2018 QCCA 2172, 2018 QCCA 2172

Pileggi c. Paliotti 2018 QCCA 2172 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027945-187 (500-17-087908-151) MINUTES OF THE HEARING DATE: December 18, 2018 THE HONOURABLE nicholas kasirer, J.A.

PETITIONER COUNSEL DOMENICO PILEGGI Mtre ANGELO CAPUTO Mtre LUCIA VALVANO ( Caputo Machico Valvano ) RESPONDENTS COUNSEL PAOLO PALIOTTI JULISSA QUEVEDO Mtre Julien Delangie Mtre GEETA NARANG ( Narang & associés, s.e.n.c. ) IMPLEADED PARTY COUNSEL THE FIRST SPIRITUAL CENTER OF MONTREAL Mtre JULIEN DELANGIE Mtre GEETA NARANG ( Narang & associés, s.e.n.c. ) DESCRIPTION: Amended application for leave to appeal from a judgment rendered on October 17, 2018, by the Honourable Justice Gregory Moore of the Superior Court, District of Montreal. (Art. 30 para. 2, 357 C.C.P. )

Clerk: Mihary Andrianaivo Courtroom: RC.18 HEARING 10:44 Commencement of the hearing. Exchanges between the Judge and Mtre Angelo Caputo. 10:47 Submissions by Mtre Caputo. 11:02 Recess. 11:20 Resumption of the hearing. Mtre Caputo continues with his submissions. 11:27 Submissions de Mtre Julien Delangie. 11:33 Rebuttal by Mtre Caputo. 11:38 BY THE JUDGE: The judgment will be delivered at 16:00, today. The presence of the Parties is not required. End of the hearing. 16:15 JUDGMENT: See page 3.

Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Domenico Pileggi seeks leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Gregory Moore), rendered on October 17, 2018, which dismissed his action in defamation brought against defendants Paolo Paliotti and Julissa Quevedo. The Première église spirituelle de Montréal/First Spiritual Center of Montreal was named as an impleaded party. The judge granted the defendants cross-demand and declared Mr. Pileggi’s action to be an abuse of procedure within the meaning of

article 51 C.C.P . He ordered Mr. Pileggi to pay each of the defendants $8,000 in moral damages as well as $86,128.01 to the First Spiritual Center of Montreal in extrajudicial fees and reimbursements. [ 2 ] The judge decided that the defendants had not defamed the plaintiff and that their conduct did not cause damage to his reputation. He refused to grant the plaintiff injunctive relief given the absence of fault and the fact that the plaintiff had not come to court with “clean hands”.

In that latter connection, the judge characterized the judicial application brought against the defendants as “an inappropriately aggressive use of court procedure”. Plaintiff Pileggi was held to have caused damage to the other parties for which compensation was owed pursuant to

article 54 C.C.P. [ 3 ] In his amended application, petitioner Pileggi seeks leave to appeal as well as an order to suspend provisional execution of the judgment notwithstanding the appeal. *** [ 4 ] Petitioner must obtain leave pursuant to

article 30, paragraph 2 (3) C.C.P . As I read the judgment, the judge held that the action was clearly unfounded and constituted an improper use of procedure that caused damage to the defendants and the impleaded party as a result of a civil wrong. (The parties before me are of the same view). The Court has recently confirmed that leave to appeal is required pursuant to

article 30, paragraphs 2 (3) and 3 C.C.P . in such circumstances: 2741-8854 Québec inc. v. Restaurants King Ouest inc ., 2018 QCCA 1807 , paragr. [13] et seq . [ 5 ] Accordingly, the petitioner must do more than a raise a mere error committed by the trial judge see, e.g., Ville de Montréal v. Consultants SM inc. , 2017 QCCA 1372 , para. [9] (judge in chambers).

Article 30, paragraph 3 C.C.P . indicates that leave will only be

granted if the petitioner shows that the matter at issue is one that should be submitted to the court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions. [ 6 ] This choice rests on sound legislative policy, tested by the courts. By subjecting appeals in matters of improper proceedings to leave, and by imposing a requirement more stringent than mere error, the legislature recalls the negative impact that ongoing abusive conduct in appeal can have on access to justice.

Judgments appealable on a wider basis – whether of right or by leave based on mere error – could encourage obstinate litigants to persist in abusing process at the appellate level which, as a result, could inappropriately encumber the Court’s docket for others. (See, on this theme, the remarks of Rochon, J.A. in chambers in Pogan v. Benaroche , 2010 QCCA 621 , paragr. [13] , confirmed by the Court in Savoie v.

