2019 QCCA 1662, 2019 QCCA 1662

Plomp c. Joshi 2019 QCCA 1662 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025327-156 (500-17-077343-138) DATE: OCTOBER 2, 2019 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. STÉPHANE SANSFAÇON, J.A. MICHEL BEAUPRÉ, J.A. ELIZABETH PLOMP APPELLANT – Plaintiff v. ARVIND JOSHI JANE McCUSKER ELISABETH DAMPOLIAS SONIA DESCHÊNES CARLO DE STEFANO DENISE BEAUREGARD ZAHOOR CHUGHTAI RESPONDENTS – Defendants and CENTRE HOSPITALIER DE ST.

MARY IMPLEADED PARTY – Impleaded Party JUDGMENT [ 1 ] The appellant Elizabeth Plomp appeals against a judgment rendered on May 4, 2015, by the Superior Court, District of Montreal (the Honourable Mr. Justice Paul Mayer), which granted the respondents' amended application, (1) declared that she is a quarrelsome litigant pursuant to

Article 54.5 of the former Code of Civil Procedure (“ C.C.P .”) and

Article 84 of the Rules of Practice of the Superior Court and (2) prohibited her from instituting or filing any action, application, complaint or proceeding of any nature whatsoever, before the Superior Court or the Court of Québec or any tribunal or administrative body that falls within the superintending power of the Superior Court without having first obtained the prior written authorization of the Chief Justice of the Superior Court or the Court of Québec, the President of the Tribunal or the Director General of the administrative body, or the syndic of the Barreau du Québec , as the case may be. [1] The proceedings [ 2 ] As appears from the facts as described in the decisions and judgments to which reference will be made below, between 2003 and 2008, the appellant held a grade R-4 part-time, on-call position (" occasionnel à durée déterminée "), with no guarantee of the number of work hours. [ 3 ] In March-April 2008, the appellant learned that her position would be posted.

She did not apply for her own position, but rather applied for a permanent full-time position (R-1). She was successful and started a 20-day trial period in June 2008. In the meantime, the position she held was filled. At the end of 20 days, she learned that she had failed the probationary period, as her work was not deemed satisfactory. [ 4 ] It is in this context that the appellant filed a complaint with the Commission des normes du travail .

On January 29, 2010, the Board found that she had not been fired and dismissed her complaint. [2] The appellant sought a review of this decision and the Commission des relations du travail dismissed her claim. [3] [ 5 ] The appellant then filed an application for judicial review of that decision with the Superior Court. Her proceeding comprised 273 paragraphs and covered more than 60 pages. In the context of that recourse, she applied for disclosure of evidence by which she required dozens of additional documents and explanations from representatives of the hospital and its lawyers.

In various ways, she also asked these lawyers to explain the position taken by the hospital before the Commission des relations du travail . This request for disclosure was dismissed by a judge of the Superior Court. [4] On May 28, 2012, the appellant’s application for judicial review was

dismissed by another judge on the ground that the decisions of the Labor Relations Board were reasonable. [5] [ 6 ] The appellant sought leave to appeal from that judgment. On July 24, 2012, a judge of this Court dismissed her application, ruling that the appeal would be doomed to failure. [6] [ 7 ] The appellant then filed an application for leave to appeal to the Supreme Court of Canada, which was dismissed on March 7, 2013. [7] [ 8 ] That last judgment would normally have ended the dispute.

This was not the case. [ 9 ] As appears from the allegations in the appellant’s Superior Court claim, alongside the above-mentioned proceedings in connection with the termination of her employment at the hospital, the appellant filed private complaints before the Barreau du Québec’s disciplinary council against Mtres Magali Cournoyer-Proulx and Melanie Sauriol, the lawyers who represented the hospital. In the context of these complaints she served subpoenas on representatives of the hospital asking for several documents that related to her former employment.

Mtre Cournoyer-Proulx filed a motion to dismiss the complaint, which was granted on January 3, 2014, on the ground that the charges were frivolous and abusive. [8] The appellant appealed that decision.

