2022 QCCA 1746, 2022 QCCA 1746

Solutions d'affaires D&A ltée c. Barreau de Montréal 2022 QCCA 1746 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007907-221 ( 500-36-010237-223 ) MINUTES OF HEARING DATE: December 16, 2022 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. APPLICANT Solutions d'affaires D&A Ltée Mr. ALEXANDER SHAULOV Absent RESPONDENT COUNSEL Barreau de Montréal Mtre MAGALI FOURNIER ( Fournier avocat ) Absent DESCRIPTION: Application for leave to appeal from a judgment rendered on October 7, 2022 by the Honourable Mr.

Justice Daniel Royer of the Superior Court, Criminal and Penal Division, District of Montreal (Arts. 291 and 296 of the Code of Penal Procedure ). Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING Continuation of the hearing held on December 12, 2022. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 3.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] The applicant, Solutions d’affaires D&A Ltée, acting through its president, is seeking leave to appeal from a judgment of the Superior Court rendered on October 7, 2022.

Said judgment granted the respondent Barreau de Montréal’s motion to summarily dismiss the applicant’s appeal from a decision of Justice of the Peace Geneviève Claude Parayre dated March 24, 2022. [ 2 ] The Justice of the Peace dismissed the applicant’s motion for a stay of the proceedings relating to the charges filed by the respondent alleging that the applicant had acted contrary to ss. 132 and 133 of the Act respecting the Barreau du Québec (the “ Act ”) and s.188 of the Professional Code . [ 3 ] She held that, contrary to the applicant’s contentions, the Act applies to legal persons, there is no ambiguity in the wording of the statement of offence as to the identity of the offender, there was no violation of the rights protected under the Canadian Charter of Rights and Freedoms or of arts. 184 (5), (7) and (8) of the Code of Penal Procedure (“ C.P.P. ”), nor was there any abuse of power on the part of the respondent shown. [ 4 ] On April 22, 2021, the applicant filed a notice of appeal of this decision, which was met, on April 27, 2022, with the respondent’s motion to summarily dismiss the appeal, in which the respondent argued that the applicant must be represented by an attorney on appeal before the Superior Court and that its appeal should be dismissed, given that the decision dismissing a stay of proceedings is not one contemplated by art. 266 C.P.P. but rather an interlocutory decision that can only be appealed on the merits of the case. [ 5 ] Some five months later, before the Superior Court, the applicant raised for the first time the argument that its appeal was in fact a writ of certiorari (rather than an appeal of an interlocutory decision) and sought to postpone the hearing scheduled for October 7, 2022 to allow the filing of an amended pleading.

This request was denied. [ 6 ] In his judgment, the Superior Court judge indicated that he had not been provided with an amended pleading to support the contention that the appeal is in fact a writ of certiorari . Nonetheless, he addressed the certiorari argument and determined that— absent a demonstration of a jurisdictional error or of any serious argument of bias on the part of the Justice of the Peace that could give rise to a writ of certiorari— such an exceptional remedy was not available to challenge an interlocutory ruling that could not otherwise be appealed from under art. 266 C.P.P .

He dismissed the appeal accordingly. [ 7 ] I must point out that, at the time of arguing the motion for leave to appeal, the applicant asserted that I should have the benefit of the transcripts of the hearing held before the Superior Court for the purpose of assessing the seriousness of its grounds of appeal, but the applicant did not deem it necessary to file the transcripts of the hearing held before the Justice of the Peace, whom it had also accused of bias before the Superior Court. [ 8 ] The characterization of the proceedings adjudicated by the Superior Court is relevant for the purpose of determining the right to appeal (whether it is pursuant to art. 291 C.P.P. or as a motion for certiorari pursuant to the rules of the Code of Civil Procedure (“ C.C.P. ”)).

Regardless of this characterization, I find that leave to appeal should be denied. [ 9 ] In order to obtain leave to appeal from a judgment under the C.P.P. , the applicant must demonstrate that the criteria of art. 291 C.P.P. are met. It must be noted that applications of this nature are rarely granted [1] and that they require the demonstration of a “sufficient interest in a question of law alone / un intérêt suffisant pour faire décider d’une question de droit seulement ”.

To succeed, the applicant must show that the issues raised are issues of law that are serious and stand a reasonable chance of success and that the answers to the questions raised are likely to have a significant impact on the administration of justice or that the judges below appear to have committed obvious errors that caused a flagrant injustice. [ 10 ] In this case, the applicant has failed to make such a demonstration. [ 11 ] The Superior Court judge’s refusal to allow the applicant to postpone the hearing on the

summary dismissal to allow it to amend its pleading or to complete its record does not amount to a breach of the principles of fundamental justice. This is particularly true given that the judge specifically addressed the issue of certiorari , and dismissed it, notwithstanding the absence of a proper motion to support same. [ 12 ] Pursuant to art. 265 C.P.P. , an appeal of a judgment rendered on a writ of certiorari would be subject to the conditions set out for judicial review judgments under art. 30 paras. 2 (5) and 3 C.C.P.

As a result, it would also require the demonstration that the matter at issue is one that should be submitted to the Court because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions, none of which have been demonstrated here. [ 13 ] The use of certiorari was clearly set out in R. v. Awashish , [2] where the Supreme Court wrote: [2] Certiorari is an extraordinary remedy that is available only in narrow circumstances.

Allowing parties to use it to challenge interlocutory rulings, including evidentiary matters, risks gravely slowing the criminal justice system. For similar reasons to those set out by the Court of Appeal, I would dismiss the Crown’s appeal.

[…] [19] Allowing the use of certiorari to provide for de facto interlocutory appeals in criminal cases would give rise to an unprincipled distinction between trials that proceed before provincial courts and those before superior courts. As certiorari is not available against a superior court ( Dagenais , at p. 865), interlocutory decisions by provincial courts would be reviewable, while those by superior courts would not be. [20] Thus, to summarize, certiorari in criminal proceedings is available to parties only for a jurisdictional error by a provincial court judge (see above, at para. 11).

For third parties, certiorari is available to review jurisdictional errors as well as errors on the face of the record relating to a decision of a final and conclusive character vis-à-vis the third party (see above, at para. 12). [21] In obiter , Thibault J.A. stated that certiorari could be available where fundamental rights of an accused are irremediably affected by a ruling and where an appeal would offer no effective remedy. The example she gave was ordering an accused to remove her niqab while testifying. I leave for another day whether certiorari would be available in such circumstances. [ 14 ] Hence, the

summary dismissal of the appeal and the characterization of the Justice of the Peace’s decision by the Superior Court are based on sound and well-established legal principles. The allegations of errors of law committed by the Superior Court judge are without merit and the grounds of alleged bias (which are very similar to those raised against the Justice of the Peace) along with the alleged threat to declare the applicant in contempt are of no assistance under the circumstances of the case. [ 15 ] Lastly, the Barreau de Montréal argued that Mr.

Shauvlov cannot act as a representative of the appellant, a legal person. Although interesting in the circumstances of the present file ( certiorari or appeal under the C.P.P .), it is not necessary to rule on this issue given my conclusion on the merits of the motion for leave to appeal. FOR THESE REASONS, THE UNDERSIGNED: [ 16 ] DISMISSES the motion for leave to appeal from a Superior Court judgment. [ 17 ] WITH COSTS . GENEVIÈVE MARCOTTE, J.A.