Thériault-Martel , 2015 QCCA 591 ). [ 7 ] Further, leave should not be granted if the prospective appeal has no reasonable prospect of success, however compelling a question raised might appear in the abstract. As the Court wrote in Syndic de Laviolette , 2017 QCCA 170 , para. [18] : “Permettre un appel voué à l’échec n’est pas dans le meilleur intérêt de la justice”. *** [ 8 ] In his application for leave, the petitioner raises a veritable litany of supposed errors in the judgment a quo . [ 9 ] The most sweeping of these are various errors alleged against the judge’s finding that there was no defamation.

Citing Prud’homme v. Prud’homme , 2002 SCC 85 , para. 32 et seq. , the judge treated the statements attributable to the defendants by letter and otherwise as potentially unfavourable but true. As such, they would be defamatory if it was shown that the defendants disseminated them without valid reason. He found, after extensive consideration of the evidence, that they were not defamatory, noting that “it was reasonable and responsible for the board to take seriously the allegations against Mr.

Pileggi and to tell him so” (para. [36]). [ 10 ] The petitioner argues that the statements relating to his supposedly inappropriate sexual conduct were not true but fabricated as a pretext to exclude him from the Spiritual Center.

Here it seems to me that the petitioner misreads the judgment: the trial judge takes care to say that the letter recorded the existence of “serious allegations of inappropriate behaviour”, without saying whether the allegations themselves were true or false and without specifically saying that the petitioner’s conduct had been sexually inappropriate in his interaction with some female members of the congregation. What was true was the fact that the allegations were made. [ 11 ] The judge’s finding that there was no defamation is highly factual and merits deference on appeal.

The petitioner has failed to raise a question relating to this finding that deserved the attention of the Court. Moreover, his arguments relating to the judge’s errors of fact strike me as weak in light of the well-established rule that only palpable and overriding errors of this nature would entitle the Court to disturb this finding. [ 12 ] The same may be said of the various arguments that the judge erred in respect of his conclusion – again highly factual – that the petitioner suffered no damage caused by the defendants.

There may or may not be errors made in the judgment in respect of some of the details of the interaction between the petitioner, the defendants and the various actors in the Spiritual Center, but none of them is of significance and none of them has any overriding impact on the judge’s finding that there was insufficient proof of fault, damage and causation. [ 13 ] As to the finding of abuse, here too the petitioner contests the judge’s evaluation of the facts leading to his conclusion that the petitioner’s action was “an inappropriately aggressive use of court procedure”.

The judge noted that, after weighing the evidence, that the action had no foundation in the absence of any proof of damage and with questionable evidence of fault. Deference is owed to the judge in respect of this factual aspect of a finding of abuse of proceedings: Centre commercial Innovation inc. v. Institut de dermopigmentation , 2011 QCCA 1954 , para. [2] . By his various arguments, the petitioner seeks to retry this matter which, needless to say, is not the function of the Court.

The sum of his arguments is a far cry from constituting a question meriting the attention of the Court. [ 14 ] It is of no moment that, prior to the judge’s full review of the facts, motions to dismiss the action brought by the defendants had been dismissed. In response to these proceedings, the petitioner was given the benefit of the doubt.

This does not change the fact that when all the evidence was in, the judge was entitled to conclude that the action amounted to an abuse of proceedings. [ 15 ] The judge plainly understood the petitioner’s conduct before the courts as amounting to a civil wrong that caused harm, in particular as an exercise designed to put the defendants and the Spiritual Center under personal and financial strain. While the judge does not use these specific terms found in

article 51 C.C.P., one understands he is of the view that the petitioner’s conduct before the court was “excessive” and “unreasonable”, and amounts to an “attempt to defeat the ends of justice” by using the defamation suit to achieve another purpose – in short, a civil fault that gives rise to a claim for compensation. [ 16 ] At the hearing, the petitioner argued that the judge’s evaluation of the extrajudicial fees and disbursements was unfair in that he did not have the opportunity to argue his objections to the invoices produced.

He says this raises a matter of principle as to how like damages should be evaluated in abuse proceedings. [ 17 ] This argument is rejected. The judge gave the petitioner an opportunity to make written representations on abuse, and comments were made on the invoices. [ 18 ] At the end of the day, the petitioner has failed to raise a question of merit here and failed further to show that the proposed appeal has a reasonable chance of success.

I would go further: the factual character of the questions raised, given the advantage the judge had in reviewing the evidence over a six-day trial and the deference owed to triers of fact by this Court on such matters, suggests strongly that an appeal would have no reasonable chance of success: see Houda-Pépin v. Leduc , 2017 QCCA 1212 , para. [13] (judge in chambers). [ 19 ] Finally, given that leave has been denied, the application to suspend provisional execution of the judgment should also be dismissed as being without further object.

FOR THE AFOREMENTIONED REASONS , the undersigned: [ 20 ] DISMISSES the application for leave to appeal; [ 21 ] DISMISSES the application for suspension of provisional execution of the judgment; [ 22 ] THE WHOLE , with legal costs. nicholas kasirer, J.A.