2012 QCCA 1282, 2012 QCCA 1282

J.N. c. Company A 2012 QCCA 1282 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022280-119 ( 500-17-058531-107 ) MINUTES OF THE HEARING DATE: July 6, 2012 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. MARIE ST-PIERRE, J.A. APPELLANT ATTORNEY J.N. Mtre Louise Valiquette (absent) SOGOLEX AVOCATS INC . RESPONDENTS ATTORNEY [COMPANY A] SOCIÉTÉ DE L'ASSURANCE AUTOMOBILE DU QUÉBEC Me Julien Gaudet-Lachapelle (absent) RAICHE, PINEAULT, TOUCHETTE MISE-EN-CAUSE ATTORNEY COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL TRIBUNAL ADMINISTRATIF DU QUÉBEC

Motion for leave to appeal of a judgment rendered on November 24, 2011 by Honourable Justice Jean-Yves Lalonde of the Superior Court, district of Montreal. Motion of the appellant for permission to adduce indispensable new evidence. Amended motion of the appellant for permission to adduce indispensable new evidence. Clerk: Marcelle Desmarais Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing of July 5, 2012. BY THE COURT: Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT

[ 1 ] J.N. seeks leave to appeal from a judgment of the Superior Court, District of Montreal, rendered on November 24, 2011 (with transcribed reasons dated January 19, 2012), in which the Honourable Mr. Justice Jean-Yves Lalonde dismissed a motion to revoke a judgment of the Superior Court. The latter judgment, rendered by the Honourable Madam Justice Pepita Capriolo on July 6, 2011 (with transcribed reasons dated August 1, 2012), dismissed Mr.

N.’s motion for judicial review of a decision of the Administrative Tribunal of Quebec which in turn confirmed a decision of the Société de l’assurance automobile du Québec that denied Mr. N.’s application for compensation for visual impairment that he claimed arose out of an automobile accident on February 25, 2003. [ 2 ] Mr. N. has also filed a motion to adduce new evidence in support of his appeal pursuant to

article 509, paragraph 2, C.C.P. [ 3 ] The motion for leave to appeal was deferred to the Court by our colleague Hilton, J.A., with extensive reasons, on June 7, 2012. [1] Mr. N. had sought to rely on new evidence at the hearing before Hilton, J.A. at which time our colleague indicated that it would be useful, given his limited powers as a judge in chambers, for the applicant to present a formal motion under

article 509, para. 2 C.C.P. to the Court so that it could be adjudicated upon at the same time as the motion for leave to appeal. Mr. N. has proceeded on that basis. [ 4 ] For the reasons that follow, the Court dismisses the motion for new evidence and dismisses the motion for leave to appeal. I Background [ 5 ] Hilton, J.A. provided a useful account of the relevant events and legal proceedings in his judgment on the leave application. It is sufficient for present purposes to recount the following as background. [ 6 ] Mr. N. claims that he suffered significant visual impairment as a result of the car accident.

The SAAQ refused compensation on the basis that, in its view, there was no causal relationship between the car accident and the impairment from which Mr. N. suffers. On December 7, 2007, the Administrative Tribunal of Quebec confirmed the decision, holding that “[...] il est improbable que les lésions bénignes observées le jour de l’accident soient la cause du développement des cicatrices maculaires”. [2] [ 7 ] Mr. N. brought a first application for judicial review of this decision before the Superior Court. Tingley, J. granted that motion. The judge was strongly critical of the decision of the ATQ.

He held that the evidence as to the root cause of the accident relied upon to discount the evidence of four expert ophthalmologists and subsequently to deny Mr. N.’s claim was hearsay. The judge concluded that the decision of the ATQ was unreasonable. [3] [ 8 ] At the new hearing before the ATQ, the SAAQ introduced into evidence, in particular, documents that indicated that Mr. N. had been suffering from a disorder that brought about progressive visual impairment since the 1990s, i.e. prior to the accident, as well as certain documents relevant to his eyesight from the period after the accident.

Among the documents were certain reports signed by or attributed to Dr. Isabelle Labreque. [ 9 ] Mr. N. disputed the reliability of some of those documents. In particular, he said that Dr. Labrecque had never examined him and that certain of these documents had been forged. [ 10 ] After having considered the evidence submitted, and after having weighed conflicting expert reports, the ATQ rendered its second decision on April 7, 2010, affirming the decision of the SAAQ to deny Mr.

