2020 QCCQ 6745, 2020 QCCQ 6745

M.P. c. E.H. 2020 QCCQ 6745 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-253710-191 DATE: October 28, 2020 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ M. P. Plaintiff v. E. H. RICCI, TEASDALE, HUISSIERS DE JUSTICE INC. S. I.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, M. P., sues a number of parties, most notable the Defendant Ricci, Teasdale, huissiers de justice, (the “Bailiffs”) in connection with an execution carried out by the Bailiffs pursuant to a judgement of the Superior Court on provisional measures in the divorce proceedings involving the other parties sued in the present case, the Defendants E. H. and S.

I. [ 2 ] The judgment, dated October 28, 2015 ( P-3 ) (Droit de la famille-152711, 2015 QCCS 5037 , Honorable Francine Nantel, J.S.C.) decides, among other issues, the rights of the parties in the family residence and the use of a motor vehicle. [ 3 ] The Plaintiff, not a party to the divorce case, alleges having had rights in relation to the residence and the motor vehicle and that he suffered prejudice when the Bailiffs carried out execution measures with respect to these two assets. [ 4 ] In the present matter, he bases his claims on his alleged rights to the possession of the motor vehicle.

In another similar case, in file number 500-22-252652-196 he makes claims related to the residence. [ 5 ] The Plaintiff did not proceed by way of opposition to the execution measures carried out and none of the claims he makes in the cases now at issue seeks real rights or possession of the assets, only damages, including compensatory damages, both pecuniary and non- pecuniary, and punitive damages. [ 6 ] The application now before the Court, a “Motion for the stay of the Proceedings” seeks to suspend the progress of these two cases pending the outcome of another case in Superior Court (500-17-10954710-193).

In that case, S. I. sues the ecclesiastical court named as a defendant, “La Cathédrale Orthodoxe Russe Saint-Nicholas du Diocese de Montréal et du Canada” in respect of a decision dated March 21, 2016 ( P-4 in the present matter, “the Decision”). The Decision deals with the marital status of two couples, E. H. and S. I. on the one hand and A. F. and V. B. on the other in the context where Mr. E. H. and Ms. A. F. seek, for their marriage, the blessing of the Orthodox Church. The decision pronounces annulments of previous marriages and gives the blessing sought by the E. H./A.

F. couple. [ 7 ] The proceedings referred to above have as their object the intervention of the Superior Court in the Decision. In the case of Mr. M. P.’s intervention, it would be to quash a part of the decision that he alleges would have an impact in the present case and its counterpart in file 500-22-252652-196. In particular he asserts: 42. There exists an undeniable link between the applications.

In light of the foregoing, the Plaintiff requests the Court to grant the Stay of Proceedings as it would achieve proportionality, avoid the risk of having conflicting judgements and also avoid the unnecessary incurring of costs; 43. In the event that the conclusion of joinder of parties as rendered by the ecclesiastical court is not quashed, the bailiffs may have indeed executed the JUDGMENT according to its conclusions and the Plaintiff’s applications bearing the numbers 500-22-253710-191 and 500-22-252652-196 may be moot; 44.

For the sake of sound case management and in the best interests of justice, the parties and the principle of proportionality, it is appropriate that these proceeding be stayed until the judgment passes into force of things judged in the other proceeding, file no. 500-17- 109547-193, before the Superior Court. [ 8 ] Central to Mr. M. P.’s argument in the present matter is the notion that the Decision includes a “joinder” of Mr. E. H. and Ms.

S. I., that would have been the basis for the Bailiffs acting in the execution against the motor vehicle and the residence, by treating his rights pertaining to these assets as being joined with those of Ms. S. I. [ 9 ] He argues that if the Superior Court confirms this notion of “joinder” that he attributes to the Decision, his claims for damages may be affected, and that there is a risk of contradictory judgments if the judgments in the two Court of Quebec files are rendered before that of the Superior Court. [ 10 ] Ms. S. I. argues for the stay as well, by asserting that it is her hope that Mr. M.

P. abandons his cases in the Court of Quebec if the Superior Court judgment confirms that there was such joinder. She finds the conduct of the cases onerous and prejudicial because of the multiplicity of proceedings and the frequent case-management hearings. [ 11 ] The Bailiffs oppose the stay, arguing that they were simply acting in their execution on the judgment of the Superior Court, that their measures were taken out before the Decision was rendered by the ecclesiastical court and that their actions had nothing to do with those proceedings in any way.

