2011 QCCA 2324, 2011 QCCA 2324

Tannenbaum c. Lazare 2011 QCCA 2324 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020159-091 ( 500-17-029602-060 ) MINUTES OF THE HEARING DATE: December 13, 2011 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARIE-FRANCE BICH, J.A. JACQUES R. FOURNIER, J.A. APPELLANT(

S) ATTORNEY(

S) HYMAN TANNENBAUM Mtre Julius H. Grey GREY CASGRAIN RESPONDENT(

S) ATTORNEY(

S) NORMAN LAZARE JOAN BENSON In person In person RESPONDENT ATTORNEY(

S) PROFESSIONAL LIABILITY INSURANCE FUND OF THE BARREAU DU QUÉBEC Mtre Marie-Josée Bélainsky

On appeal from a judgment rendered on October 27, 2009 and corrected on November 9, 2009 by the Honourable Mr. Justice Roger E. Baker of the Superior Court, District of Montreal. NATURE OF THE APPEAL : Liability Clerk: MARC LEBLANC Courtroom: PIERRE-BASILE-MIGNAULT HEARING 14 h 05 Beginning of the hearing. Remarks by the Court. 14 h 07 Argument of Mtre Grey. 14 h 23 Argument of Mtre Lazare. 15 h 00 Argument of Mtre Benson. 15 h 12 Me Bélainsky doesn't argue. 15 h 13 Suspension of the hearing. 15 h 29 Resumption of the hearing. Judgment rendered – see page 3. 15 h 32 The hearing is concluded. Marc Leblanc Clerk BY THE COURT JUDGMENT

[ 1 ] We are unanimously of the opinion that Appellant was not afforded due process once he was advised by the trial judge that he was facing a claim for damages under articles 54.1 and following of the Code of Civil Procedure , which claim ultimately turned out to be in the amount $ 280,000. Appellant was denied a postponement in order to secure the advice of counsel and prepare his contestation of this very substantial claim. [ 2 ] We do not believe that the matter was dealt within a manner that is in conformity with, among other provisions, par. 2 of

article 54.4 of the Code of Civil Procedure . [ 3 ] The Court notes that Appellant has desisted from his action and is not appealing its dismissal but only the conclusions under

article 54.1 of the Code of Civil Procedure as mentioned in his inscription in appeal. [ 4 ] FOR THESE REASONS, THE COURT : [ 5 ] GRANTS the appeal; [ 6 ] QUASHES the judgment a quo ; [ 7 ] RETURNS the file to the Superior Court before another judge for a continuation of the hearing on the sole issues pertaining to articles 54.1 and following of the Code of Civil Procedure . [ 8 ] In the circumstances, no costs are awarded on the appeal. NICOLE DUVAL HESLER, C.J.Q. MARIE-FRANCE BICH, J.A. JACQUES R. FOURNIER, J.A.