2019 QCCA 2049, 2019 QCCA 2049

Collins c. City of Gatineau 2019 QCCA 2049 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028569-192 (550-17-010905-196) DATE: November 28, 2019 BEFORE THE HONOURABLE BENOÎT MOORE, J.A. R. MAXINE COLLINS APPLICANT – Plaintiff v.

CITY OF GATINEAU RESPONDENT – Defendant JUDGMENT [ 1 ] The applicant seeks leave to appeal a judgment of the Superior Court, District of Gatineau (the Honourable Justice Dominique Goulet), dated August 20, 2019, that established the case protocol in the present matter. [ 2 ] The applicant instituted civil liability proceedings against the respondent for damages resulting from the respondent’s refusal to inspect the building of which she is the lessee and intervene in connection with toxic fumes and air pollution. [ 3 ] On May 14, 2019, the trial judge rejected the case protocol submitted, because it had not been signed by the applicant, and he issued a case management order for June 17, 2019.

The case management was postponed at the request of the applicant, who subsequently presented several other applications, including one for the recusation of Justice Goulet. [ 4 ] The case management conference finally took place on August 20, 2019 in the presence of both parties. At that time, the court discussed the various points of the protocol with the parties and explained the conduct of the proceeding to the applicant.

At the end of the conference, the court established the protocol by means of the following conclusions: THE COURT: CONSIDERING that the case management conference was scheduled since the first case protocol has not been signed by the parties; CONSIDERING that the Court has examined the case protocol, discussed it with the parties and determined the different deadline dates; CONSIDERING that the first case protocol attached to the present order will be the one in force; FOR THESE REASONS: THE COURT: DECLARES that the case protocol attached will be the protocol in force between the parties; AND ORDERS the parties to respect its terms, which includes but without limitations the filing of exhibits for the Plaintiff on or before September 3rd, 2019. [ 5 ] The applicant argues that the protocol accepted by the court causes her irreparable harm, because she will have to disclose her evidence before the defendant does and she will be examined before the defendant has even filed its defence. [ 6 ] She also argues that the protocol was established despite her refusal to sign it, thereby violating

article 17 of the Code of Civil Procedure and her right to be heard. [ 7 ] Lastly, she submits that she presented an application for recusation under

article 201 of the Code of Civil Procedure , an application on which the trial judge didn’t decided. [ 8 ] The applicant bases her application for leave to appeal on both articles 31 and 32 of the Code of Civil Procedure .

[ 9 ] A judgment establishing a case protocol because of the parties’ inability to agree is [ translation ] “[…] a pure case management decision”. [1] As such, leave to appeal such a judgment is governed by

article 32 of the Code of Civil Procedure . Consequently, in principle, the appeal of such a judgment is not possible, unless the applicant establishes that the management measure appears unreasonable in light of the guiding principles of procedure. [ 10 ] That is not the case here. The court established the case protocol following a case management conference which, as the minutes indicate, lasted nearly two hours and during which, notwithstanding what the appellant claims, she had the opportunity to be heard and to present her point of view.

The court also took the necessary time to explain the procedure to the applicant as well as the impact of the various stages. Moreover, it does not appear from the protocol established by the court that it is unfavourable to the applicant or harms her in any way whatsoever, or that it is otherwise unreasonable. [ 11 ] As for the issue regarding the application for recusation, it cannot be a ground for appealing the judgment establishing the protocol. The case management conference took place, the applicant participated therein and she did not raise her application for recusation.

She cannot now do so by means of an appeal. [2] [ 12 ] For these reasons, the applicant has not established that the management measure she wishes to appeal is unreasonable. FOR THESE REASONS, THE UNDERSIGNED: [ 13 ] DISMISSES the application for leave to appeal, with legal costs. BENOÎT MOORE, J.A. R. Maxine Collins UNREPRESENTED Me Martin Leblanc PAINCHAUD BERTRAND LEBLANC For the respondent Date of hearing: November 25, 2019