N. compensation. [4] [ 11 ] In confirming the SAAQ decision that there was no causal link between the accident and the visual impairment, the ATQ fixed on two main points. Firstly, it noted that Mr. N. did not show signs of visual impairment immediately after the accident, but only several months later, a fact that one expert (but not others) described as incompatible with impairment caused by the trauma of the automobile accident. Secondly, and importantly for present purposes, the ATQ pointed to documentary evidence submitted by the SAAQ that indicated that Mr.

N. suffered from a pre-existing medical condition at the time of the accident to which the visual impairment could be attributed. [ 12 ] Specifically, in paragraph [77], the ATQ referred to certain exhibits, amounting to 33 pages of documents, including a number of reports it said were signed by or to be attributed to Dr. Isabelle Labrecque. These included “[t]ous les rapports d’examens de la vue de Dre Labrecque des 10 septembre 1998, 13 août 1997, 8 octobre 1996, 6 novembre 1994, 16 novembre 1993 […]” (para. [90], see also para. [98]). Dr.

Pierre Gauvin, expert of the SAAQ, explicitly relied on one of the exhibits, which purported to record an examination by Dr. Labrecque of Mr. N. on October 8, 1996, for his conclusion that his visual impairment originated in a pre-existing condition (para. [125]). Indeed, this document was specifically singled out by the ATQ for its conclusion that Mr. N. was impaired prior to his accident.

The ATQ wrote, for example, the following: [154] Ainsi, nonobstant le témoignage du requérant, la preuve documentaire démontre que ce dernier a consulté madame Labrecque avant de consulter Dr Silver. [155] Il l’a également rencontrée à plusieurs reprises avant l’accident d’automobile du 25 février 2003.

La dégénérescence maculaire avait déjà été diagnostiquée avant cet accident de voiture et avant l’évaluation de Dr Silver. [156] À cet égard, le document produit par Dr Silver, le 27 octobre 2009, ne vient pas invalider la note de madame Labrecque du 8 octobre 1996 dans laquelle elle indique que le requérant a été vu par Dr Silver pour le problème à la macula. Dr Silver n’y écrit pas qu’il n’a pas vu le requérant avant le 1er août 2003.

Il se limite à mentionner qu’il n’a pas de dossier sur le requérant et qu’il n’en a pas retrouvé. [157] Le Tribunal réitère qu’au moment des consultations avec madame Labrecque, il était question de soins envers le requérant et nullement de documenter un dossier dans un but de contestation et d’indemnisation. [emphasis addded].

[ 13 ] Capriolo, J., sitting in judicial review of the second decision of the ATQ, found that the decision was a reasonable one within the meaning of Dunsmuir v. New Brunswick . [5] In so deciding, the judge alluded to Dr. Gauvin’s expertise and the view, embraced by the ATQ based on the documents submitted by the SAAQ, that Mr. N. had a pre-existing condition that led to the visual impairment. The judge founded her conclusion not to intervene in part on the fact that all the experts except Dr. Gauvin were mistaken about Mr. N.’s previous history: “The only one who was aware of the history [i.e. Mr.

N.’s medical history prior to the accident] and who came to testify was Dr. Gauvin. The Tribunal not only did not act unreasonably but acted in the only reasonable way, in the circumstances, in following the opinion of the doctor who had knowledge of the entire medical history” (para. [17]). [ 14 ] The judgment of Capriolo, J. was not appealed. [ 15 ] Mr. N. did apply to the Superior Court to revoke the judgment based on an allegation of new evidence.

In his motion for revocation of the judgment of Capriolo, J., he alleged that he discovered correspondence addressed to the SAAQ from the Jewish General Hospital which attested to the fact that as at August 27, 2009, the hospital had no ophthalmology records for Mr. N.. He argued that this confirmed his testimony, found erroneously to be lacking in credibility, and indicated that the SAAQ had wrongly suppressed this evidence before the courts. [ 16 ] Applying article 483 (7) C.C.P., Lalonde, J. declined to revoke the judgment of Capriolo, J.