The Professions Tribunal dismissed the appeal. [9] In another decision dated December 12, 2014, the President of the Tribunal characterized the appellant’s recourse directed against Mtre Sauriol as " non seulement non fondée et frivole, mais carrément abusive ". [10] The appellant then sought to appeal this decision before the Professions Tribunal, which declined jurisdiction. [11] [ 10 ] On August 21, 2013, the appellant served an application on Mtre Cournoyer-Proulx filed with the Barreau du Québec’s disciplinary council for the issuance of an order of provisional disbarment ( radiation provisoire ).

The President of the council dismissed that application. [ 11 ] On November 5, 2013, the appellant filed a new private complaint with the Barreau's disciplinary council against Mtre Cournoyer-Proulx. On November 5, 2014, the Council dismissed that complaint. [12] [ 12 ] On November 11, 2013, the appellant filed another application for the issuance of an order of provisional disbarment of Mtre. Cournoyer-Proulx.

On November 29, 2013 the Barreau du Québec’s disciplinary council dismissed the application [13] and explained in its decision of February 3, 2014, that the appellant’s application was manifestly unfounded (“ manifestement mal fondée ”) and doomed to failure (“ vouée à l’échec ”). [ 13 ] During that period, the appellant filed new proceedings (May 23, 2013) before the Superior Court against the respondents​ – a 45-page application instituting proceedings for damages, once again relating to her work relationship with the hospital, in which she stated its purpose: I am filing this case to charge St.

Mary's Hospital employees with fraud and abuse of rights resulting from their refusal to pay me the benefits owed after my lay-off from my position there as Administrative Assistant in Housekeeping on July 30, 2008. I am also claiming damages for the defamation, damages reputation, and perjury committed by these employees to disguise and justify an illegal and abusive dismissal.

The false claims made by hospital employees and their denial of benefits owed has [sic] occurred on a continuous basis since my dismissal, as hospital staff and its legal counsel have repeated their lies to several courts in order to continue denying me the benefits owed.

I have spent the last three year [sic] requesting and being denied a judicial review of the decision made by the Commission des relations de travail on January 29, 2010 which was based on the lies that hospital employees and their counsel repeatedly told in court. [ 14 ] In its conclusions, she asked for the payment of $200,488.74 as well as the following: AWARDS the monies [sic] and benefits owed as per existing contracts; AWARDS the legal and other expenses incurred trying to obtain the monies [sic] and benefits owed, including compensation for preparation and presentation of each case; AWARDS the punitive damages requested from St.

Mary's Hospital employees for malicious dismissal, concealment and denial of benefits owed, and intentional fabrication of false accusations to damage my reputation and avoid respecting contractual obligations; REINSTATES AND RESTORES the employee status and the seniority of Elizabeth Plomp. [ 15 ] In those proceedings, the defendants were the present respondents, comprised of the hospital and some of its staff and doctors who had testified at the hearing of her initial complaint to the Commission des relations du travail . [ 16 ] On July 12, 2013, the respondents sought the dismissal of this application by way of a motion supported by the affidavit of Mtre Magali Cournoyer-Proulx. [ 17 ] The appellant contested this motion to dismiss with her own motion to dismiss on the ground that the respondents' motion to dismiss contained false information that constituted fraud and perjury.

In the context of her own motion to dismiss, the appellant subpoenaed Mtres Magali Cournoyer-Proulx and Mélanie Sauriol to be cross-examined by her and requested various documents from them. This was challenged with a motion from the respondents to quash said subpoena. [14] The respondents also served the appellant with a motion seeking an order that she be declared a quarrelsome litigant pursuant to

Article 54.5 of the former C.C.P. and

Article 84 of the Rules of Practice of the Superior Court , which motion was supported by an affidavit of Mtre Cournoyer-Proulx affirming that all the facts indicated in the motion were true. [ 18 ] The motions were to be heard on November 25, 2013. That day, the appellant requested a postponement of the hearing on the motion regarding her quarrelsome conduct. The respondents did not oppose the request to postpone, but requested a safeguard order regarding the appellant’s quarrelsome conduct during the proceedings. The judge granted the appellant’s request to postpone the hearing

of the application to have the appellant declared a quarrelsome litigant.

The next day, the judge granted the safeguard order requested by the respondents, granted the application to quash the subpoena, dismissed the appellant's motion to dismiss and granted the motion to dismiss the appellant’s application for damages. [15] That judgment has not been appealed. [ 19 ] On January 21, 2014, the Chief Justice of the Superior Court assigned the special management of the case to Justice Mayer. [16] [ 20 ] The hearing of the motion that the appellant be declared a quarrelsome litigant was then scheduled for June 20, 2014.

