2013 QCCA 658, 2013 QCCA 658

Poplawski c. McGill University Non-Academic Certified Association 2013 QCCA 658 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023247-133 (500-17-061419-100) DATE: APRIL 12, 2013 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. CLÉMENT GASCON, J.A. SLAWOMIR POPLAWSKI PETITIONER – defendant v.

McGILL UNIVERSITY NON-ACADEMIC CERTIFIED ASSOCIATION RESPONDENT – plaintiff JUDGMENT [ 1 ] The petitioner seeks permission to appeal the judgment rendered on July 5, 2012 by the Superior Court, District of Montreal (the Honourable Madam Justice Sophie Picard), rectified on September 12, 2012, deciding that : [The following are the rectified conclusions of the judgment.] FOR THESE REASONS, THE COURT: [55] GRANTS the motion of Plaintiffs to declare Mr Slawomir Poplawski a vexatious litigant; [56] DECLARES Mr Slawomir Poplawski as being a vexatious litigant, subject to the prior authorization process provided under

Article 84 of the Rules of Practice of the Superior Court of Québec in Civil Matters , with respect to Plaintiffs; [57 ]

a) PROHIBITS Mr Slawomir Poplawski from instituting, directly or indirectly, any action, motion or application, in any pending or future file, before the Superior Court, involving, directly or indirectly, McGill University Non-Academic Certified Association (M.U.N.A.C.A.) or Public Service Alliance of Canada (PSAC) , without having first obtained prior judicial authorization from the Chief Justice of the Superior Court or the judge designated by him;

b) PROHIBITS Mr Slawomir Poplawski from instituting, directly or indirectly, any action, motion or application, in any pending or future file, before the Court of Québec, involving, directly or indirectly, McGill University Non-Academic Certified Association (M.U.N.A.C.A.) or Public Service Alliance of Canada (PSAC) , without having first obtained prior judicial authorization from the Chief Justice of the Court of Québec or the judge designated by her ;

c) PROHIBITS Mr Slawomir Poplawski from instituting, directly or indirectly, any action, motion or application, in any pending or future file, before the Commission des relations du travail or any administrative tribunal, involving, directly or indirectly, McGill University Non-Academic Certified Association (M.U.N.A.C.A.) or Public Service Alliance of Canada (PSAC) , without having first obtained prior authorization from the President of said administrative tribunal or the member of said tribunal designated by the President ; [58] ORDERS that the court clerks and other justice officers of the Superior Court, Court of Québec, Commission des relations du travail , or any administrative tribunal, refrain from accepting, recording, registering in file records or listing on any roles of hearings any procedure from Mr Slawomir Poplawski involving, directly or indirectly, McGill University Non-Academic Certified Association (M.U.N.A.C.A.) or Public Service Alliance of Canada (PSAC) , unless a prior authorization from the Chief Justice of the Superior Court (or the judge designated by him), the Chief Justice of the Court of Québec (or the judge designated by her) or the President of the administrative tribunal (or the member of said tribunal designated by the President), as the case may be , appears on the procedure; [59] ORDERS that this judgment does not apply to the hearing of the 5 th complaint (Exhibit P-15d) before the Commission des relations du travail , which has been scheduled to continue on September 5, 2012; [60] CONDEMNS the Defendant to pay $10,264.21 to McGill University Non-Academic Certified Association (M.U.N.A.C.A.) , with the legal interest and additional indemnity, as of the date of this judgment;

[61] WITH COSTS. [ 2 ] The petitioner could have immediately appealed the July 5, 2012 judgment as of right, within the 30-day time limit prescribed by art. 494 and 495 C.C.P. Since the September rectification affected the conclusions of the July judgment, he could possibly have exercised his right of appeal as of the date of the correction (art. 475, in fine , C.C.P. ), that is to say, 30 days after he received copy of the rectified judgment .

