2024 QCCS 192, 2024 QCCS 192

M.T. c. Attorney General of Quebec 2024 QCCS 192 SUPERIOR COURT (Civil Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No.: 500-17-124482-236 DATE: January 17, 2024 ______________________________________________________________________ PRESIDING: THE HONOURABLE MARTIN CASTONGUAY, J.S.C. ______________________________________________________________________ M. T. Plaintiff v.

ATTORNEY GENERAL OF QUEBEC Defendant ______________________________________________________________________ JUDGMENT on the defendant’s application to dismiss (art. 168(2) C.C.P . ) and to dismiss the judicial application for abuse of procedure (arts. 51 to 54 C.C.P.) ______________________________________________________________________ OVERVIEW [ 1 ] This judgment is the culmination of a file that began with a decision rendered in May 2015, in which the Ministère de l’Emploi et de la Solidarité Sociale, (the MESS) claimed from M.

T. (the plaintiff) the amount of eleven thousand ninety-eight dollars and eighty cents ($11,098.80) that was paid to him but to which he was not entitled. [1] [ 2 ] The reason for that decision was based on the fact that, when the payment was made, the plaintiff had considerable amounts of cash at the Royal Bank of Canada, and was therefore ineligible to receive assistance from the MESS. [ 3 ] The Attorney General of Quebec seeks the dismissal of the application for judicial review for tardiness.

This application concerns the decisions by TAQ-1 and TAQ-2, rendered on February 4, 2021, and November 1, 2021, respectively, and asks that the plaintiff’s various applications be declared abusive. [ 4 ] For the following reasons, the Court will grant the application to dismiss because it is unfounded in law, and it will declare that the various judicial applications brought by the plaintiff since the second decision by the Tribunal Administratif du Québec constitute abuse of procedure.

VARIOUS DECISIONS [ 5 ] The claim for reimbursement dated May 6, 2015, was contested by the plaintiff on August 17, 2015, in an application for review. [2] [ 6 ] On May 12, 2016, the MESS confirmed its decision of May 6, 2015, as follows: [3] [ translation ] Accordingly, the contested claim and the finding of misrepresentation are upheld... [ 7 ] On July 12, 2016, the plaintiff filed a contestation with the Tribunal Administratif du Québec (TAQ) of the decision rendered by the MESS on May 12, 2016. [ 8 ] The minutes of a case management conference held by telephone on November 6, 2020, reveal the following: [4] ▪ Conciliation on August 17, 2017, where the judge entered the file back on the roll to

schedule a hearing. ▪ Applicant’s request to postpone granted on October 25, 2018 (ground: Scheduling conflict). ▪ Mtre Leila Kadri ceased to represent the applicant on January 29, 2020. ▪ Applicant’s request to postpone granted on the day of the hearing, February 6, 2020 (ground: Lumbar sprain and on rest until February

9, 2020). Hearing to be entered on a future roll (Note: no request to postpone would be granted because of the applicant’s insistence on being represented). [ 9 ] The minutes reveal that, after granting the plaintiff two postponements, the TAQ wanted to proceed peremptorily on December 17, 2020. [ 10 ] Although the plaintiff now denies taking

part in this telephone conference, his presence was duly noted in the minutes. [ 11 ] In an undated letter, apparently from around November 27, 2020, the plaintiff applied for another postponement, relying on his too-recent return from Alberta due to the same lumbar sprain he had invoked on February 6, 2020, and his lack of time to properly prepare as grounds. [5] [ 12 ] When he learned on December 14, 2020, that his first request to postpone was refused, he sought a postponement again, this time arguing that he did not have a computer to take

part in the online hearing. [ 13 ] The TAQ proceeded on December 17, 2020, in the absence of the plaintiff, and dismissed his application (TAQ-1). It stated the following with respect to the plaintiff’s request for postponement: [ translation ] [4] The plaintiff has presented a request to postpone this hearing, alleging that he does not have the technological means to attend by videoconference. This request is refused, because the Tribunal has put a room and the equipment and support necessary to take

part in the hearing at his disposal. [5] Despite having been duly summoned, the plaintiff did not attend the hearing and failed to offer valid justification for his absence. [6] In the circumstances, and as authorized by the Act respecting administrative justice , the Tribunal proceeded ex parte . [7] For the following reasons, the Tribunal dismisses the plaintiff’s application because the evidence establishes on a balance of probabilities that he had liquid assets exceeding the permitted exclusions. [ 14 ] The plaintiff contested the TAQ’s decision before the Court of Québec, in an application for leave to appeal from the TAQ decision. [ 15 ] The Court of Québec, per the Honourable Nathalie Chalifour, dismissed this application from the bench on July 7, 2021, because: [6] [ translation ] The right to appeal from a decision rendered by the social affairs division does not exist.

