2013 QCCA 1225, 2013 QCCA 1225

Mazhero c. CBC Radio-Canada 2013 QCCA 1225 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023510-134 (500-17-071464-120) DATE: July 15, 2013 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. CLÉMENT GASCON, J.A. FRANCIS MAZHERO APPELLANT – plaintiff v. CBC RADIO-CANADA BELL CANADA MICROSOFT CORPORATION NEW ZIMBABWE MEDIA LTD.

RESPONDENTS – defendants JUDGMENT [ 1 ] Francis Mazhero has inscribed in appeal a judgment of the Superior Court, District of Montreal (the Honourable Marc de Wever), rendered February 22, 2013, in which the Court dismissed various motions brought by Mr. Mazhero, including his motion to institute proceedings against CBC Radio-Canada, Microsoft Corporation, Bell Canada and New Zimbabwe Media Ltd. [ 2 ] In connection with this appeal, Mr. Mazhero has filed four motions for directions (numbered by the Court as 4.3, 4.4, 4.5 and 4.6) pursuant to

article 508.5 C.C.P . The Chief Justice has referred the motions to the Court. [ 3 ] Bell Canada has filed a motion to dismiss the appeal based on articles 501, par. 1 (4.1) and

(5) C.C.P. Respondents CBC Radio-Canada and Microsoft Corporation have together filed a further motion to dismiss the appeal based on the same provisions of the Code. Both motions ask that Mr. Mazhero's appeal be declared improper. [ 4 ] New Zimbabwe Media Ltd. has not filed an appearance in the file. [ 5 ] We propose to discuss the four motions for directions as a group before turning to the two motions to dismiss the appeal. I Motions for Directions [ 6 ] In motion 4.3, Mr.

Mazhero seeks various declarations and orders against respondent New Zimbabwe Media Ltd. by reason of the fact that this respondent has failed to file an appearance on appeal as of this date. In particular, he asks that New Zimbabwe Media Ltd. be declared foreclosed from filing a factum and from appearing to make representations at the hearing in appeal. It appears that Mr.

Mazhero considers New Zimbabwe Media Ltd. to be in default and that, as a consequence, he has a right that judgment be rendered on appeal against it. [ 7 ] While it is true that New Zimbabwe Media Ltd. has not filed an appearance, it should be noted that the requirement that a party appear within the time limits imposed by the Code of Civil Procedure is not peremptory. [1] The fact that an appearance has not been filed at this stage of the proceedings does not, in law, produce the effects alleged by Mr. Mazhero. [ 8 ] In motions 4.4, 4.5 and 4.6, Mr.

Mazhero alleges in particular that respondents CBC Radio-Canada, Microsoft Corporation and Bell Canada have failed to appear in the appeal in a timely fashion and, as a result, cannot file motions to have the appeal dismissed pursuant to

article 501 C.C.P . [ 9 ] With respect, Mr. Mazhero is mistaken on this point. These respondents filed appearances within 10 days from April 16, 2012, the date on which the registry in the Court opened a file in appeal according to a letter sent by the Chief Justice to all parties. [ 10 ] We are of the view that, in the circumstances, the filing of the appearances was adequate.

[ 11 ] Specifically, respondents CBC Radio-Canada, Microsoft Corporation and Bell Canada are not precluded from presenting motions to dismiss Mr. Mazhero's appeal by reason of the timing of their appearances in the file. [ 12 ] In sum, none of the conclusions sought in motions 4.3, 4.4, 4.5 and 4.6 is justified. [ 13 ] The motion was not contested by New Zimbabwe Media Ltd. There will be no order as to costs in favour of this respondent. [ 14 ] CBC Radio-Canada, Microsoft Corporation and Bell Canada are entitled to costs pursuant to the rule stated in

article 477 C.C.P. II Motions to Dismiss [ 15 ] Briefly stated, Mr. Mazhero filed suit before the Superior Court, alleging that the respondents had defamed him when they published or republished articles on the internet entitled "Federal Court bans man for frivolous law suits". Mr. Mazhero claimed that the respondents' conduct had caused him $12,000,000 in damages for which he said they were solidarily liable. The amount claimed is stated as $17,900,000 in Mr. Mazhero's inscription in appeal. [ 16 ] The Superior Court dismissed Mr. Mazhero's motion to institute proceedings on the merits.

The judge observed that the internet articles summarized precisely and correctly the reasons for judgment rendered by a judge of the Federal Court of Canada. In paragraphs [57] to [70], the judge explained his view, substantiated by the applicable law, that news organizations are entitled to report on judgments rendered by the courts which are open to public scrutiny and public criticism. The judge found that none of the respondents had committed a civil fault.