On April 8, 2014, the appellant submitted a request to postpone the hearing, which Justice Mayer dismissed. [17] On the same day, the appellant notified respondents by hand of an application for revocation of the judgment rendered by the Superior Court on November 26, 2013. [ 21 ] On May 29, 2014, the appellant sent the Barreau du Québec’s Disciplinary Council two applications seeking a declaration disqualifying Mtres Cournoyer-Proulx and Sauriol, a copy of which she sent to Justice Mayer the following day.

On the same day, the appellant filed motions to disqualify Mtre Cournoyer-Proulx and Mtre Sauriol from acting in the Superior Court file. [ 22 ] On June 2, 2014, Justice Mayer wrote to the appellant that the motions for disqualification of Mtres Cournoyer-Proulx and Sauriol would be heard first, followed by the application to have the appellant declared a quarrelsome litigant, and, at a later date, the application for the revocation of the judgment rendered by the Superior Court on November 26, 2013.

That same day, the appellant asked the judge for authorization to summon the respondents’ lawyers to be deposed in support of her motion to have them disqualified. Justice Mayer denied the request, to which the appellant replied that "since these lawyers presented an affidavit claiming that all the evidence presented to the Superior Court on November 25, 2013, is true,

Article 93 of the Code of Civil Procedures [sic] gives me the right to summon them to examine the facts claimed to be true". On June 5, 2014, the judge wrote to the appellant that he would not change his decision. [ 23 ] On June 16, 2014, the appellant filed a motion for the recusation of Justice Mayer.

On June 20, 2014 the judge, after having heard the parties, dismissed that motion. [18] The appellant then announced her intention to appeal the ruling, which resulted in the postponement of the motions to disqualify the two lawyers as well as the application seeking a declaration that the appellant is a quarrelsome litigant, and the motion for the revocation of the November 26, 2013 judgment. [ 24 ] The appellant then filed a complaint to the Canadian Judicial Council against Justice Mayer alleging, among other reasons, " son abus de pouvoir, son excès de juridiction, son défaut de respecter la loi et son code de déontologie […] un grand manque d’impartialité ".

On April 25, 2015, the Council replied that appellant’s complaint was being dismissed and that the file would be closed. [19] [ 25 ] The appellant then submitted an application for leave to appeal beyond the delays of Justice Mayer’s June 20, 2014 judgment in which he had refused to recuse himself. On January 26, 2015, this Court dismissed the application for leave to appeal after the expiry of delays [20] since the appeal had no chance of success.

The appellant filed a motion for revocation of that judgment, which the Court also dismissed on April 30, 2015. [21] [ 26 ] Finally, the motion to have Mtres Cournoyer-Proulx and Sauriol disqualified and the motion to have the appellant declared a quarrelsome litigant were heard on April 28, 2015. [22] On May 4, 2015, Justice Mayer dismissed the former and granted the latter. The present appeal concerns that latter judgment. The appeal [ 27 ] The appellant raises the following grounds of appeal : 1. Was the appellant denied a fair trial? 2.

Did the motion judge exceed his powers as case manager by denying a hearing of the appellant’s “ Demande en rétractation du jugement ” rendered by Justice Beaugé on November 26, 2013? 3. Did the motion judge err in concluding that the appellant's conduct was abusive? 4. Was the appellant a victim of Quebec's self-regulation of lawyers? 1.

Was the appellant denied a fair trial? [ 28 ] The appellant relies on a number of elements to argue that she did not have a fair trial. [ 29 ] She first alleges that the judge erred in refusing to recognize that Mtres Cournoyer-Proulx and Sauriol should have ceased representing the respondents and that her complaints and applications for provisional disbarment against Mtres Cournoyer-Proulx and Sauriol before the Barreau du Québec’s disciplinary council were sufficient to have them disqualified from continuing to represent the respondents.

That error in law, as well as the fact that they continued to represent the respondents, tarnished the integrity of the proceedings. The appellant also blames the lawyers for having given her insufficient notice of the date on which they would present their motion to have her declared a quarrelsome litigant, which was, according to her, "extremely abusive" as she was not represented by counsel.