Without a statute attributing a right to appeal, the Court of Québec can do nothing. [ 16 ] At the same time as his application before the Court of Québec, the plaintiff had sought the internal review of the decision of February 4, 2021 (TAQ-1), in an undated letter that was received by the TAQ on June 9, 2021. [7] [ 17 ] In his application for review, the plaintiff reiterated his request for postponement that had been refused. [ 18 ] On November 1, 2021, the TAQ, per administrative judge Jacques Boulanger, dismissed the plaintiff’s application for review (TAQ-2).

Some portions of that decision are enlightening: [ translation ] [4] It is up to the applicant to establish grounds for review or revocation under s.154 of the AAJ . [5] The applicant submits that the Tribunal failed to decide a request to postpone received a few days before the hearing on the merits. [6] The Tribunal refused this request for postponement from the bench and gave the reasons for that refusal in its decision of February 4, 2021. [7] As for the other grounds alleged in support of the application for review or revocation, the Tribunal notes that they do not meet the criteria set out in s. 154 of the AAJ . [ 19 ] On December 9, 2021, the applicant filed a new application with the Court of Québec concerning the TAQ decisions.

It appears that this file is currently suspended (PGQ-10). [ 20 ] At the same time, again in an undated letter, received by the TAQ on April 6, 2022, the plaintiff requested another review of the decision of November 1, 2021. He named this new application as follows: “Application for Reconsideration” “Request for a new Trial Decision dated November 1st, 2021”. [8] [ 21 ] The plaintiff filed a first application for judicial review under 500-17-122271-227. It did not concern the TAQ-1 and TAQ-2 decisions, but the enforcement process taken against him. These are its conclusions: [9]

ORDER : declare null and void the deposition of the certificate of collection and legal hypothec by the defendant ORDER : declare null and void all associated judicial and collection costs ORDER : the deregistration of the legal hypothec. [ 22 ] On February 23, 2023, the TAQ responded to an application titled “Application for Reconsideration” explaining that there would be no “Reconsideration” and that the November 1, 2021, decision was final. [ 23 ] The Court deems it useful to reproduce the letter of February 23, 2023, in full because it constitutes “Exhibit 2” in support of the application for judicial review.

The plaintiff characterizes this letter as a decision, and he asks the Superior Court to exercise its superintending and reforming power in its respect. Dear Sir, We have received your letter dated April 5 th and August 30 th in which you requested a review of the decision regarding a former application for review in accordance with

section 154 of the Act responding Administrative Justice ( CQLR,

chapter J-3 ). The decision rendered on November 1 st , 2021, dismissed your request for review. It is a final decision not subject to appeal . Therefore, we find that your right to a review before the Tribunal has already been exercised . If you still wish to challenge a decision rendered in your file, you may submit your motion to a higher court with the jurisdiction to rule on your application. You may also contact an attorney for further information. Under these circumstances, this present file is and will remain closed. Any future correspondence will be filed without being processed further.

Sincerely, Jacques Boulanger Vice-President Social Affairs Division. [Emphasis added.] ANALYSIS [ 24 ] The application to dismiss is based on articles 168(2) and 51 to 54 of the Code of Civil Procedure . It is appropriate to reproduce some of these provisions. § 3. — Exception to dismiss 168. A party may ask that an application or a defence be dismissed if (1) there is lis pendens or res judicata; (2) one of the parties is incapable or does not have the necessary capacity to act; or (3) one of the parties clearly has no interest.

