2013 QCCA 1902, 2013 QCCA 1902

Michalakopoulos c. Hachem 2013 QCCA 1902 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023027-121 (500-17-036685-074) MINUTES OF THE HEARING DATE: November 8, 2013 THE HONOURABLE MR. JUSTICE YVES-MARIE MORISSETTE APPELLANT PETER MICHALAKOPOULOS In person RESPONDENTS ATTORNEY MARCEL HACHEM CAFÉ VIENNE CANADA INC. LES CAFÉS V.P. INC. LE GROUPE CAFÉ VIENNE 1998 INC. PRESSE CAFÉ INC. Mtre Ève Gaudet BORDEN LADNER GERVAIS APPELLANT'S APPLICATION TO EXTEND THE DELAY TO FILE THE APPELLANT'S FACTUM

Clerk: Elena Captari Courtroom: RC.18 HEARING The hearing of the motion took place on November 7 th , 2013. 9 h 30 Judgment : see next page. Elena Captari Clerk JUDGMENT [ 1 ] On September 10, 2012, the Superior Court, district of Montreal (the Honourable Kirkland Casgrain), dismissed the appellant’s action in which he claimed $ 233,765.47 from the respondents. The appellant is a former member of the Bar who appears in person. One month after the judgment of September 10, he lodged an appeal. He also filed with the Court a motion for leave to appeal which a judge of the Court dismissed on January 22, 2013, on the ground that the judgment a quo was appealable as of right. [ 2 ] Pursuant to

article 503 C.C.P. , the appellant therefore had until February 7, 2013, to file his factum. [ 3 ] On February 4, and in compliance with articles 503.1 and 508.2 C.C.P. , the appellant filed an “ application de bene esse to fix- extend the delay to file the factum ” and asked for permission to file his factum “no later than May 22, 2013”. The motion was presented on February 14, at which point my colleague Madam Justice Bich authorized the appellant to file his factum “no later than May 22, 2013”. [ 4 ] On May 13, the appellant filed a second motion, identical in substance to the earlier one, asking for a further extension until June 25. Pursuant to

article 509.1, an assistant clerk of the Court granted the motion, which was not contested. [ 5 ] The appellant sought a third extension on June 20, asking that he be permitted to file his factum “no later than July 8”. The motion was not contested and an assistant clerk of the Court granted it on June 25. [ 6 ] The appellant sought a fourth extension on July 8, asking that he be permitted to file his factum “no later than September 16”.

Once more, the motion was not contested and an assistant clerk of the Court granted it on July 10. [ 7 ] The appellant sought a fifth extension on September 13, asking that he be permitted to file his factum “no later than October 21”. The appellant and counsel for the respondents appeared before an assistant clerk on September 18. The respondents did not contest the motion but asked that any further delay be made peremptory. In her brief reasons, the assistant clerk stated, inter alia : [1] I am seized with appellant's fifth motion to extend the delay to file his factum.

He submits that the additional delay is necessary for him to obtain funds to pay for the transcripts and the factum. He assures me that he will be able to file his factum no later than October 21, 2013. […] [3] Given the circumstances, I am of the view that the extension sought is justified. However, the fact remains that this is appellant's fifth motion for extension. […] [4] The motion is GRANTED ;

[5] The delay to file appellant's factum is extended until October 21, 2013, this delay being peremptory. The appellant is hereby advised that should he be unable to file his factum by that date, his motion for extension will have to be presented to a judge of the Court; [ 8 ] Finally, on October 18, the appellant sought a sixth extension, asking (mistakenly) that he be permitted to file his factum “no later than October 21”.

The extension of September 18 having been fixed peremptorily, the matter was referred to a judge, and by an oral amendment during yesterday’s hearing before me, the appellant corrected his error and asked that December 6 be the new latest date for the filing of his factum. [ 9 ] If I turn now to the allegations contained in these six separate motions, I note that the reasons for which the extensions were sought varied over time. [ 10 ] In his motion of February 4, the appellant contended, erroneously in my view, that the 120 day period mentioned in

article 503 C.C.P. started to run on January 22, 2013, when his unnecessary motion for leave to appeal was dismissed. And indeed, if this date had been the right starting point, May 21 (not 22) would have been the deadline for filing his factum. But, be that as it may, on that ground alone, and the appellant offered no other ground, he was granted until May 22 to file his factum. [ 11 ] His five subsequent motions raised altogether different grounds.