He decided further that this same conclusion applied to New Zimbabwe Media Ltd. notwithstanding the fact that it did not file an appearance in the Superior Court. *** [ 17 ] In his inscription in appeal, Mr. Mazhero argues that his appeal should be allowed on both procedural and substantive grounds. At the hearing before us, he presented copies of his factum on appeal which, he said, he had served on the parties and which he planned to file in the Court's registry. His argument before us drew extensively from his factum.

As a result, the official filing of his factum in the Court record was noted at the hearing. [ 18 ] In his factum, Mr. Mazhero restates the questions in issue as follows: "The sole question in issue on this appeal is whether Justice De Wever of the Superior Court of Montréal perpetrated a fraud on the process of civil justice, and perverted or abused his office and the process of civil justice". *** [ 19 ] As a matter of procedure, Mr. Mazhero argued that irregular appearances in the record on appeal by CBC Radio-Canada, Microsoft Corporation and Bell Canada precluded them from filing motions to dismiss.

For reasons given in paragraph [9] above, this argument is dismissed. [ 20 ] He argued further that because New Zimbabwe Media Ltd. had not appeared, he considered it to be in default. He invited the Court to take note that New Zimbabwe had failed to appear and given no sign of wanting to participate in the proceedings in appeal. He asked that the Court proceed against that party in the conclusions to his inscription and in his factum. [ 21 ] We agree with Mr.

Mazhero that in the circumstances the Court can dispose of the appeal in respect of New Zimbabwe Media Ltd. [ 22 ] The conclusions of both motions to dismiss ask that the appeal as a whole be dismissed by reason of it having no reasonable chance of success and its improper character. Those conclusions are not limited to the petitioning parties. [ 23 ] Similarly, Mr. Mazhero asks for conclusions against New Zimbabwe Media Ltd. in his inscription in appeal.

That party has chosen not to appear and, in the circumstances, that is no bar to deciding the proceedings presently before the Court. *** [ 24 ] As to the substantive arguments raised by Mr. Mazhero in his inscription in appeal and his factum, no valid grounds are alleged that would allow the trial judgment to be set aside. [ 25 ] The finding by the trial judge that the respondents committed no civil fault is a finding of fact. Absent the demonstration of a palpable and overriding error, this finding is deserving of deference on appeal. [ 26 ] Mr.

Mazhero raised no such error, nor does he point to an error of law susceptible of having the judgment set aside. [ 27 ] Mr. Mazhero's factum and inscription contain harshly-worded criticism of the trial judge and certain other judges who, says the appellant, have conspired with the lawyers on the other side to perpetrate "a fraud on the process of civil justice" at the expense of the appellant's constitutional rights. In the Court's view, however, the appellant raises no plausible basis in fact upon which these accusations might properly stand. [ 28 ] His various complaints include (

i) that there was no trial in this matter; (ii) that the trial judge used self-serving evidence; (iii) that the trial judge is a "crook"; (iv) that the judge participated in a scheme devised by another judge in the Superior Court to defeat his claim; and (

v) that the judge acted as he did in order to avail himself of judicial immunity. [ 29 ] None of these arguments has any discernable basis in fact. Indeed, nothing in the inscription or in the factum can be construed as an allegation, in fact or in law, of grounds for setting aside the judgment of February 22, 2013.

[ 30 ] Instead, Mr. Mazhero has chosen to resort to inflammatory language that not only fails to make out his case but lends credit to the argument that his appeal is an improper one. [ 31 ] In sum, the appeal against Bell Canada, CBC Radio-Canada, Microsoft Corporation and New Zimbabwe Ltd. has no reasonable chance of success and should be dismissed pursuant to

article 501, paragraph 1 (4.1) C.C.P . [ 32 ] Given this conclusion and notwithstanding our comments in paragraphs [27] and [30] above concerning the regrettable language in Mr.

Mazhero's proceedings, we find it unnecessary to decide whether the appeal is improper or dilatory in nature. [ 33 ] FOR THESE REASONS , the Court: [ 34 ] DISMISSES the motions for directions numbered 4.3, 4.4, 4.5 and 4.6, with costs in favour of CBC Radio-Canada, Microsoft Corporation and Bell Canada. [ 35 ] GRANTS the motion to dismiss filed by Bell Canada, with costs; [ 36 ] GRANTS the motion to dismiss of CBC Radio-Canada and Microsoft Corporation, with costs; [ 37 ] DISMISSES the appeal, with costs in favour of Bell Canada, CBC Radio-Canada and Microsoft Corporation. NICHOLAS KASIRER, J.A.

MARIE ST-PIERRE, J.A. CLÉMENT GASCON, J.A. Mr. Francis Mazhero In person Mtre Barry Landy Spiegel Sohmer inc. For the respondents CBC Radio-Canada and Microsoft Corporation Mtre Stéphane Richer Borden Ladner Gervais For the respondent Bell Canada Date of hearing: July 8, 2013