The party may also ask that an application or a defence be dismissed if it is unfounded in law even if the facts alleged are true. Such an exception may pertain to only part of the application or defence. The court may, on the face of the record, deny an application for dismissal based on the grounds that it has no reasonable chance of success. The party against which the exception is raised may be allowed a period of time to correct the situation but if, on the expiry of that period, the correction has not been made, the application or defence is dismissed.

The dismissal of an application may be urged even if the exception to dismiss was not raised before the first case management conference. 51 The courts may, at any time, on an application and even on their own initiative, declare that a judicial application or a pleading is abusive. Regardless of intent, the abuse of procedure may consist in a judicial application or pleading that is clearly unfounded, frivolous or intended to delay or in conduct that is vexatious or quarrelsome.

It may also consist in a use of procedure that is excessive or unreasonable or that causes prejudice to another person, or attempts to defeat the ends of justice, particularly if it operates to restrict another person’s freedom of expression in public debate.

52 If a party summarily establishes that a judicial application or pleading may constitute an abuse of procedure, the onus is on the initiator of the application or pleading to show that it is not excessive or unreasonable and is justified in law. An application before the trial must be notified to the other parties and filed with the court office at least 10 days before the date of presentation and is defended orally. However, the court may, on the face of the record, deny the application based on the grounds that it has no reasonable chance of success or is abusive.

An application during the trial is presented and defended orally. If the application is defended orally, it is decided by the court on the face of the pleadings and exhibits in the record and the transcripts of any pre-trial examinations. No other evidence is presented, unless the court considers it necessary.

An application for a court ruling on the abusive nature of a pleading that operates to restrict another person’s freedom of expression in public debate must, in first instance, be dealt with as a matter of priority. [ 25 ] The Court of Appeal recently restated the criteria guiding courts hearing applications to dismiss under

article 168 C.C.P. [10] [ translation ] [20] The second paragraph of this provision, like the first one in fact, is the subject of abundant case law (which need not be supplemented with decisions from the common law provinces; such an approach may even be contraindicated, due to the particularities of the Code of Civil Procedure ). The following overview of the case law was recently provided in Province canadienne de la Congrégation de Sainte-Croix c.

Centre de services scolaire Chemin-du Roy (and this is only one example among many more): [ translation ] [9] S ituations justifying dismissing an action at a preliminary stage must be plain and obvious. [citation omitted] Such situations must “be apparent” from a reading of the allegations in the originating application and the various exhibits filed in support. [citations omitted] The facts alleged must be assumed to be true.

The court is not bound, however, by their legal characterization. [citation omitted] A “judge deciding whether an action should be dismissed must determine whether the allegations of fact set out in the motion to institute proceedings are [ translation ] “of such a nature as to open the door to the conclusions being sought” by the applicant”. [citation omitted] [10] In Bohémier c.

Barreau du Québec , the Court set out the following criteria: • The allegations in the originating application must be assumed to be true, including the exhibits filed in support thereof; • Only the facts alleged must be assumed to be true, not their characterization by the plaintiff; • The Court need not decide on the plaintiff’s likelihood of success or whether the facts alleged are well founded.

It is up to the judge on the merits to decide whether the facts alleged have been proved, after hearing the evidence and arguments; • The Court must allow the action to proceed if the allegations in the motion to institute proceedings could give rise to the relief sought; • The purpose of an application to dismiss is not to adjudicate the parties’ legal arguments before a trial is held.

Its sole purpose is to determine whether the conditions for the proceedings are supported by the facts alleged, which requires not only an explicit but also an implicit examination of the law invoked; • An application to dismiss should not be dismissed on the pretext that it raises complex issues; • When considering a dismissal, caution applies.

Where there is uncertainty, litigation should not be ended prematurely; • In case of doubt, the plaintiff must be given an opportunity to be heard on the merits. [11] When deciding on the admissibility of an application, courts must consider the originating application (in this case, the action in warranty), but also the exhibits filed in the record. [citation omitted] However, [ translation ] “if the evidence in the record must be assessed, the case must be allowed to proceed on the merits”. [citation omitted] If there is any doubt on this count, the application to dismiss must be dismissed. [citation omitted] [21] In short, where there is no basis under the applicable law, even when all the facts alleged are assumed to be true (as if the plaintiff has proved them), the legal proceeding may be dismissed at a preliminary stage of the proceedings without a hearing, that is, without a “trial/instruction” within the meaning of art. 265 et seq .