The judge held that when the new evidence was read alongside the other documentary evidence, including reports of Mr. N.'s pre-accident medical exams, it could not have had an overriding effect on Capriolo, J.'s decision. Lalonde, J. also held that the evidence was available at the time of the hearing. In his view, Mr. N. had shown no valid grounds for revocation. [ 17 ] Mr. N. seeks leave to appeal. In support of his appeal, he has filed a motion to adduce further new evidence, distinct from that presented to Lalonde, J. II Motion for New Evidence [ 18 ] Mr.

N. seeks to file as new evidence a report from the office of the syndic of the Order of Optometrists, dated December 20, 2011, relating to a complaint lodged by him against Dr. Isabelle Labrecque. That report was written after Lalonde, J.’s decision of November 24, 2011 dismissing Mr. N.’s motion for revocation. [ 19 ] He alleges that this new evidence proves that he could not have met with Dr. Labrecque prior to 2000, as the ATQ decided, because Dr. Labrecque was not an optometrist at the time.

He states that this shows the ATQ was wrong in impugning his credibility and, by extension, Capriolo, J. and Lalonde, J. were wrong to follow suit. [ 20 ] The syndic’s report reviewed Mr. N.’s complaint against Dr. Labrecque and concluded that there was no basis for submitting the file to the Order of Optometrist’s Disciplinary Committee. On p. 2 of the December 20, 2012 report, the deputy syndic wrote the following: “Nous notons que l’optométriste Isabelle Labrecque a obtenu son droit de pratique en 2000 et que, par conséquent, toutes les actions antérieures à cette date ne peuvent lui être imputées”.

On its face, this appears to contradict the assertion in paragraph [156] of the ATQ decision, quoted in full above, that observed the existence of a “note de madame Labrecque du 8 octobre 1996 dans laquelle elle indique que [J.N.] a été vu par le Dr Silver pour le problème à la macule”. [ 21 ] To the extent that the finding that he was examined by Dr. Labrecque in the 1990s was the partial basis in fact for the finding that his condition pre-dated the automobile accident of February 25, 2003, Mr.

N. argues that the evidence of the report impugns the ATQ’s conclusions and, by extension, the dismissal of the application for judicial review by Capriolo, J. and the refusal to revoke that judgment by Lalonde, J. [ 22 ] Does the motion to adduce new evidence meet the recognized criteria under

article 509 C.C.P.? [ 23 ] In order to be allowed to adduce new evidence, a party must establish that the evidence is new, that it is indispensable, that the circumstances are exceptional, that the interests of justice requires the new evidence to be considered on appeal and, finally, that the evidence is susceptible of bringing about a different result. [6] [ 24 ] It is new, having been prepared subsequently to the oral reasons for judgment given by Lalonde, J. [ 25 ] Mr. N. says it is indispensable insofar as it demonstrates that Dr. Labrecque did not meet with Mr.

N. in 1996, and that the ATQ mistakenly relied on this information in finding that Mr. N. suffered from a pre-existing medical condition that caused his visual impairment. [ 26 ] Is the proposed evidence indispensable and would it bring about a different result if it were allowed? [ 27 ] The Court is of the view that this is not the case. [ 28 ] It is certainly true that the proposed new evidence shows that the ATQ was mistaken in writing that Mr. N. met Dr. Labrecque prior to 2000 since she was not a member of the Order before that time. However, it does not establish that Mr.

N. was not examined on October 8, 1996 and that he did not suffer from an ocular condition that could explain his visual impairment. In fact, when one examines the 33 documents that make up the lot of exhibits considered by the ATQ and by Capriolo, J., one discovers a report of an ocular examination of Mr. N., dated October 8, 1996, that is consonant with the information recorded by the ATQ in its reasons for judgment, in all but the name of Dr. Labrecque.

In this sense, the new evidence is not indispensable and would have no overriding effect on the facts of the decision that led to the administrative decision and subsequently to the judgment to dismiss judicial review. [ 29 ] It is true that the medical reports bearing Mr. N.'s name from the period prior to the accident, upon which the ATQ relied in large measure, have been attacked by him as mistakes or forgeries. It is also best to recognize that, as evidence, these reports are not beyond reproach. They are generally unsigned. Many of them refer to the patient's relationship with the Jewish General Hospital.

