2016 QCCA 344, 2016 QCCA 344

Bardis c. Haché 2016 QCCA 344 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025789-157 (500-17-074706-121) MINUTES OF THE HEARING DATE: February 23, 2016 CORAM: THE HONOURABLE NICHOLAS KASIRER , J.A. robert m. mainville , J.A. étienne parent , J.A. APPELLANT GEORGE BARDIS IN PERSON RESPONDENTS ATTORNEY NORMAND HACHÉ JEAN-FRANÇOIS DOLBEC Mtre CAROLINE TEMBLAY (Gilbert Simard Tremblay, avocats s.e.n.c.r.l.) On appeal from a judgment rendered on November 13, 2015 by the Honourable Justice Robert Castiglio of the Superior Court, District of Montreal

DESCRIPTION : Motion of respondents to dismiss the appeal Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing held on February 22, 2016. Mr. Bardis and Mtre Tremblay were excused from appearing in Court this morning. 9:30 By the Court: judgment – see page 3.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] Normand Haché and Jean-François Dolbec have filed a motion to dismiss the appeal brought by George Bardis against a judgment of the Superior Court, District of Montreal, (the Honourable Robert Castiglio presiding), rendered on November 13, 2015, alleging that the appeal has no reasonable prospect of success, and that it is both improper and dilatory. The trial judge dismissed Mr.

Bardis’ action in damages for professional negligence against the petitioners, his former lawyers, in respect of their conduct of an unsuccessful action and appeal he had taken against Concordia University and two of its professors. [ 2 ] After a five-day trial, Castiglio J. held that even if the defendants’ conduct amounted to negligence, Mr. Bardis had failed to show that, but for that conduct, the judgment in the principal action would have been different. The judge thus explained that he was of the view that Mr. Bardis had failed to prove that the petitioners had caused the damage claimed.

The judge also held that even if he had concluded that the petitioners were responsible for the fact that the principal action and appeal against Concordia University and its professors had been dismissed, the damages that Mr. Bardis claimed were not proven. *** [ 3 ] Mr. Bardis is self-represented. In his inscription in appeal, Mr. Bardis sets forth a series of errors that the judge in the principal action against Concordia University is said to have committed.

He contends that these errors are either attributable to the petitioners or that Me Haché, when he prepared the appeal of the principal action, failed to bring them to the attention of this Court which resulted in the appeal being dismissed. In support of his position, Mr Bardis filed a series of exhibits and excerpts from the file in first instance in the registry of this Court. *** [ 4 ] The appellant does not argue that Castiglio J. misstated the law applicable to an action in professional negligence brought against a lawyer with a mandate ad litem .

The judge seized of such a matter must undertake what is sometimes called a “trial of the trial” or, in this case, the trial of the manner in which the lawyers conducted the trial and the appeal. Castiglio J. undertook this exercise in detail. He was by no means uncritical of the conduct of the petitioners.

He was well aware of the appellant’s profound dissatisfaction with the outcome in the principal action. [ 5 ] While the inscription in appeal alludes to errors in law in the court below, in reality Mr Bardis alleges a series of errors of fact that Castiglio J. is said to have committed in the weighing of the evidence as to what transpired in the principal action and its appeal. In

order to succeed in the present appeal, he would have to show a palpable and overriding error in the judgment of Castiglio J. That said, it bears recalling that is not the role of this Court to retry the matter that took five days before Castiglio J., nor is it an occasion to repeat the appeal of the principal action against Concordia and its professors. [ 6 ] Castiglio J. had the benefit of reviewing the evidence in the principal action and he concluded that the outcome would not have been different but for the various errors alleged against the petitioners. Importantly, he decided that, in any event, Mr.

Bardis had failed to make out his damages. We observe that, in respect of the latter point, Mr. Bardis has file a notice pursuant to

article 495.2 of the former C.C.P. to the effect that he will not be producing a transcript of stenographer’s notes of the trial before Castiglio J. [ 7 ] We are unanimously of the view that the inscription in appeal and supporting documents filed by the appellant fail to disclose any possible error that would give the appeal a reasonable chance of success. [ 8 ] That said, the petitioners have not demonstrated to our satisfaction that the appeal is improper or dilatory in character. [ 9 ] FOR THE FOREGOING REASONS , the Court: [ 10 ] GRANTS the motion to dismiss the appeal, with legal costs; [ 11 ] DISMISSES the appeal, with legal costs.

NICHOLAS KASIRER, J.A. ROBERT M. MAINVILLE, J.A. ÉTIENNE PARENT, J.A.