2015 QCCQ 5968, 2015 QCCQ 5968

Barreau du Québec c. Michalakopoulos 2015 QCCQ 5968 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No: 500-80-026539-131 DATE: July 9, 2015 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ BARREAU DU QUÉBEC Plaintiff v.

PANAGIOTIS (PETER) MICHALAKOPOULOS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Defendant Panagiotis Michalakopoulos (“ Peter Michalakopoulos ”), a former lawyer and former member of the Barreau du Québec, presents a Motion in Revocation (“ Second Motion in Revocation ”) of a judgment rendered by Judge Jean Keable, J.C.Q. on April 14, 2015 (“ Keable Judgmen t”).

The Keable Judgment dismissed Peter Michalakopoulos’ previous Motion in Revocation (“ First Motion in Revocation ”) of a judgment rendered on October 1, 2014 by Judge Marie Michelle Lavigne, J.C.Q. (“ Lavigne Judgment ”). Question in Issue [ 2 ] Is there a valid ground to receive the Second Motion in Revocation regarding the Keable Judgment?

Context [ 3 ] The Lavigne Judgment granted an Introductory Motion of the Barreau du Québec “ Barreau Collection Motion ” seeking the homologation of certain decisions rendered by the Comité de discipline du Barreau du Québec against Peter Michalakopoulos to pay certain amounts owed pursuant to such decisions, the whole totalling the sum of $4,352.74. The Barreau Collection Motion was instituted on September 10, 2013. [ 4 ] However, initially Peter Michalakopoulos did not appear in the case.

On June 13, 2014, Peter Michalakopoulos made a Motion to be Relieved of Default to Appear and that motion was granted by Judge Alain Breault, J.C.Q. As appears from Judge Breault’s judgment, the trial date was immediately scheduled for October 1, 2014. [ 5 ] The case was set for trial before Judge Marie Michelle Lavigne on that date. It appears from the minutes of the hearing that Defendant was called four (4) times on the Court’s public announcement system and did not appear.

At 10h13, the Court proceeded to hear the case ex parte in light of the absence of Peter Michalakopoulos. [ 6 ] The Lavigne Judgment was rendered off the bench condemning Peter Michalakopoulos to pay $4,352.74, with costs.

[ 7 ] Peter Michalakopoulos claims that he arrived after the hearing was over and he noted that his case had been completed. He claims he was unaware as to what happened after the hearing, so he decided to wait and see the outcome. [ 8 ] Peter Michalakopoulos alleges that he was unaware of the Lavigne Judgment rendered by default on October 1, 2014. [ 9 ] As appears from the Court record, on November 12, 2014, the Barreau du Québec served its bill of costs pursuant to the Lavigne Judgment for $533.27 on Peter Michalakopoulos at his domicile in Greenfield Park, Quebec.

The bill of cost was served on his sister Tania Michalakopoulos. The address used was the same as that declared by Peter Michalakopoulos at the hearing before the undersigned. [ 10 ] On December 17, 2014, the Barreau du Québec executed a writ of seizure of $5,342.45 on Peter Michalakopoulos regarding amounts owed in capital, interest and costs pursuant the Lavigne Judgment. [ 11 ] On December 30, 2014, Peter Michalakopoulos made a First Motion in Revocation regarding the Lavigne Judgment.

In the motion, he claims that he first became aware of the Lavigne Judgment at the time of the seizure on December 17, 2014. [ 12 ] Peter Michalakopoulos submits that: (

a) despite being aware of the trial date of October 1, 2014; (

b) despite turning up late after the hearing was over; and (

c) despite failing to act in any way during the period from October 1, 2014 to the end of December 2014, he was allegedly unaware of the outcome of the ex parte hearing before Judge Lavigne. [ 13 ] Peter Michalakopoulos also submits that despite the service at his residence on November 12, 2014 of the bill of costs pursuant to the Lavigne Judgment, he was still unaware of the Lavigne Judgment. [ 14 ] On February 13, 2015, the First Motion in Revocation of the Lavigne Judgment was heard in part by Judge Keable.