The appellant also argues that the Superior Court should not have granted the safeguard order declaring her a quarrelsome litigant on November 26, 2013, since the criterion of urgency was not satisfied and this has allowed the same lawyers to violate their ethical obligations with impunity. [ 30 ] Accordingly, the appellant argues, Justice Mayer, by failing to intervene and by allowing the lawyers to present their motion to have her declared a quarrelsome litigant, affected the fairness of the trial.

[ 31 ] The appellant is wrong. [ 32 ] First, she could not invoke her own private complaints against the lawyers in order to then have them disqualified. All of her complaints were deemed unfounded or abusive, and all were dismissed at the first opportunity.

It would have been too easy for the appellant to simply file a baseless complaint against the lawyers and then argue that they should be ousted from the file. [ 33 ] As for the short delay between the date of notification of the motion to have the appellant declared a quarrelsome litigant and the date it was presented to the judge, not only were all legal delays respected but, the appellant asked the presiding judge to postpone the hearing of the motion and the respondents did not oppose this request.

The hearing was postponed until the following April 28, 2015. [ 34 ] Finally, as to the judgment on the safeguard order declaring the appellant a quarrelsome litigant, no appeal was lodged against it. Furthermore, the appellant has not shown that the lawyers acted in breach of their ethical obligations. [ 35 ] The appellant adds that the fact that the lawyers were allowed to continue to represent the respondents allowed them to use the decisions of the Barreau du Québec’s Disciplinary Council to influence the judges of the Superior Court.

She argues that this was an exercise in manipulation of the courts in violation of the law, which compromised the integrity of the judgments, including the one under appeal. [ 36 ] This argument by the appellant is a good example of one of the indications that its author is a quarrelsome litigant, as recognized by the case law: 5º Les arguments de droit mis de l'avant se signalent à la fois par leur inventivité et leur incongruité.

Ils ont une forme juridique certes, mais à la limite du rationnel; [23] [ 37 ] Suffice it to say that any lawyer who would have been substituted for the respondents' lawyers would certainly have had no hesitation in invoking these same decisions of the Barreau du Québec’s Disciplinary Council in order to demonstrate the frivolity of the appellant’s proceedings.

This argument is without merit. [ 38 ] The appellant contends that Justice Mayer erred in refusing to allow her to examine Mtre Cournoyer-Proulx on her sworn statement submitted in support of the motion to have her declared a quarrelsome litigant. [ 39 ] In principle, and although an affidavit is not required by law in support of an application to have a litigant declared quarrelsome (art. 106, para. 2 C.C.P. ), a lawyer who signs a sworn statement in support of a proceeding becomes compellable to be examined pursuant to

Article 93 of the former C.C.P. (now

Article 105, para. 3 C.C.P. ) to establish the seriousness of the affidavit. [24] The judge refused to allow the examination. [ 40 ] Here, the sworn statement refers essentially to the pleadings, decisions and judgments which were already part of the court record as constituted by the appellant, or were alleged or referred to by the appellant herself in her pleadings or her e-mails to the judge. The affidavit could obviously not have the effect of supporting the legal arguments set out in the motion, such as, for example, that the appellant was acting as a quarrelsome litigant and that she should be so declared.

Thus, all the necessary elements for the analysis of the criteria supporting a conclusion that the appellant is quarrelsome were already present in the record without reference to the affidavit. [ 41 ] While some of the appellant's actions, complaints and proceedings, in addition to those mentioned above, did not appear from the record and were therefore put into evidence through the lawyer’s affidavit, they only complemented the facts already present in the record which were sufficient, in and of themselves, to convince the judge that the appellant’s actions supported the declaration sought by the respondents, and there is nothing to suggest that their removal from the record would have led the judge to a conclusion other than the one at which he arrived.

The affidavit could have been withdrawn from the record and it would not have affected the validity of the motion. [25] Thus, in the circumstances of this case, the judge's refusal to allow the appellant to examine the lawyer did not have any effect on the fairness of the trial. [ 42 ] The respondents argued that the quarrelsome actions of the appellant could, in and of themselves, have justified the judge’s denial of her request to depose the respondents’ lawyer. Given the foregoing conclusion, it is not necessary to deal with this argument. 2.