A stay would be prejudicial to the Bailiffs’ right to proceed in an orderly manner and within a reasonable time to final judgment. Analysis [ 12 ] In exercising its discretion in matters of stay of proceedings pursuant to

article 212 C.C.P., the Court is mindful of the rights of the other parties to an orderly progress toward judgment. The protocol provides for steps leading to the trial. In particular, the examinations at the initiative of the Bailiffs are scheduled in the near future. The case will shortly be ready to be set down and the impetus toward resolution will be hampered by a stay. [ 13 ] The Court must also consider the more formal criteria of the applications in the two jurisdictions having the same juridical basis or raising the same issues of law and fact.

The question of “joinder” is raised by the Plaintiff in connection with the decision of the ecclesiastical court, but it is difficult to see how that issue, if in fact it exists as part of the Decision, could have a bearing on the execution of the judgment of the Superior Court in the matter of the divorce of Ms. Iwanov and Mr. E. H.. [ 14 ] The Decision mentions, only obliquely, and without mentioning any name, a “long time affair”: E. H. and S. I. were married in St. Nicholas Cathedral in Montreal on September 4, 1994.

The required civil list registration of this marriage was never performed before or after the marriage ceremony for some unknown reason. E. H. is Anglican and S. I. is Russian Orthodox. This marriage was in great stress because S. I. was having long time affair with another man and in 2012 this marriage came to an end. E. H. was not required to file for a civil divorce since his marriage was never registered. Archpriest George Lagodich recommends the spiritual court to annul the religious marriage of E. H. and S.

I. and declare their church marriage void. [ 15 ] According to the Plaintiff’s allegations, this would be a finding of “joinder” which would be prejudicial to him in the context of his having been deprived, through the judgment of Madame Justice Nantel, as executed by the Bailiffs, of rights pertaining to the motor vehicle and the residence. [ 16 ] It is not apparent to the Court that the issue of the “long time affair” if in the findings of the ecclesiastical court (if it was indeed Mr. M.

P. who is the unnamed third party), would have an impact on the duties, and the relative immunity of the Bailiffs in carrying out execution under the jurisdiction of the Superior Court. As well, given that Mr. M.

P. is not a party to the proceedings and not even mentioned in the Decision, the Court cannot see how this finding of the ecclesiastical court could have any impact on his property rights under Quebec law. [ 17 ] Furthermore, the execution of the judgment was carried out before the Decision was known, so it could not have had an influence on the judgment and its execution. [ 18 ] If the decision were quashed, how would that effect his rights in respect of Quebec civil law: how could it improve or worsen his position in respect of his alleged rights in the assets dealt with by the Superior Court? [ 19 ] The Court remains unconvinced that there is any matter on which the Court of Quebec could be bound by a judgment of the Superior Court in the case pending in this matter nor any possible conflict in the respective decisions of the two Courts.

If the Defendants have liability to the Plaintiff for the manner in which Madame Justice Nantel’s decision was obtained by the protagonists and the way in which its execution was carried out, the legality of the ecclesiastical decision as confirmed or infirmed by the Superior Court would not, in the perception of the Court have any impact. [ 20 ] The argument made at the hearing by Mr. M.

P. that he should be permitted to use the Superior Court proceedings to obtain discovery of evidence to use in the present case is not a valid one, since he could have equally carried out discoveries in the Court of Quebec files. [ 21 ] The stay of proceedings will not be granted in this file. The present application was not produced in the other file, number 500- 22-252652-196 and was therefore not formally presented in that file. It stands to reason, however that the result must be the same in that other file, and that the two cases should, proceed to trial together.

WHEREFORE, THE COURT, DISMISSES the application for the stay of proceedings, COSTS to follow suit.

______________________ David L. Cameron, J.C.Q. M. P. Present and not represented E. H. Present and not represented Me Sylvain Racette BÉLANGER, SAUVÉ SENCRL Attorney of RICCI, Teasdale, Huissiers de Justice inc. S. I. Present and not represented Date of hearing: October 23, 2020