2021 QCCA 1634, 2021 QCCA 1634

Ciarallo c. Dyotte 2021 QCCA 1634 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029708-211 ( 500-17-115029-202 ) (500-17-116636-211) MINUTES OF HEARING DATE: October 29, 2021 THE HONOURABLE PETER KALICHMAN, J.A.

APPLICANT Mark Anthony Ciarallo ABSENT and unrepresented RESPONDENT COUNSEL Sébastien Dyotte, in his quality as syndic of the Barreau du Québec Mtre Vincent Thibeault M tre SARAH MARSOLAIS-RICARD ( Thibeault Joyal ) Absent DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on August 23, 2021 by the Honourable Michel Yergeau of the Superior Court , District of Montreal (Art. 30 para. 2 and 357 C.C.P. ) . Motion to postpone notice of motion and application for leave to appeal.

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING Continuation of the hearing held on October 28, 2021. The parties were excused from appearing in Court.

BY THE JUDGE: Judgment – see page 3. Mélanie Camiré, Clerk at the hearing REASONS FOR JUDGMENT – APPLICATION TO POSTPONE [ 1 ] On October 28, 2021, I dismissed the Applicant’s request for a postponement, reasons to follow. These are my reasons. ****** [ 2 ] On October 15, 2021, the Applicant advised the Court that he wished to postpone the hearing set for October 28, 2021, of his Application for Leave to Appeal. In support of his request, the Applicant sent several detailed emails to the Court, followed, on October 22, 2021, by a formal application to postpone and then on October 27, 2021, by an 85-paragraph

summary of his arguments. In addition, the Applicant filed what he describes as his medical file.

It is comprised of well over 300 pages of medical notes, test results, appointment slips and prescriptions. [ 3 ] The Respondent opposes the request for postponement. [ 4 ] The parties were advised that the Applicant’s application to postpone would be heard on October 28, 2021 and that they should be ready to proceed in the event that the postponement was not granted. [ 5 ] The Applicant’s grounds for requesting a postponement may be summarized as follows: ➢ He has been in treatment for various medical conditions for years; ➢ He has been given a series of “medical reprieves” that prevent him from working and that he is currently under such an “reprieve”; ➢ He lacks the capacity to dedicate the approximately 60 hours of work that he feels are necessary to prepare for the hearing given the side effects he is suffering from; and ➢ There is tremendous “bad blood” in this file and he is not “up to the aggravation, stress, mental anguish and physical effort” required to make proper representations before the Court of Appeal. [ 6 ] It appears that the Applicant suffers from a variety of medical conditions including bladder cancer, high blood pressure, hypertension, cellulitis and gout. [ 7 ] That said, the issue before me is not whether the Applicant has ongoing medical problems – he clearly does – but whether those problems prevent him from participating in a Court hearing.

In my view, they do not. [ 8 ] On several occasions, the Applicant has received medical notes suggesting that he not work for a period of time in order to recover from procedures or to avoid additional stress.

The Applicant was given such a note from the Cornwall Health Care Centre on September 30, 2021, indicating that he should rest for a further three weeks to recover from a cystoscopy. [ 9 ] Whether or not the doctor who prepared that note would have advised against allowing the Applicant to participate in a hearing that should last no more than one hour and can be conducted via videoconference or by phone, is irrelevant.

The period of rest that he prescribed ended last week. [ 10 ] At the hearing of the application to postpone, the Applicant produced an additional document entitled “Sick Note”, which bears the date of October 22, 2021 and states the following:

This is to certify that the above patient, seen in our medical office on 22-Oct-2021, was unable to work and or attend school due to medical reasons on the dates specified below. From: 22-10-2021 To: 22-1-2021 [ 11 ] The additional note, which, for some reason, is written in the past tense, gives no detail in regards to the Applicant’s medical condition.

Furthermore, despite the fact that it was apparently prepared on the basis of the Applicant’s visit of October 22, 2021 - after he had already indicated his intention to seek a postponement - it makes no reference to participation in court proceedings. [ 12 ] The Respondent points out that the Applicant has made many such requests in the course of their ongoing battle and refers me to a number of judgments which dismiss identical requests, including the one on appeal here. The Respondent submits that this is part of a pattern of conduct designed to delay.