A ground which appears in his motion of May 13, and which is reiterated with a different numbering in each one of his four subsequent motions, states what follows: 4. Due to several reasons, some of them beyond the control of the Appellant, such as delay to prepare the transcription of four day hearing, the cost of such a transcription, the hectic

schedule of the Appellant and other financial grounds, health reasons and time constraints, the Appellant will not be able to produce the Appellant's factum by May 22, 2013 as fixed by the Honourable Court. Only the date mentioned in this last paragraph changes afterwards. Another ground which is found in the motion of June 20 and, with slight variations, all three subsequent motions, is worded thus : 11.

The transcripts are almost completed and the Appellant has been working on obtaining the funds to pay for the transcripts and the cost of the factum, a task that had proved to be extremely difficult as well and now expects to be able to do all that within eleven (11) weeks or so of the present date In his motion of July 8, the appellant adds the following ground, which reappears un​changed in the two subse​quent motions: 6.

The Appellant's very close friend has been extremely sick for the past couple of months and particularly the last three weeks and that has also consumed a lot of Appellant's time that could have been applied to the preparation of the factum in this file[.] Other intervening reasons for granting an extension include the allegations listed below. In the motions of July 8, September 13 and October 18 (with slight changes in the form of occasional updates): 8.

The Appellant had over a month ago purchased a plane ticked to go to Greece to take care of some urgent matters there as well and will be away for three (3) weeks, departing July 13, 2013 and can only continue the preparation of this factum upon his return to Montreal in the beginning of August. 9. There also appeared to be a small but reasonable possibility to dispose of this appeal between the parties without the necessity to proceed with a hearing on the merits, but that possibility seemed to have disappeared but Appellant is still optimistic that there may still be a possibility to settle. 10.

Appellant still has a hope that there may still be a possible disposition of the appeal without having to proceed on the merits, if an additional delay is granted so the parties will have more time to further discuss, a result that would be beneficial for everyone, as well as in the interest of justice. Finally, two other grounds are stated in the motions of September 13 and October 18: 8. The Appellant only obtained the Respondent's Exhibits that were filed in the Superior Court file from the Respondent's attorney last Friday July 5, 2013, as same had been removed from the Court file.

Said Exhibits were given by the Respondent's attorney without delay once the request was made and the Appellant does not in any way makes this statement to reflect against the Respondent but only for the purposes of stating the facts. 14. The Appellant has a serious appeal and is claiming moneys that he worked for very hard as an attorney for the Respondents and he was never paid by them despite the benefit that the Respondents derived from the work of the Appellant and now enjoy the fruits of the labour of the Appellant which has given the Respondents substantial wealth.

Accordingly, it would be unfair that the Appellant be deprived of receiving the moneys that he worked very hard for. [ 12 ] What is one to make of all this? [ 13 ] Unless one assumes that the appellant displays in his pleadings a form of mendacity, which I am not prepared to do, the reasons he offers, though perhaps somewhat shifty, are reasonably serious if taken at face value.

The respondents are running out of patience, and one easily understands why, but they did not contest the appellant’s motions and it is only late in the day, on September 18, that they insisted that the deadline of October 18 be made peremptory. [ 14 ] My task might be easier if I could take into account the seriousness of the grounds of appeal and their likelihood of success, but I do not believe that, in disposing of a motion such as this one, I may approach the matter in the same way a panel will deal with an application for a special leave to appeal under

article 523 C.C.P. After all, the appeal here was regularly formed, no matter how chaotic its progression has been since October 10, 2012, the 120-day deadline set out in

article 503 C.C.P. , unlike the 30-day dealine of

article 494, is not peremptory, and if what the appellant asserts in his sworn affidavit is to be believed, the completion of the factum is closely in

sight. [ 15 ] I will therefore grant the motion, but make it subject to a precise and irreversible condition: if the factum is not filed by the close of business on December 6, the appeal shall be declared abandoned with costs. This extension of 29 days is the last one and the deadline shall be considered peremptory.

I shall remain seized of the matter and, as I chair a panel on December 9 at 9h30 in the Lamer courtroom, I will declare the appeal abandoned on that day, in that courtroom and at 9h15 in the event that the appellant’s factum is not already filed with the Court. [ 16 ] FOR THESE REASONS: [ 17 ] THE MOTION IS GRANTED , costs to follow the outcome of the appeal; [ 18 ] APPELLANT is ordered to file his factum by the close of business on December 6, 2013, at the latest. YVES-MARIE MORISSETTE, J.A.