Did the Motion Judge exceed his powers as case manager by denying a hearing of the appellant's "Demande en rétractation du jugement" rendered by the Superior Court on November 26, 2013? [ 43 ] This ground of appeal must also fail. [ 44 ] First, the appeal on this ground was not validly filed as leave was not requested. [26] Moreover, it is extremely rare for the Court to intervene in these matters, the standard of review being the demonstration of a palpable error or denial of justice or other exceptional circumstance, [27] all of which are absent here. [ 45 ] Even if the appeal had been properly brought, the appellant has not convinced us that the intervention of the Court is required.

The judge’s decision to first hear the motion to declare the appellant quarrelsome, which had been notified well before the motion in revocation of the judgment of November 26, 2013, was certainly within his management powers [28] and the appellant has not shown any reviewable error. 3. Did the Motion Judge err in concluding that the appellant's conduct was abusive? [ 46 ] In matters involving a declaration that a litigant is quarrelsome, the Court has very seldom reversed a judgment rendered by a

lower court. [29] The judgment which declares a litigant quarrelsome " relève avant tout de l’appréciation par le juge " and, barring a palpable and overriding error, the Court owes deference to the decision of the motion judge. [30] [ 47 ] In this case, the appellant did not demonstrate any such palpable and overriding error.

Even if we speculate that the judge erred in refusing to allow counsel for the respondents to be examined on her sworn statement, and that this resulted in some of the facts (in addition to those mentioned above) having been mistakenly introduced into the record in support of the motion to have the appellant declared a quarrelsome litigant, such error is not overriding, because the record already contained sufficient evidence to conclude as the judge did. [ 48 ] Nevertheless, it is necessary to intervene in order to limit the scope of the judge’s declaration regarding the appellant’s quarrelsome conduct, since it " dépasse[e] le cadre immédiat du litige avec lequel le [tribunal de première instance] a été [saisi] sans une démonstration de la nécessité ou la légalité d'une telle ordonnance ". [31] There is no evidence that the appellant is attacking anyone other than those who had a direct or indirect link to her employment.

The conclusions of the judgment will therefore be amended to limit their scope. 4. Was the appellant a victim of Quebec's self-regulation of lawyers? [ 49 ] This ground of appeal being both irrelevant to the appeal and frivolous, there is no need to rule on it. FOR THESE REASONS, THE COURT : [ 50 ] ALLOWS the appeal in part , for the sole purpose of substituting paragraphs 56 to 59 of the judgment under appeal by the following paragraphs: [56] PROHIBITS Elizabeth Plomp from, directly or indirectly, instituting or filing an action, an application or a proceeding of any nature whatsoever against St.

Mary’s Hospital, its employees or lawyers before the Superior Court of Québec or the Court of Québec, without having first obtained the prior written authorization from the Chief Justice of the Superior Court or the Court of Québec, as the case may be; [57] PROHIBITS Elizabeth Plomp from, directly or indirectly, instituting or filing any action, motion, complaint or other proceeding of any nature whatsoever against St.

Mary’s Hospital, its employees or lawyers before any tribunal or administrative organism that falls within the superintending power of the Superior Court of Québec, without having first obtained the prior written authorization from the President of the Tribunal or the Director General of the administrative body, as the case may be; [58] PROHIBITS Elizabeth Plomp from, directly or indirectly, instituting or filing any disciplinary complaints against lawyers that represent or represented St.

Mary’s Hospital or its employees, without having first obtained the prior written authorization from the syndic of the Barreau du Québec ; [59] INSTRUCTS all officers of clerk’s offices to refuse the filing of all judicial demands, actions, motions, complaints or any other proceedings of any nature whatsoever by Elizabeth Plomp against St. Mary’s Hospital, its employees or lawyers, unless such complaints or procedures have received the prior written authorization mentioned above; [ 51 ] With legal costs. MARK SCHRAGER, J.A. STÉPHANE SANSFAÇON, J.A. MICHEL BEAUPRÉ, J.A.

Elizabeth Plomp Unrepresented Mtre Véronique Iezzoni Bélanger Longtin For Respondents and Impleaded party Date of hearing: June 20, 2019