2 ] The judge in first instance granted, without costs, the Motion to declare the law firm of Irving Mitchell Kalichman LLP (“ IMK ”) disqualified from representing the protected person, R. K..

It terminated the mandate of the firm and its lawyer, Mtre Michelin, as of the close of the hearing of July 13, 2015, and directed the interim curator to remit to the firm all unpaid fees and disbursements incurred up to then. [ 3 ] The motion’s judge concluded that the curator had appointed counsel and that at this point, there was no further need for separate legal counsel for Ms.

K.: [48] Although such might not have been the case right up to and including the recent past, at this juncture in the evolution of the proceedings, the Court is satisfied that, going forward, with the elements available to it, aided by the representations of experienced counsel and experts retained by the respective parties, the rights and interests of R. will be sufficiently safeguarded by the Court without the necessity of additional independent representation on her behalf. [ 4 ] The Petitioner supported the motion before the motion’s judge and he is not seeking to reverse the conclusions of his judgment.

He is essentially unhappy with certain of the judge’s findings that IMK’s professional conduct and representation of R. K. interests were without reproach. He is therefore seeking leave to appeal in order to have these findings struck from the record, on the basis that the motion’s judge did not have the benefit of hearing any evidence in this respect and could not make the following assertions found in the judgment:

[29] […] the Court is unable to find any foundation or justification in fact or in law to support either F.’s or S.’s contentions of professional impropriety in this regard.

R. was clearly entitled to continued independent representation by her chosen counsel. [46] As previously stated, the Court is satisfied that IMK and Mtre Michelin’s professional conduct and representation of R.’s interests has at all times been beyond reproach, appropriate and performed in a manner which they perceived to be in her best interests. [ 5 ] The judgment granting a motion to disqualify counsel is interlocutory in nature and leave to appeal from a judgment of this nature is required pursuant to articles 29 and 511 C.C.P.

Such a judgment usually raises a fundamental issue concerning the right to retain legal counsel and the integrity of the legal system. As a result, the consequences of a judgment granting a declaration to disqualify would generally not be remedied by final judgment. [1] [ 6 ] However, in the case at hand, the Petitioner supported the motion that was granted and, by his own admission, he is not seeking to contest in appeal any of the conclusions of the judgment.

Rather, he is asking for leave to appeal to strike some of the reasons that led to such conclusions. [ 7 ] It is well established that there is no appeal of the reasons of a judgment where such reasons are not reproduced in its conclusions. [2] [ 8 ] In my view, even if I were to assume that the situation is one that satisfies the requirements of

article 29 C.C.P. , I would find that the test of

article 511 C.C.P. is not met insofar as the Petitioner fails to demonstrate that it is in the interest of justice to grant leave in such circumstances. [ 9 ] This is even more the case in the wake of the ongoing judicial battle which the motion’s judge described at the outset of his judgment, as “a plethora of legal proceedings”, where the 88 year old protected person “unfortunately […] no longer has the ability or legal capacity to defend her own interests in this tragic family confrontation” and where a number of judges have already made “vigorous comments concerning the unreasonable and disproportionate nature of the dispute”.

The rule of proportionality (article 4.2 C.C.P.) certainly commands that leave not be granted under such circumstances, more particularly in light of the issues raised in the proposed appeal. FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the Motion for leave to appeal with costs. GENEVIÈVE MARCOTTE , J.A.