2016 QCCA 1282, 2016 QCCA 1282

Lubecki c. Granby (Ville de) 2016 QCCA 1282 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026241-166 (460-17-002093-151) MINUTES OF THE HEARING DATE: August 5, 2016 CORAM: THE HONOURABLE MARTIN VAUCLAIR , J.A. GENEVIÈVE MARCOTTE , J.A. MARK SCHRAGER , J.A. PETITIONNER WILLIAM JOHN LEOPOLD (MINER) LUBECKI IN PERSON RESPONDENT COUNSEL VILLE DE GRANBY Mtre RAPHAEL ALLARD (Normandin Gravel Rhéaume Avocats Inc .)

On appeal from judgment rendered on April 15, 2016 by the Honourable Justice Claude Villeneuve of the superior Court district of Bedford DESCRIPTION : Application for leave to appeal after the expiry of time limit. (Article 363 C.c.p .) Clerk: Julie B. Gravel Courtroom: Pierre-Basile-Mignault HEARING 9:32 Beginning of the hearing. Recess of the hearing. 10:45 Resumption of the hearing 10:46 Verbal application by Mr. Lubecki to recuse Mme Justice Marcotte. 10:49 Recess of the hearing. 10:53 Resumption of the hearing.

By the Court: The Court unanimously dismisses the application for recusation of Mme Justice Marcotte. Judgment – see page 3. 10:54 Representations of Mr. Lubecki on his application for leave to appeal after the expiry of time limit. 11:07 Recess of the hearing 11:11 Resumption of the hearing. The Court advises Mtre Allard that will not be necessary to hear his submissions. 11:12 By the Court: The reasons will be recorded in the minutes of today’s hearing. Judgment – see page 3. 11:13 Conclusion of the hearing. Julie B. Gravel Clerk BY THE COURT

JUDGMENT On the question of recusation for partiality of a member of this panel: [ 1 ] Mr. Lubecki raises a question of possible partiality by one of the members of this panel. The case heard by Mme Justice Marcotte was not related in any way to the current case. [ 2 ] Mr. Lubecki does not show that a reasonable person would see in this situation any reasonable apprehension of partiality. FOR THE FOREGOING REASONS , the Court: [ 3 ] DISMISSES the verbal application for recusation, without legal costs.

On the application for leave to appeal after the expiry of time limit: [ 4 ] Applicant seeks leave to appeal after the expiry of delays of the judgment of the Superior Court, District of Bedford of April 15, 2016 (the Honourable Claude Villeneuve) which dismissed the Applicant's motion in revocation of judgment. [ 5 ] For the reasons which follow, the Application cannot be granted. [ 6 ] In 2015, Applicant contested before the Superior Court a notice of expropriation which he received from the Respondent.

His proceeding was dismissed pursuant to Article 165 (4) of the then Code of Civil Procedure as being unfounded in law. Applicant's appeal was dismissed by this Court on January 11, 2016 pursuant to a motion since, in addition to procedural irregularities, the grounds raised by Applicant went to the suitability or expediency and not to the legality of the City's decision to expropriate. [ 7 ] After his appeal was dismissed, Applicant sought the revocation of the 2015 Superior Court judgment, alleging that a subsequent newspaper

article had revealed new facts. His motion was denied because it was not filed in a timely fashion and the alleged new facts were not unknown to the Applicant as they appeared from documents which he himself had filed in the Court record. [ 8 ] Applicant now seeks leave to extend the time limit to appeal that judgment. [ 9 ]

Article 363 C.C.P. provides that Applicant's motion can only be granted if he demonstrates the impossibility to have acted within the delays and that his appeal has a reasonable chance of success. [ 10 ] Neither criterion is satisfied. [ 11 ] The tardiness of Applicant's motion may be due to his ignorance of the rules of procedure but this does not constitute an impossibility to have acted within the prescribed delays which are mandatory. [ 12 ] Secondly, on the face of Applicant's motion he is seeking to have a second go at contesting the advisability of the proposed expropriation which position has already been ruled inadmissible by the Superior Court and by this Court in the judgment as referenced above.

Accordingly, the proposed appeal has no reasonable chance of success. FOR THE FOREGOING REASONS , the Court: [ 13 ] DISMISSES the motion, with legal costs. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A.