He did not file an inscription in appeal within that time frame, however, hence the present “motion for leave to appeal after the expiry of the term”. [ 3 ] The petitioner's motion, which was filed on January 4, 2013, is governed by art. 523 C.C.P. , which states that: 523. La Cour d'appel peut, nonobstant l'expiration du délai prévu à l'article 494, mais pourvu qu'il ne se soit pas écoulé plus de six mois depuis le jugement, accorder une permission spéciale d'appeler à la

partie qui démontre qu'elle a été, en fait, dans l'impossibilité d'agir plus tôt. Toutefois, un jugement rendu dans les circonstances prévues à l'article 198.1 ne peut faire l'objet d'une telle permission. 523. The Court of Appeal may, notwithstanding the expiry of the time allowed by

article 494, but provided that more than six months have not elapsed since the judgment, grant special leave to appeal to a party who shows that in fact it was impossible for him to act sooner. However such leave cannot be granted in respect of a judgment rendered in the circumstances contemplated in

article 198.1. [ 4 ] According to the case law [1] , four conditions must be fulfilled before leave to appeal a judgment is granted pursuant to this provision: 1. the judgment was not rendered in the circumstances contemplated by art. 198.1 C.C.P. ; 2. no more than six months have elapsed since the judgment was rendered; 3. it was impossible for the party who wishes to appeal to act within thirty days of the judgment, as prescribed by art. 494 and 495 C.C.P. ; 4. the appeal must have reasonable chances of success. [ 5 ] In the present case, the first two conditions are met.

The third and fourth are not. [ 6 ] As far as the third condition is concerned, the “motion for leave to appeal after the expiry of the term” does not explain why it was impossible for the petitioner to appeal Picard, J.'s judgment (as rectified) within the 30 days prescribed by the Code of Civil Procedure . The shock which he may have felt upon receiving this judgment or prior judgments is not a valid reason for having failed to act in due time.

This is especially so in view of the fact that the petitioner was able to introduce a variety of proceedings following both the July 5 judgment and its September 12 rectified version. [ 7 ] For instance, on or around July 19, 2012, he filed a motion for revocation of the July 5 judgment and later tried to appeal the judgment which, on September, 12, 2012, dismissed such motion.

In August 2012, he also filed with the Superior Court a “motion/application for leave to appeal of July 5, 2012 decision”, which was apparently amended on or around September 17, 2012, and which was dismissed on September 28, 2012 by Picard, J. He then sought leave to appeal the latter judgment (as well as the July 5 judgment and prior interlocutory judgments of June 13 and 14, 2012), filing his motion on October 29, 2012.

This motion was dismissed by Morissette, J.A. on January 7, 2013. [ 8 ] The various grounds of appeal stated in the petitioner's motion do not shed any light on the reasons why, in this context, it was impossible for him to file his appeal of the July 5/September 12, 2012 judgment in due time. [ 9 ] In the circumstances, the fact that he is an unrepresented litigant and may not be familiar with the Code of Civil Procedure cannot excuse the delay or amount to an impossibility to act sooner within the meaning of art. 523 C.C.P. [ 10 ] As far as the fourth condition is concerned, even if the Court were to conclude that the petitioner could not act sooner, his “motion for leave to appeal after the expiry of the term” cannot be granted since the appeal has no reasonable chance of success.

None of the grounds of appeal stated in this motion can indeed justify that the matter be referred to the Court for further examination. [ 11 ] The main grounds of appeal raised by the petitioner appear to be set out in paras. 17, 18 and 19 of the motion, which read as follows: 17. Today is the last day to appeal in the Court of Appeal the questionably conducted trial by the judge (Hon.

Picard) who erred in her judgment because: a). she made everything possible to justify elimination of the Applicant presence at the trials of 13-14.06.12 (it was done by her stating about fake medical certificate produced by the Applicant without verifying it and the same way was treated his documentation about pending procedures for obtaining a lawyer) what eliminated his legitimate rights for fair trial, b). she openly acted as biased judge following instruction from her supervisor (Hon. Wery) from 08.03.12 (

Schedule 2 – page 3) declaring '' that Mr. Poplawski is trying to abuse the judicial system in order to avoid the presentation of the Motion to declare him a vexatious litigant; He seems ready to say anything to avoid the outcome of the motion to declare him vexatious '' ( in this statement this boss of Hon. Picard carefully avoided to say that the applicant was mainly ordered to pay a lot of money and that every person has a right

for fair trials – it is also important to mention about forbidden for judges presentation of personal opinions about the parties involved in the trials before the final sentences are issued ) c). this questionable order given to Hon. Picard by her superiors was confirmed by Hon. Legre in his decision (page 6 –