According to the minutes in the Court file, the hearing took place from 10h41 to 12h07 in Practice Court (Room 2.06 of the Montreal Court-house). Judge Keable remained seized of the First Motion in Revocation, issued certain interim orders, including the reception of the First Motion in Revocation and the requirement of deposit into Court of amounts owed, and scheduled a continuation of the hearing for April 14, 2015 to rule upon the merits of First Motion in Revocation. [ 15 ] On April 14, 2015, according to the minutes of the Court file, the hearing started at 9h34 and continued to 10h13.

Therefore, combining the two hearing dates, the total hearing time was 3 hours and 5 minutes. At the hearing on April 14, 2015, Maître Bishai, representing the Barreau du Québec, made representations on certain defaults by Peter Michalakopoulos as to deposit amounts pursuant to the interim orders of Judge Keable at the conclusion of the hearing of February 13, 2015. Maître Bishai then declared that he had no further proof to make before argument. [ 16 ] At 9h40, Mr.

Peter Michalakopoulos was sworn in as a witness and was given an opportunity to complete and present his version of the facts and any other proof he intended to present. Peter Michalakopoulos was cross-examined by the attorney of the Barreau du Québec and questioned by the Court. [ 17 ] After testifying, Peter Michalakopoulos declared that his proof was closed and he would proceed to submissions. After closing submissions by both parties were heard, Judge Keable took the matter under advisement and rendered the Keable Judgment on April 20, 2015.

Analysis and Decision [ 18 ] As stated, on April 14, 2015, after Peter Michalakopoulos testified, he was specifically asked by the Court whether his proof was closed. As a former lawyer, Peter Michalakopoulos knew exactly the meaning of that question and the consequences of declaring his proof closed. The undersigned listened to the recording of that hearing. Responding to the question of the Court, Peter Michalakopoulos answered that “yes” his proof was closed [1] . He also stated that he did have representations to make in argument.

[ 19 ] Therefore, with full knowledge, Peter Michalakopoulos decided not to have his sister, who was present at the hearing of April 14, 2015, testify on the question of Peter Michalakopoulos’ knowledge of the existence of the Lavigne Judgment despite the service of the bill of costs on his sister at his place of residence on November 12, 2014. [ 20 ] On April 30, 2014, the Keable Judgment dismissed the First Motion in Revocation with respect to the Lavigne Judgment. In particular, Judge Keable held: « [8] À l’audience du 14 avril 2015, M.

Michalakopoulos ne demande pas à sa sœur Tania de témoigner pour confirmer son témoignage du 13 février 2015 sur l’absence d’information quant aux documents valablement signifiés le 12 novembre 2014. [9] Le Tribunal conclut que le témoignage de M. Michalakopoulos du 13 février 2015 et son affidavit du 30 décembre 2014 ne sont pas dignes de foi quant à l’absence de connaissance du jugement du 1 er octobre 2014 avant le 17 décembre 2014.

Il faut donc retenir que la signification conforme à la loi du 12 novembre 2014 doit avoir effet de connaissance du jugement faute de preuve à l’effet contraire lorsque l’occasion a été donnée de la faire. » [ 21 ] On May 26, 2015, Peter Michalakopoulos served the Second Motion in Revocation, this time with respect to the Keable Judgment. [ 22 ] It is this Second Motion in Revocation that is before the undersigned. In his Second Motion of Revocation, Peter Michalakopoulos now alleges that: (

a) Judge Keable had an obligation to notify Peter Michalakopoulos that the Court required his sister Tania Michalakopoulos to testify; (

b) Peter Michalakopoulos was prevented from producing the proof of his sister’s testimony; (

c) Judge Keable mislead Peter Michalakopoulos with regard to relevant proof; and (

d) Peter Michalakopoulos was tricked by the silence of Judge Keable as to whether to call his sister to testify. [ 23 ] In particular, Peter Michalakopoulos’ Second Motion in Revocation contains the following paragraphs: 29. The Honourable Judge did not request from the Defendant to have Tania Michalakopoulos testify on that date and proceeded directly on the merits of the file when prior to proceeding he almost closed the hearing after some preliminary remarks made by the Plaintiff’s attorney, the whole as it appears from the minutes of the hearing in the present file; 30.

