2018 QCCA 762, 2018 QCCA 762

Zhang c. Jian 2018 QCCA 762 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025125-154 (505-17-002072-058) MINUTES OF THE HEARING DATE: May 7, 2018 CORAM: THE HONOURABLE yves-marie morissette , J.A. marie st-pierre , J.A. patrick healy , J.A. APPELLANT / RESPONDENT COUNSEL ZHI LONG ZHANG IN PERSON RESPONDENT / APPLICANT MING JIAN IN PERSON DESCRIPTION : Amended application for revocation of the judgment rendered on October 24, 2016 by the Court of Appeal (Article 345 C.C.P. ) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault

HEARING 11:33 Commencement of the hearing. 11:33 By the Court: judgment – see page 3. 11:36 Conclusion of the hearing.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The applicant Ming Jian seeks the revocation of a judgment of this court [1] , dated October 24 th , 2016, which reversed a judgment of the Superior Court, district of Montreal, of February 10 th , 2015. [ 2 ] The latter judgment had dismissed the motion for revocation of judgment brought by the respondent Zhi Long Zhang against an earlier judgment of the Superior Court dated June 1 st , 2006. [ 3 ] The judgment of 2006 had condemned the respondent by default and ordered him to pay damages of 2 326 406 $ for personal injuries inflicted to the applicant.

The respondent failed to have this judgment revoked in the Superior Court (thus the judgment of February 10 th , 2015) but he later succeeded in his appeal. [ 4 ] The Court of Appeal’s order of October 24 th , 2016 reads in part as follows: [27] INFIRME le jugement de première instance, et, procédant à rendre le jugement qui aurait dû être rendu : ACCUEILLE la requête en rétractation de jugement quant au rescindant; RÉTRACTE le jugement prononcé par défaut de comparaître le 1 er juin 2006 [28] RETOURNE le dossier à la Cour supérieure pour que la procédure suive son cours. [ 5 ] For some unexplained reason, the file in the Superior Court has not progressed and what is generally known in revocation proceedings as the rescisoire stage of the case remains pending. [ 6 ] The applicant now wishes to adduce in this court various items of evidence which, according to her, pertain to her application for revocation of judgment directed against the judgment of October 24 th , 2016. [ 7 ] As it is currently formulated, this application, large parts of which are unintelligible, could in all likelihood have been struck from the roll pursuant to the second paragraph of

section 64 of the Civil Practice Regulation (Court of Appeal) [2] . [ 8 ] However, it is not inconceivable that the applicant, who makes renewed allegations of fraud against the respondent, has a case to make, based on fresh evidence supportive of her claims against the respondent. The appropriate forum to litigate such claims is the Superior Court, for the evidence which the applicant wishes to tender will in all probability attract counter evidence from the respondent, all of which will have to be ruled upon and weighed by a trial judge.

The Superior Court is better equipped for this task than is the Court of Appeal. [ 9 ] These matters should therefore be aired in the case now still pending in the Superior Court, if necessary with prior amendments to the pleadings as they now stand. [ 10 ] FOR THESE REASONS , the motion is dismissed, without costs.

yves-marie morissette, J.A. marie st-pierre, J.A. patrick healy, J.A.