C.C.P. Conversely, despite the difficulty of proving the facts alleged at trial, if there is a possibility that, based on the applicable law, these facts could give rise to the conclusions sought, the Court may not dismiss the proceeding, knowing that [ translation ] “questions of mixed law and fact must be left to the assessment of the judge ruling on the merits and therefore cannot be decided in an application to dismiss”. [citations omitted] [ 26 ] In Lacour c. Construction D.M. Turcotte TRO inc. , the Court of Appeal stated the following with respect to abuse: [11]

[ translation ] [27] The legislature nevertheless kept the exception to dismiss under

article 168 C.C.P., which allows, among other things, an application to be dismissed if “unfounded in law even if the facts alleged are true”. [28] There is nothing preventing prescription from being raised as an exception to dismiss based on

article 168 C.C.P. or as a ground for dismissal under

article 51 et seq . C.C.P. That being so, it is well established that the approaches taken under these two provisions are different. [29] In the first case, the exception to dismiss (168 C.C.P.) must be decided based on the allegations and exhibits in support of the judicial application, which are assumed to be factually true; it is subject to a rule of caution according to which, as far as possible, a trial should not be ended prematurely, considering the serious consequences that would arise from dismissing an action without the application being examined on the merits. [30] In the second case (art. 51 et seq .

C.C.P.), even if the rule of caution also applies, courts may rely to the record as a whole to conclude that the action should be dismissed, including the pleadings, the exhibits, and most importantly, the examinations. [31] When the court hears an application based on both

article 168 C.C.P. and

article 51 et seq . C.C.P., it is appropriate that it first consider the exception to dismiss and only subsequently the application to dismiss based on abuse. That is what the trial judge did. It is appropriate to do so as well on appeal. [citations omitted] [ 27 ] In his application for judicial review, the plaintiff is once again attempting to revisit the TAQ’s decision(s). This is how he expressed himself: [7] The decision of the Tribunal Administrative, based on section 154(2) of the Act respecting Administrative Justice, has no legal basis as required by the spirit of the law.

Consequently it is arbitral in fact, form and nature. [ 28 ] Confronted with the principle of a reasonable delay to file an application for judicial review (that is, 30 days), he doubled down on the position that it is the decision of February 23, 2023, that is being impugned. [ 29 ] Clearly, that is not a decision, but a courtesy letter, nothing more.

The TAQ has only the powers conferred upon it by the Act. [ 30 ] The Act respecting administrative justice provides for only one review of the TAQ’s initial decision. [12] [ 31 ] Merely responding to an application that is not provided for in the Tribunal’s constituent statute, cannot create rights for the plaintiff. [ 32 ] The conclusions of the application for judicial review brought by the plaintiff do not concern the letter of February 23, 2023, but rather the decisions by TAQ-1 on February 4, 2021, and TAQ-2 on November 1, 2021.

The time elapsed between these dates and the filing of the application for judicial review on March 23, 2023, is clearly unreasonable, and the tardiness results in the plaintiff having no right. [ 33 ] The proliferation of proceedings by the plaintiff, including two that are still pending, to avoid paying some $11,000, does not respect the fundamental principle of proportionality that applies in the exercise of rights by any litigant. [ 34 ] There is no doubt that Quebec taxpayers have had to cover considerable expenses to ensure the plaintiff’s various actions, applications for review, or appeals are dealt with. [ 35 ] The Court therefore has no hesitation in characterizing these various actions, two of which are still pending, as abusive.

FOR THESE REASONS, THE COURT: [ 36 ] GRANTS the Attorney General of Quebec’s application to dismiss, and DISMISSES M. T.’s application for judicial review; [ 37 ] DECLARES that the many proceedings filed by M. T., mostly in a bid to avoid having to reimburse $11,098.80, are abusive; [ 38 ] THE WHOLE with costs. __________________________________ MARTIN CASTONGUAY, J.S.C. M. T. Self-represented Mtre Renaud Dumont-Dufresne

Mtre Marie Couture-Clouâtre Bernard, Roy (Justice-Québec) Counsel for the Attorney General of Quebec Date of hearing: November 27, 2023