Schedule 4 ) where he says that a controversial practice of using the same judge to hear the appeal contesting its own decision is '' widely accepted '' (but is it legal/proper?) and what also 'explains' another motive of the Chief Judge behind his not sending the appeals contesting the Picard's decision to the Court of Appeal for what now is blamed the Applicant (by Hon. Legre); d). The Hon. Wery's decision of barring the Applicant '' from presenting any witnesses during the hearing of the motion '' (

Schedule 2 – page 3) was made without formal suspending/annulling previous court's decisions from June-July 2011that allowed him presenting his witnesses for three days and Hon. Wery, with other judges, never presented any legal argumentations that would contest used by the Applicant art.274.1.4; e). The Hon. Wery also fabricated a statement that the Applicant '' would need time to make a list of those names '' (

Schedule 2 – page 2) as it was stated by him '' I will bring the list in the afternoon as this meeting was supposed to deal with recusation of the judge and this documentation was left at home '' and what can be confirmed/documented – Hon. Wery does not act honestly by fabricating facts that can fit with his biased decision. 18. The trial judge Hon.

Picard manifestly erred when she did not postponed the trial with the Applicant's absence justified by legitimate (not fake as claimed by her without any attempt of basic verification) medical certificates and documentations from Commission des services juridiques attached to his motions for postponement. 19.

The Applicant will demonstrate that the courts openly discriminate the self represented parties as in the opposite situation involving the same parties – last year the Defendant was absent at another hearing that involved this case without providing any explanations (with received notification that the Applicant will be present) the judge postponed the hearing and what was not done by Hon.

Picard on 13.06.12 that should invalidate this whole case; [Reproduction in whole.] [ 12 ] These paragraphs and, as well, the rest of the motion, which are more in the nature of a diatribe than an orderly statement of grievances, are hardly plausible and reflect a misapprehension of the rules of procedure.

The gratuitous accusations of fabrication and discrimination do not add credibility to the motion. [ 13 ] As far as the rule relating to a fair hearing is concerned, one has to be reminded that the petitioner decided not to be present at the hearing that led to the July 5 judgment (later rectified) [2] . * * [ 14 ] It must finally be noted that the hearing before this Court was somewhat difficult (it started with the petitioner requesting the recusal of the presiding judge, which request was denied).

From what we could gather, the petitioner alleged among other things that the Court and its personnel somehow manipulated the docket of the day in order that he be heard in an empty room, without any witness to see how unfairly he would be treated.

Having received, the week before, a notice that is currently sent to all parties to motions heard by the Court on Mondays, he also complained that this was an attempt to deprive him of his right to argue his case fully, by imposing an oppressive 15-minute time limit to his presentation. [ 15 ] Through all of this, the petitioner, who chose to focus on accessory, irrelevant or non-existent issues, was unable or unwilling to explain his grounds of appeal clearly.

He basically accused MUNACA, McGill University, the Superior Court, the Court of Appeal and the judiciary at large, as well as the Commission des relations du travail of behaving in a discriminatory fashion against immigrants in general and against himself in particular.

He also contended that the courts, by their attitude, effectively conspired with MUNACA and McGill University to deprive him of his rights without cause and without due process. [ 16 ] Since the petitioner persisted in this line of argument, the hearing was cut short after an hour (approximately) and the petitioner notified that judgment would be rendered on his “motion for leave to appeal after the expiry of the term”.

Needless to say, his accusations do not constitute valid grounds of appeal and the petitioner's conduct throughout the hearing, deplorably, illustrate the very reasons why Picard J. declared him to be a vexatious litigant. FOR THESE REASONS, THE COURT: [ 17 ] DISMISSES the “motion for leave to appeal after the expiry of the term”, with costs. YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. CLÉMENT GASCON, J.A. Mr. Slawomir Poplawski Personnaly Petitioner

Mtre Marie-Claude St-Amant MELANÇON MARCEAU GRENIER SCIORTINO For the respondent Date of hearing: April 8, 2013