That may well be the case but it is not necessary for me to consider the Applicant’s previous history of postponement requests since, in my view, he fails to raise compelling grounds in this case, to justify a postponement. Nothing in the medical record produced by the Applicant, including the note of October 22, 2021, convinces me otherwise. [ 13 ] Lastly, the Applicant requests that his medical record be filed in a sealed envelope and that it only be accessible by the parties or their attorneys in accordance with

Article 16 of the Code of Civil Procedure .

Since these documents relate to the Applicant’s health, his request will be granted. ****** JUDGMENT – APPLICATION FOR LEAVE TO APPEAL [ 14 ] The Applicant seeks leave to appeal from a judgment rendered on August 23, 2021 by the Superior Court, district of Montreal (the Honourable Michel Yergeau) dismissing his application for recusation. [ 15 ] The application for recusation was presented in the course of a hearing involving two applications for declarations of contempt of court brought against the Applicant, a former lawyer, by the Respondent, the assistant Syndic of the Barreau du Québec .

The contempt of Court proceeding stems from the Applicant’s alleged failure to remit his professional records following a decision by the Disciplinary Council of the Barreau du Québec to provisionally strike him from the roll of the Order of Advocates. [ 16 ] The Applicant brought his application for recusation on the second day of trial.

It was taken under advisement and then dismissed in a 21-page written judgment in which the judge reviews the procedural history of the case, summarizes the applicable law and case law and explains why none of the four broad grounds raised by the Applicant warrant recusation. ****** [ 17 ] A decision rendered on an application for recusation may be appealed with leave of a judge of the Court of Appeal. [1] Leave to appeal such a decision is governed by the criteria set out in

article 31 C.C.P . [2] Accordingly, the Applicant must demonstrate that the judgment determines in part the dispute or causes irremediable injury to a party, and that the proposed appeal is in the interests of justice in that it merits the attention of the Court, has a reasonable chance of succeeding and is consistent with the principles of proper case management and of proportionality. [3] As has been decided on numerous occasions, a judgment rendered on an application for recusation is considered to cause irremediable injury to a party. [4] [ 18 ] Leave to appeal in this case will not be granted because the Applicant has failed to demonstrate an obvious weakness in the judgment.

In my view, he has no reasonable chance of succeeding in his appeal. [ 19 ] While the Application for Leave to Appeal contains evocative terms to describe the judge’s conduct, such as intimidation, harassment, threats, disdain and bias, there is little if any substance to support such assertions. The Applicant may believe that the judge has demonstrated a bias but his subjective appreciation cannot be the basis for recusation.

The question is not what he concludes but rather what “ would an informed person, viewing the matter realistically and practically—and having thought the matter through— conclude.” [5] [ 20 ] Furthermore, establishing that the judge erred in failing to find a reasonable apprehension of bias will be that much more difficult in light of the fact that the Applicant has not produced the transcripts of the hearing. [6] The Application is based, in large measure, on the Applicant’s impressions of what transpired at the hearing. [ 21 ] As the judge acknowledges, he was required to intervene on numerous occasions to ensure that the rights of witnesses were protected in the context of what he felt was aggressive and inappropriate interventions by the Applicant.

This led to an exchange between the judge and the Applicant which is reproduced at paragraph 98 of the judgment and which is the central focus of the Application for leave to appeal. The exchange, as well as the preceding paragraphs which place it in context, are reproduced below : [91] From the outset, Mr. Ciarallo chose to be aggressive, even hostile, when he cross-examined the witnesses. The Court quickly noted that his purpose was to throw the witnesses off balance and settle his score.

This is an outdated approach which usually does not yield the expected results, but it can be justified if a witness evades the questions, contradicts himself or herself, or has a hostile attitude.

[ 92] No such thing happened during the proceeding on July 13, 2021. Witnesses Dyotte, Roberge, and Fontaine were willing to answer the questions. And in the case of Mtre Dyotte and Ms. Roberge, treated Mr. Ciarallo with courtesy and answered his often- confusing questions with measured and polite responses. The first two witnesses graciously agreed to the cross-examination, which in no way justifies any assumptions about the Court’s findings on the merits once the defendant has presented his defence evidence, should he choose to do so. We will consider Mr.