Accordingly, the Honourable Judge Jean F. Keable, j.c.q., prevented the Defendant from producing the proof that he states was not produced by using his authority during the trial and misleading the Defendant on how to proceed and thus by his actions he excluded the [sic], apparently essential proof of the Defendant, by the testimony of Tania Michalakopoulos; 31. It is respectfully submitted that the Honourable judge had an obligation to notify the Defendant that he required Tania Michalakopoulos to testify on the merits on certain facts that the Honourable Judge wanted to hear any testimony; 32.

The Defendant could not have known what was in the Honourable Judge’s mind, he Honourable Judge Jean F. Keable, j.c.q., had to state to the Defendant what was in his mind and what he wanted him to do; 34. It is respectfully submitted that the Defendant was tricked by the silence of the Honourable Judge at the hearing of April 14, 2015 and that caused the Defendant not to make proof that the Honourable Judge considered essential to grant the Revocation at the second stage; [ 24 ] Peter Michalakopoulos’ Second Motion in Revocation is based upon Articles 482 and 483 of the Code of Civil Procedure .

These articles read as follows:

482. A party condemned by default to appear or to plead may, if he was prevented from filing his defence by surprise, by fraud or by any other reason considered sufficient, request that the judgment be revoked and that the action be dismissed. The motion, addressed to the court which rendered the judgment, must contain not only the grounds for revocation of judgment, but also the grounds of defence to the action. 483. Likewise, where there is no other useful recourse against a judgment, the court which rendered it may revoke it at the request of one of the parties, in the following cases:

(1) When the procedure prescribed has not been followed and the resulting nullity has not been covered;

(2) When the judgment has decided beyond the conclusions, or when it has failed to rule on one of the essential grounds of the suit;

(3) When, in the case of a minor or person of full age under tutorship or curatorship, no valid defence has been produced;

(4) When judgment has been rendered upon an unauthorized consent or tender subsequently disavowed;

(5) When judgment has been rendered upon documents whose falsity has only been discovered afterwards, or following fraud of the adverse party;

(6) When, since the judgment, decisive documents have been discovered whose production had been prevented by a circumstance of irresistible force or because of the act of the adverse party;

(7) When, since the judgment, new evidence has been discovered and it appears that: (

a) if it had been brought forward in time, the decision would probably have been different; (

b) it was known neither to the party nor to his attorney or agent; and (

c) it could not, with all reasonable diligence, have been discovered in time. [ 25 ] In the Court’s opinion, the allegations in support of the Second Motion in Revocation are groundless, frivolous, scurrilous and without foundation in fact or in law for the following reasons:

a) On the basis of the Court Record, the allegations are false. Peter Michalakopoulos was given every opportunity to have his sister testify. He decided – himself – not to have her testify. He decided to declare his proof closed without calling her as a witness, despite her presence that day in Court. No one, and certainly not Judge Keable, tricked him in that regard. Peter Michalakopoulos made that decision for his own reasons. Peter Michalakopoulos, before he was disbarred from the Barreau du Québec, was an experienced litigator. He was fully able to make that decision.

That decision does not appear to be an oversight since after making it and declaring it to the Court, he said that he only wanted to make representations as to argument. Thereafter, Peter Michalakopoulos proceeded to present his arguments ( plaidoirie ) and never raised before completion of his closing argument that he desired to have his sister testify.

Furthermore, even after the completion of closing arguments and the First Motion in Revocation being taken under advisement, had he desired to have her testimony heard, Peter Michalakopoulos could have undertaken steps to do so before receiving Judge Keable’s judgment on May 7, 2015. He never did so.

b) If Peter Michalakopoulos “forgot” to call his sister to support his testimony, then it was his mistake. It was not a mistake of the judge to not call her to testify or to ask Peter Michalakopoulos to call her to testify. Peter Michalakopoulos had the burden to counter the manifest proof appearing in the exhibits and documents contained in the Court file. If Peter Michalakopoulos omitted to do and was negligent in that regard, he only has himself to blame and should assume responsibility for that mistake.

c) Judge Keable based his judgment on the fact that he gave no credence to the version of facts regarding the date of knowledge by Peter Michalakopoulos of the Lavigne Judgment. Judge Keable evaluated the testimony, credibility and version of events as presented by Peter Michalakopoulos as well as the opposing version of the events presented by the attorney of the Barreau du Québec with respect to the date of knowledge by Peter Michalakopoulos of the Lavigne Judgment.

