2019 QCCA 323, 2019 QCCA 323

V.C. c. P.G. 2019 QCCA 323 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028095-198 (500-17-103951-185) MINUTES OF THE HEARING DATE : February 22, 2019 THE HONOURABLE STEPHEN W. HAMILTON, J.A. PETITIONER COUNSEL V. C. Mtre ALFREDO MANCINI (Kaufman s.e.n.c.r.l./LLP) RESPONDENT COUNSEL P. G. Mtre KARIM RENNO (Renno Vathilakis inc.) DESCRIPTION : Motion for leave to appeal from a judgment rendered in the course of the proceedings rendered on January 28, 2019 by the Honourable Justice Kirkland Casgrain of the Superior Court, District of Montreal. (Art. 9, 18, 31 C.C.P. ) Clerk : Mihary Andrianaivo Courtroom : RC.18 HEARING

9:30 Continuation of the hearing of February 20, 2019. The presence of the Parties is not required, today. BY THE JUDGE : Judgment – See page 3. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] The Petitioner seeks leave to appeal the judgment of the Superior Court, District of Montreal (the honourable Kirkland Casgrain), rendered on January 28, 2019, [1] which dismissed his application to dismiss the Respondent’s action and, to the extent that any part of the action was not dismissed, to strike certain allegations in the action. [ 2 ] The Respondent was married to the Petitioner’s daughter.

They were divorced by judgment dated July 13, 2017. [2] The divorce was highly contentious. It included the seizure of the Respondent’s assets for over two years through a Mareva injunction that was ultimately set aside and the publication of a newspaper

article reporting on the allegations made against the Respondent. The parties to the divorce spent over $3 million each on legal and other professional fees. [ 3 ] The Respondent is now suing the Petitioner. He alleges that the Mareva injunction was obtained as a result of allegations fabricated by the Petitioner, and that the newspaper

article was based on information provided by the Petitioner. The Respondent claims $3 million in reimbursement of the legal fees he incurred in the divorce, $1 million in damages for defamation in connection with the newspaper article, and $1 million in punitive damages. [ 4 ] The Petitioner made an application to dismiss the Respondent’s action and, to the extent that any part of the action was not dismissed, to strike certain allegations. The Petitioner raised a number of grounds under Art. 168 C.C.P .: res judicata , prescription, lack of interest, no reasonable chance of success and abuse.

Subsidiarily, the Petitioner sought to strike allegations relating to his wealth and power as irrelevant and excessive. [ 5 ] The trial judge dismissed the application. The Respondent seeks leave to appeal under Art. 31 C.C.P. [ 6 ] It is well established that a judgment dismissing a motion to dismiss based on Art. 168 C.C.P . is not susceptible of appeal, because such judgments do not bind the trial judge and can be remedied by the final judgement. Accordingly, they do not determine any part of the dispute or cause irremediable injury to a party within the meaning of Art. 31 C.C.P .

There is an exception to this principle, for matters such as absence of jurisdiction, res judicata, and lis pendens. This exception is based on the principle that a court should not hear a trial before deciding that it does not have jurisdiction to hear the trial. [ 7 ] Most of the arguments raised in first instance do not fall within this exception and do not justify granting leave to appeal. [ 8 ] However, one of the Petitioner’s arguments warrants closer review.

The Petitioner argues that there is res judicata in that the Respondent made similar claims for the reimbursement of his legal and expert fees, for damages to his reputation and for punitive damages against his wife in the divorce proceedings and he was only awarded $10,000 for damage to his reputation, with the other claims being dismissed. This res judicata argument, he says, brings him within the exception and justifies my granting leave to appeal in the present matter. [ 9 ] I do not agree. [ 10 ] The res judicata argument that the Petitioner puts forward is difficult.

It is not a matter of comparing the divorce judgment to the current action and easily finding the three identities. The Petitioner was not a party to the divorce action and the judge in the divorce proceedings could not order him to pay damages. He pleads the expanded view of “party” adopted by the Court in Ungava Mineral Exploration Inc. c. Mullan [3] but it is not clear that it extends to him. The judge in the divorce proceedings made comments to the effect that the Petitioner was “piloting” the proceedings, but the Petitioner challenges that characterization in his defence and cross-demand.

Further, it is not clear whether the $10,000 damages awarded to the Respondent were intended to be full compensation for all damages suffered by the Respondent as the result of the Mareva injunction and the newspaper article, or whether the wife’s liability was limited

as a result of her limited role on those issues. It is clear that the judge wanted her judgment to put an end to the guerilla warfare between the parties, but it is not clear whether she intended to release the Petitioner from any liability for his actions. [ 11 ] In these circumstances, it would be premature and contrary to the best interest of justice, the proper administration of justice and the principle of proportionality (Art. 9, 18, and 20 C.C.P .), for me to grant leave to appeal and submit the issue to the Court at this preliminary stage.

The parties should proceed to trial in the Superior Court, make all of the evidence relevant to this issue and then argue the issue before the trial judge. The trial judge will be in a better position to judge the merits of the argument. If it is still relevant for either party to do so, the issue can then be raised on appeal with a much more complete record. THEREFORE, THE UNDERSIGNED: [ 12 ] DISMISSES the application for leave to appeal and to suspend the proceedings in first instance, with legal costs against the Petitioner. STEPHEN W. HAMILTON, J.A.