Fontaine’s cross-examination later. [93] In the circumstances, the Court is of the view that Mr. Ciarallo could not label the answers of witness Dyotte with the verb “to pontificate”, that is, to talk in an annoyingly pompous and dogmatic manner. [7] The witnesses’ answers in no way meet that definition. And it is not up to the person conducting the examination to comment on the witness’ remarks as the investigation progresses. It is the role of the litigants during arguments, once each side has closed its case, to review the witness’ remarks and note any weaknesses, and it is up to the Court to draw conclusions.

Everyone has his or her own role. [94] In this context, therefore, to avoid both abuse and wasted time, the Court clearly told Mr.

Ciarallo that it would not tolerate this type of comment from him and that he had to limit himself to questions. [95] The defendant persisted in the same vein, repeating irrelevant questions, despite the objections of counsel for the syndic upheld by the Court. [96] Thus, when the investigator Roberge testified that she felt it was justified to call the police force to help her enforce the Pinsonnault order and the Sheehan order, it is clear that it was not up to her to decide how many police officers and patrol cars would be dispatched to 235 Alice-Carrière St. in Beaconsfield.

Once the witness explained this, it was redundant and pointless to persist with this line of questioning, hence the undersigned’s firm intervention to bring the defendant to order. [97] Similarly, to continue questioning the syndic about the preparation of the rolls of the Disciplinary Council, after the syndic had explained that he was not involved in that activity, had no purpose other than to intimidate the witness and waste the Court’s time. [98] Grown weary of his tactics, the Court had to raise its voice to bring Mr. Ciarallo to order.

Contrary to the defendant’s claim, the judge did not tell him “to shut up”. The exchange at issue, which occurred at 1:56 p.m. on July 13, 2021, reads as follows: Judge Sir, we are losing the time of the Court. I am sorry but you will ask useful questions or you will shut up. It is as clear as that. Mr. Ciarallo You are telling me to… [inaudible] Judge No. Ask useful questions for the Court not for your own pleasure. Because now you are asking questions only for your own pleasure. So please ask useful and pertinent questions to the witness.

It is all I ask you to do . [ 22 ] The judge’s choice of the words « shut up » is unfortunate. However, when viewed in the context of the exchange as it is transcribed in the judgment, they do not create a reasonable apprehension of bias. [8] Furthermore, contrary to what the Applicant argues, he was at no time told to “shut up”.

From the exchange that is reproduced in the judgment, it appears that the judge, while firm in his direction, remained polite. [ 23 ] The bar for establishing a reasonable apprehension of bias is high. [9] Even conduct that could objectively be described as caustic, abrupt or cantankerous, will not necessarily justify recusation. [10] The conduct complained of here is clearly not on that level. [ 24 ] Under the circumstances, the appeal has no reasonable chance of success and leave will therefore be denied.

FOR THESE REASONS, THE UNDERSIGNED: [ 25 ] DISMISSES the application to postpone with legal costs. [ 26 ] ORDERS that the medical record communicated by the Applicant in support of his application to postpone be filed in a sealed envelope and that it only be accessed by the parties or their attorneys. [ 27 ] DISMISSES the Application for leave to appeal with legal costs. PETER KALICHMAN, J.A. [1]

Article 205 C.C.P . reads as follows:

205. The application for recusation is decided by the judge seized of the case. The decision may be appealed by leave of a judge of the Court of Appeal. If the application is granted, the judge must withdraw from the case and abstain from sitting. If the application is dismissed, the judge continues to be seized of the case. The court clerk advises the chief justice or chief judge of any case in which the trial is postponed because the judge has decided to withdraw from the case. 205 .

La demande de récusation est décidée par le juge saisi de l’affaire et sa décision peut faire l’objet d’un appel sur permission d’un juge de la Cour d’appel. S’il accueille la demande, le juge doit se retirer du dossier et s’abstenir de siéger; s’il la rejette, il demeure saisi de l’affaire. Le greffier avise le juge en chef de toute affaire dont l’instruction est remise en raison de la décision d’un juge de se récuser.