Mr. N. introduced into evidence before Lalonde, J. a letter that indicated that at the time of its writing the hospital had no records in Mr. N.'s

name. This lends seriousness, he says, to his claim that the medical reports bearing his name are inauthentic. [ 30 ] Moreover, the new evidence tends to show one aspect of the judgments of Capriolo, J. and Lalonde, J. that might be vulnerable if it were admitted. On judicial review, and subsequently on revocation, the judges seized of the case observed that the administrative decision rested in part on a finding that Mr. N. lacked credibility. One might suppose that the finding of credibility turned, in part, on the fact that the administrative tribunal did not believe Mr. N. when he said he never met Dr.

Labrecque. The new evidence would confirm, at least in respect of the pre-2000 medical consultations, that he was telling the truth when he said that he had not met with her at that time. [ 31 ] It remains, however, that the ATQ found the medical records to be reliable as evidence that he did have ocular exams prior to the accident. It considered Mr. N.'s claims that he had not ever met Dr. Labrecque and rejected them and, as counsel to the SAAQ points out, in the period after 2000, there was evidence in the file to suggest that he had met with Dr. Labrecque.

While the identity of the doctor was incorrectly recorded by the ATQ in at least one report, it did observe what it took as reliable evidence of visual impairment prior to the accident in the several reports of the 1990s and noted that Dr. Gauvin, as opposed to the other experts, had considered them as part of the pre-accident medical history. The new evidence brought forward now by Mr. N. does not show that finding to be unreasonable. [ 32 ] It bears mentioning that the ATQ observed that Mr. N., in his testimony, not only denied having seen Dr.

Labrecque but also spoke of a consultation with only one doctor in the period prior to the accident, at which time his eyesight was declared normal, except for the fact that he needed reading glasses (paras. [82] and [85]). The evidence in the file suggests otherwise. At para. [95], the ATQ records Mr. N. as having declared that he had no further examinations prior to the accident and submitted that the documents presented by the SAAQ are forgeries.

But beyond his own testimony, he brought no evidence to dispute the palpable evidence of the medical reports submitted by the SAAQ. [ 33 ] There was thus a basis for a negative appreciation of credibility of Mr. N. by the ATQ distinct from the question as to the identity of the doctor who examined him on October 8, 1996. Respectfully stated, Mr.

N. has not shown that the evidence he now seeks to adduce would dispel the concerns about his credibility in respect of his pre-accident medical visits that were key to the ATQ's finding against him. [ 34 ] Finally, it must be noted that in coming to its decision, the ATQ chose to prefer evidence from one group of experts, who contended that Mr. N.'s accident was not caused by trauma because of its slowness to manifest itself. It chose to set aside competing expert evidence on this point.

It cannot therefore be said that the new evidence would have resulted in a different decision on this point. [ 35 ] On balance, it cannot be said that the proposed new evidence would result in a change to Lalonde, J.'s decision on the motion to revoke in the Superior Court. [ 36 ] Consequently, the motion to adduce new evidence is dismissed. III Motion for Leave [ 37 ] In his application for leave, Mr. N. relies in large part on the new evidence of the December 20, 2011 letter from the Order of Optometrists.

Given the Court's conclusion to dismiss the motion to adduce this evidence, this argument must fail. [ 38 ] The application for leave also alleges that the decisions of both Capriolo, J. and Lalonde, J. give rise to a flagrant injustice because they failed to recognize that "prior to his accident, the petitioner had absolutely no vision problems, except the need for reading glasses". The ATQ considered the evidence, including records of medical examinations prior to the accident, and decided otherwise. The judge sitting in judicial review found this to be reasonable.

The judge sitting on the motion for revocation saw no grounds for revocation. [ 39 ] It is of course only the judgment on the motion to revoke that is the object of the application for leave. Again, Mr. N. did not appeal the judgment denying him judicial review. Mr. N. may disagree with the limited question at issue in judgment of Lalonde, J., but he has not demonstrated a flagrant injustice or other ground that that would impugn the decision not to revoke the judgment of the Superior Court. [ 40 ] With due respect for arguments made on behalf of Mr. N., he has failed to show grounds within

article 26 C.C.P. that would justify granting leave to appeal. [ 41 ] Because there was an administrative error in recording the name of the person who examined Mr. N., and that this was in part responsible for the ensuing litigation, there will be no order as to costs. FOR THESE REASONS , the Court: [ 42 ] DISMISSES the motion to adduce new evidence, without costs; [ 43 ] DISMISSES the motion for leave to appeal, without costs.

NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. MARIE ST-PIERRE, J.A.