2023 QCCA 53, 2023 QCCA 53

S.M. c. Sc.K. 2023 QCCA 53 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030293-229 ( 500-17-117093-214 ), (500-17-117281-215) MINUTES OF HEARING DATE: January 13, 2023 THE HONOURABLE CHRISTINE BAUDOUIN, J.A. APPLICANT COUNSEL S. M. PRESENT AND Unrepresented Absent RESPONDENTS COUNSEL SC. K. R. K.

Mtre ILAN GABIZON ( Paquette & associés avocats ) Absent public CURATOR OF Québec THE CANADA TRUST COMPANY Mtre ANTONIO IACOVELLI ( Miller Thomson ) Absent TD Waterhouse Canada Mtre MAUDE ST-GEORGES ( McCarthy Tétrault ) Absent DESCRIPTION: Amended application for leave to appeal from a judgment rendered in the course of a proceeding on October 24, 2022 by the Honourable Mr. Justice Julien Lanctôt of the Superior Court , District of Montreal (Articles 31 and 357 C.C.P. ).

Clerk at the hearing : Ariane Simard-Trudel Courtroom: RC-18 HEARING Continuation of the hearing held on January 9, 2023. The parties were excused from appearing in Court. BY THE JUDGE : Judgment – see page 4. Ariane Simard-Trudel, Clerk at the hearing JUDGMENT [ 1 ] I am seized of an amended application for leave to appeal from a judgment rendered in the course of a proceeding by the Honourable Mr. Justice Julien Lanctôt of the Superior Court (district of Montreal), dated October 24, 2022.

The judgment declared the Applicant foreclosed from making submissions in two court cases involving him as liquidator of his late father’s estate (the “Estate”), unless he is represented by counsel. [ 2 ] In the first of those court cases (no. 500-17-117093-214), the Applicant, acting as plaintiff, seeks the homologation of an agreement that purports to settle a longstanding dispute concerning the Estate and the procedure for its liquidation. Co-liquidator Sc. K. and the Applicant’s sister, R.

K., are the named defendants on record in that action. [ 3 ] In the second court case (no. 500-17-117281-215), the Public Curator and Canada Trust, respectively curator to the person and property of Ru. Kr., widow of the Applicant’s late father, seek the replacement of the Applicant and Sc. K. as liquidators of the Estate on the grounds that they are acting contrary to the wishes expressed in the will and contrary to the interests of Ms. Kr., who is the sole beneficiary of a testamentary trust established therein.

The Public Curator also intervened in court case no. 214 to contest the homologation of the purported agreement. [ 4 ] Following a judgment rendered on October 14, 2021, the Applicant and Sc. K. were provisionally replaced as liquidators of the Estate and trustees, and Canada Trust named in their stead until a decision on the merits. [1] [ 5 ] A notice to cease representing the Applicant was subsequently filed on July 2, 2022, in both court cases. [2] Given the Applicant’s failure to appoint a new lawyer, the Public Curator raised the issue of the Applicant’s ability to self-represent and invoked

article 87 para. 6 C.C.P. , which requires liquidators to be represented by counsel in contentious proceedings.

The Public Curator argued that both cases concern acts or decisions made by the Applicant in his capacity as liquidator of the Estate. [ 6 ] On October 24, 2022, during a case management conference held to decide that very issue, Justice Lanctôt, in view of the proceedings, agreed with the Public Curator’s position, refused to hear the Applicant’s arguments on the matter since he was not represented by counsel, and proceeded to render a judgment from the bench in which he concluded as follows: DÉCLARE que le défendeur S...

M… ne peut effectuer de représentations devant cette Cour dans les dossiers 500-17-117281-215 et 500-17-117093-214 concernant des décisions prises ou des gestes et actions posés par lui à

titre de liquidateur de la Succession M… sans être représenté par avocat; [ 7 ] The Applicant seeks leave to appeal on the basis that Justice Lanctôt’s decision is in violation of his right to defend himself, and thus causes him irreparable injury within the meaning of

article 31 C.C.P. On the merits of the proposed appeal, the Applicant essentially contends that:

(1) article 87 para. 6 C.C.P. did not apply to him at the time of Justice Lanctôt’s judgment considering that he had been provisionally replaced in his role of liquidator by the effects of the October 14, 2021, judgment, and (2) he should nonetheless be permitted to make submissions in his personal capacity (rather than in his capacity as liquidator) as well as in his capacity as a director of [Company A], a corporation his late father allegedly owned at the time of his passing and whose shares make-up most of the assets of the Estate. [3] At the hearing before me, he added that he was reinstated in his role of liquidator since the passing of his mother on December 15, 2022 and that the Respondents have lost their standing in both files. [ 8 ] Leave to appeal will be denied for the following reasons.

[ 9 ] First, and while it be may be argued that Justice Lanctôt should have allowed the Applicant to make submissions considering that the case management conference was being held specifically to determine whether the Applicant was acting in his capacity as liquidator, it is readily apparent from the record that the Applicant was acting in such capacity, whether it be in case no. 214, where he purports to have transacted with respect to the settlement of the Estate, or in case no. 215, where the proceedings concern his removal as liquidator and trustee. [ 10 ] In those circumstances, the fact that the Applicant may presumably have legal standing as an heir or as a director of a corporation whose shares form part of the assets of the Estate does not obviate his responsibilities as liquidator and consequently his need to be represented by counsel, [4] nor does his provisional replacement as liquidator affect the rules of representation before the courts. [5] The proposed appeal shows no reasonable chance of success in that regard and is thus not in the best interests of justice. [6] Leave should be denied on that ground alone. [ 11 ] Second, and considering that I find

article 87 para. 6 C.C.P. applicable, leave cannot be granted because the Applicant, even before me today, is still not officially represented by counsel. [7] Giving the Applicant additional time to remedy the situation in appeal and appoint new counsel (article 92 C.C.P. ) would serve no purpose other than to delay the dismissal of the leave application on the first ground mentioned above. [ 12 ] Thirdly, leave should also be refused because whatever injury (within the meaning of

article 31 para. 2 C.C.P. ) Justice Lanctôt’s decision causes to the Applicant can be remedied by the appointment of a lawyer to represent him in his capacity as liquidator of the Estate in both court case no. 214 and court case no. 215. [8] [ 13 ] Lastly, I fail to understand how the Applicant can argue that he regained his status of liquidator as of December 15, 2022, setting aside the October 2021 judgment.

Regardless, any issue related to this alleged change in status or the status of the Respondents does not form part of this application for leave to appeal. [ 14 ] After the hearing, on January 12, 2023, the Applicant filed an amended application for leave to appeal with updated facts related to his mother’s death (Mrs. Ru. Kr.) and the status of the Public Curator of Québec. I have reviewed those new allegations and am of the opinion that they have no impact on the present decision. FOR THESE REASONS, THE UNDERSIGNED, [ 15 ] DISMISSES the amended application for leave to appeal, with costs.

CHRISTINE BAUDOUIN, J.A.