2015 QCCA 1114, 2015 QCCA 1114

R.P. c. D.J. 2015 QCCA 1114 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025321-159, 500-09-025322-157 (500-14-039290-119) MINUTES OF THE HEARING DATE: June 26, 2015 THE HONOURABLE YVES-MARIE MORISSETTE, J.A. N o : 500-09-025321-159 PETITIONERS COUNSEL R. P. DE. P. Mtre LILLIAN KLIGER RESPONDENTS COUNSEL D. J. Mtre MAZALTOV OHANA THE PUBLIC CURATOR OF QUEBEC Mtre PAULENE MASSILLON Mtre ÉMILIE BOURRET (Le Curateur public du Québec) (Filion & Associé

s) IMPLEADED PARTIES COUNSEL

C. P. T.B. Mtre MAO CHAMBERS N o : 500-09-025322-157 PETITIONERS COUNSEL C. P. T.B. Mtre MAO CHAMBERS RESPONDENTS COUNSEL D. J. Mtre MAZALTOV OHANA THE PUBLIC CURATOR OF QUEBEC Mtre PAULENE MASILLON Mtre ÉMILIE BOURRET (Le Curateur public du Québec) (Filion & Associé

s) IMPLEADED PARTIES COUNSEL R. P. DE. P. Mtre LILLIAN KLIGER

DESCRIPTION: Motion of C. P. and T.B. to suspend the provisional execution of the proceedings and judgment of the Court of first instance. (Article 550 C.C.P .) Motion of De. P. and R. P. to suspend the provisional execution of the proceedings and judgment of the Court of first instance. (Article 550 C.C.P.) (Judgment rendered on April 29, 2015 by the Honourable Justice Michel A. Pinsonnault, of the Superior Court, District of Montreal) Clerk: Robert Osadchuck Courtroom: RC-18 HEARING Continuation of the hearing held on June 25, 2015. 9:30 Judgment – see page 4.

Robert Osadchuck Clerk BY THE JUDGE JUDGMENT [ 1 ] The petitioners before me are also the appellants in two appeals as of right launched against a judgment rendered on April 29, 2015, by Mr. Justice Pinsonnault of the Superior Court, district of Montreal. [ 2 ] One salient effect of this judgment is that it revokes as null and void ab initio a mandate in case of incapacity signed by the appellant De. P. on October 3, 2011. The judge found as a fact that, among other troubling circumstances, this mandate had been given at a time when Mrs. P. suffered from Frontotemporal Dementia and was incapacitated.

He further determined that “since August 1 st , 2011, Mrs. P. is incapable and inapt to take care of her person, to administer her property and to exercise her civil rights and that her incapacity has remained uninterrupted and unchanged until now”. [ 3 ] The judge also retained jurisdiction on the case and, among other orders, he required the parties to take all necessary steps to

schedule a hearing at which an appropriate form of protective supervision for Mrs P. would be determined. The continuation of these proceedings is indeed scheduled for the week of June 29. [ 4 ] All four petitioners seek the suspension of the provisional execution order contained in the judgment. [ 5 ] As this judgment “revokes a mandate given to a mandatary in anticipation of the mandator’s incapacity”, it is, pursuant to

article 547 (

e) C.C.P. and as a matter of law, subject to provisional execution notwithstanding appeal. In other words, this is one of the few cases where the legislature considers that provisional execution ought to take place as a matter of course, presumably because it is assumed that in such circumstances the conditions for issuing a discretionary order of provisional execution are met (“in case of exceptional

urgency, or for any other reason deemed sufficient in particular where the fact of bringing the case to appeal is likely to cause serious or irreparable injury”). [ 6 ] In order for their motions to succeed, the petitioners must show three things: 1) an apparent weakness in the judgment in the lower Court; 2) a serious or irreparable prejudice caused by the provisional execution; 3) the balance of inconvenience in their favour. These conditions are cumulative.

As my colleague Madam Justice Bich aptly remarked in Droit de la famille – 113005 , 2011 QCCA 1774 , they are also “exacting, considering the presumption of validity attached to judgments, even in the presence of an appeal, and they are to be applied strictly in cases […] where provisional execution is dictated by law”. [ 7 ] The appeals here may not be frivolous, and they may raise issues entitling the appellants to a hearing on the merits before a panel of the Court (something on which I express no opinion at this time). They may even result in the reversal, in whole or n part, of the judgment of April 29.

But the existence of this last possibility is not enough at this early stage to grant the petitions. Otherwise, in all cases where the law dictates, as it does here, that provisional execution notwithstanding an appeal is to take place, the mere fact that the appeal survives the test of paragraphs 4.1 and 5 of

article 501 C.C.P. would entail that provisional execution ought to be suspended pursuant to

article 550 C.C.P . That cannot be what is intended by

article 547 C.C.P. [ 8 ] In other words, the fact that an argument may be tenable does not entail, ipso facto , that the judgement against which it is levelled evinces an apparent weakness. [ 9 ] In this instance, the motions for suspension fail on the first count. They do allege, of course, that there are errors in the judgment below, errors which one of the petitions even describes as “multitudinous”. But they do not establish prima facie the existence of an apparent weakness in the judgment.

They merely demonstrate that the petitioners disagree with several findings of fact which are otherwise amply supported by the judgment below. In this carefully reasoned judgment of 68 pages and 412 paragraphs, the judge provides a painstaking account of the evidence that was placed before him. [ 10 ] The petitioners agree that Mrs. P. is now in need of a regime of protective supervision. The thrust of their argument concerns the time at which she became incapable. They state that, in its early stages, Frontotemporal Dementia causes a physical, not a mental, incapacity. On this premise, they assert that Mrs.

P. was not incapacitated at the time she gave a mandate in case of incapacity to her sister R. P.. They dispute vigorously the trial judge’s finding that such incapacity may have existed as early as August 1 st , 2011. These are questions of fact in respect of which extensive evidence was led in the Superior Court. Such questions attract a rigorous standard of review on appeal.

Although I cannot assert with certainty that, once it is presented with a full record of the case, the Court will agree with every one of the judge’s determinations, I cannot say either that there is an apparent weakness in his judgment. [ 11 ] The petitioners also point out that there is an obvious difference in wording between

article 154 C.C.Q. and

article 986 C.C.L.C. According to them, under the law as it now stands, it must be concluded that Mrs. P. was capable, in October 2011, of entering into a valid mandate with her sister. In making this argument, they omit to mention

article 1398 C.C.Q. In my view, the most charitable comment which one can offer about this argument is that it is barely tenable. [ 12 ] After almost ninety minutes of oral argument, the petitioners failed to persuade me that there is an apparent weakness in the judgment below. [ 13 ] FOR THESE REASONS , the motions are dismissed, with costs. Yves-Marie Morissette , J.A.

Mtre Mao Chambers For C. P. and T.B. Mtre Lilian Kliger For De. P. and R. P. Mtre Mazaltov Ohana For D. J. Mtre Paulene Massillon Mtre Émilie Bourret For the Public Curator of Quebec