In the opinion of Judge Keable, Peter Michalakopoulos was neither credible nor believable with respect to his version of events and his attested date of knowledge. In the words of Judge Keable, he was not “digne de foi”. The judge concluded as a question of fact that Peter Michalakopoulos knew about the existence of the Lavigne Judgment well before 15 days from the filing in Court of the First Motion in Revocation on December 30, 2014. It is important to note that the 15 day delay period applied solely with respect to the knowledge of Peter Michalakopoulos, not to that of his sister.

At most, the sister’s testimony could only support the testimony of Peter Michalakopoulos as to when he became aware of the Lavigne Judgment. Judge Keable did not believe Peter Michalakopoulos’ version of events as to the time of his knowledge of such judgment.

d) At that point, Judge Keable was sitting on the merits of the First Motion in Revocation. The jurisprudential rule regarding reception (which had occurred on February 13, 2015 before Judge Keable) that the facts alleged are taken as being true (“tenus pour avérés”) no longer applied. Therefore, Judge Keable had every right to consider and weigh the evidence with respect to the admissibility of the First Motion to Revocate, including the respect or failure to respect the 15 day delay period, as well as the grounds of defence to the Barreau Collection Motion requesting the homologation of disciplinary decisions and for amounts owed in that regard.

e) The grounds alleged in the Second Motion in Revocation regarding the Keable Judgment do not fall within the provisions of

Article 482 C.C.P. That

article only allows a party condemned to judgment either “by default to appear or to plead”. With respect to the Keable Judgment, Peter Michalakopoulos was present, and he both appeared and presented his defence to the Barreau Collection Motion. If Peter Michalakopoulos takes issue with the Keable Judgment as being somehow unfounded in fact or in law, the proper recourse was a motion for permission to appeal and not a motion in revocation.

For the reasons already stated, the undersigned is of the view that a motion for permission to appeal would have been manifestly unfounded in fact and in law as to the merits but it would have been the proper procedural vehicle to contest on the merits the Keable Judgment, as opposed to a motion in revocation.

f) During the hearing before the undersigned, Peter Michalakopoulos was unable to refer the Court to any specific paragraph or subparagraph of

Article 483 C.C.P. on which he based his Second Motion in Revocation. Instead, he referred to the entire texts of Articles 482 and 483 C.C.P. Upon the Court’s review of

Article 483 C.C.P., none of the paragraphs apply to both the real and alleged facts regarding the Second Motion in Revocation. The opening paragraph of

Article 483 C.C.P. stipulates, as a condition of admissibility for the subsequent subparagraphs, that there exists “no other useful recourse against the judgment”. As stated, if Peter Michalakopoulos was not satisfied with the Keable Judgment, the proper recourse was a motion for permission to appeal.

Accordingly, the Second Motion in Revocation with respect to the Keable Judgment is not admissible under paragraph 483 C.C.P. either. [ 26 ] In light of the above, given that the Second Motion in Revocation is not admissible under either Articles 482 or 483 C.C.P. and based upon the proof as appears from the Court Record, including the minutes, recordings of proceedings, procedures and exhibits, Peter Michalakopoulos’ Second Motion in Revocation with respect to the Keable Judgment is manifestly unfounded in fact and in law.

Furthermore, the Court concludes that, in light of the above, the said motion constitutes an abuse of procedure. FOR THESE REASONS, THE COURT: DISMISSES Panagiotis (Peter) Michalakopoulos’ Motion in Revocation dated May 26, 2015; WITH COSTS. __________________________________ Jeffrey Edwards, J.C.Q. Me Marc Bishai

Barreau du Québec Attorneys for Plaintiff Mr. Panagiotis (Peter) Michalakopoulos Representing himself Date of hearing: July 3, 2015