2014 QCCA 1340, 2014 QCCA 1340

Rossdeutscher (Estate of) c. Organisation d'éducation et d'information logement de Côte-des-Neiges (OEIL) 2014 QCCA 1340 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024402-141 (500-17-074630-123) MINUTES OF THE HEARING DATE: JULY 8, 2014 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. MANON SAVARD, J.A.

APPELLANTS COUNSEL THE ESTATE OF THE LATE EISIG ROSSDEUTSCHER HEDY BLANK RAPHAEL ROSSDEUTSCHER Mtre Lionel Rossdeutscher LIONEL ROSSDEUTSCHER & ASSOCIÉS RESPONDENTS COUNSEL ORGANISATION D’ÉDUCATION ET D’INFORMATION LOGEMENT DE CÔTE- DES-NEIGES (ŒIL) CLAUDE DAGNEAU Mtre Geeta Narang NARANG & ASSOCIÉS JESSICA ANNE LIPES Mtre Marie-Josée Bélainsky FONDS D'ASSURANCE RESPONSABILITÉ PROFESSIONNELLE

Motion to dismiss an appeal from a judgment rendered on April 9, 2014 by the Honourable Madam Justice Johanne Mainville of the Superior Court, District de Montréal (Art. 501, para. 1, (2), (4.1),

(5) C.C.P.) Motion “ de bene esse ” for leave to appeal beyond delay (Art. 502 & 523 C.C.P . ) Motion by respondents to adduce new evidence Court Clerk: Linda Côté Courtroom: Pierre-Basile-Mignault HEARING 11:45 Commencement of the hearing. 11:46 Submissions by Mtre Lionel Rossdeutscher. 12:15 Submissions by Mtre Geeta Narang. 12:46 Reply by Mtre Rossdeutscher. 12:57 Recess of the hearing. 13:10 Resumption of the hearing. 13:11 UNANIMOUS JUDGMENT rendered – see page 3. 13:12 End of the hearing. (

s) Court Clerk BY THE COURT JUDGMENT [ 1 ] Petitioners have inscribed in appeal a judgment of the Superior Court, District of Montreal (the Honourable Johanne Mainville), rendered on April 9, 2014, which dismissed their re-re amended motion to institute proceedings as improper pursuant to

article 54.1 C.C.P. Owners of residential apartment buildings, the petitioners took action for defamation against the Organisation d’éducation et d’information logement de Côte-des-Neiges (OEIL), a non-profit organization with a mission to improve living conditions of low- income tenants in a Montreal neighbourhood, its co-ordinator Claude Dagneau and Mtre Jessica Lipes, a lawyer acting on behalf of tenants. The petitioners alleged that the respondents are liable, solidarily, for over $5.6M in damages.

[ 2 ] The respondents have moved to dismiss the appeal pursuant to

article 501, para. 1 (2), (4.1) and

(5) C.C.P., arguing variously that (

i) it was not regularly brought before the Court given the lack of leave; (ii) it has no reasonable prospect for success; and (iii) the appeal is itself improper. [ 3 ] The petitioners have filed a de bene esse motion for special leave to appeal in the event leave is required pursuant to

article 26, para. 2

(4.1) C.C.P. [ 4 ] The respondents contest the motion for special leave on the grounds that the failure to apply for leave within 30 days should not be excused and, in any event, the appeal has no reasonable prospect of success and is abusive. [ 5 ] Finally, the respondents seek permission to adduce, as new evidence, the judgment of the Superior Court in Raphael Rossdeutscher v. Montréal (Ville de) , 2014 QCCS 2392 , rendered after the judgement a quo .

They assert that the judgment would “provide the Court with important information about the Appellants’ [ i.e . the petitioners’] use of the court system”. [ 6 ] For the reasons that follow, the motion for special leave should be dismissed and the motion to dismiss the appeal should be granted. We are of the unanimous view that the appeal has no reasonable prospect of success. In the circumstances, the motion to adduce new evidence is moot. *** [ 7 ] Given that the judgment a quo dismisses the petitioners’ action as improper, leave to appeal was required pursuant to

article 26, para. 2

(4.1) C.C.P. This was not seriously contested at the hearing. [ 8 ] The petitioners’ motion de bene esse asks that leave to appeal be granted, outside the 30 day period provided by law, pursuant to

article 523 C.C.P. [ 9 ] Counsel for the petitioners notes that the failure to ask for leave within 30 days of the judgment a quo was due to his error. The Court accepts this explanation for the lateness of the motion for leave. [ 10 ] That said, it is not sufficient that the lateness be excused for special leave to be granted. The petitioners must also show that the other criteria applicable for leave to appeal are satisfied. In the present case, the petitioners failed to convince us that the matter is one that ought to be submitted to the Court within the meaning of

article 26 C.C.P., and they have failed to demonstrate that an appeal would have a reasonable prospect of success. This suffices to dismiss the motion for special leave in the circumstances: see, e.g. , Dallaire v. RCM Modulaire inc ., 2006 QCCA 934 , para. [12] ; Ramsden v.

Arnault Thibault Cléroux , 2013 QCCA 457 , para. [3] . *** [ 11 ] The de bene esse motion for leave incorporates by reference much of the inscription in appeal in which, over 33 pages, the petitioners recount what they see as the reviewable errors in the trial judge’s decision to dismiss their action in defamation. [ 12 ] The judge held that, at this early stage of the proceedings, she was unable to conclude definitively that the respondents had not committed a fault and recognized that the petitioners’ action disclosed an “apparence de droit” (para. [40] of her reasons).

She nevertheless decided that the action in defamation as framed by the petitioners was improper as “an attempt to defeat the ends of justice/détournement des fins de la justice”, within the meaning of

article 54.1, para. 2 C.C.P., and dismissed it summarily. The petitioners argue that the decision to dismiss the action notwithstanding evidence of defamation was an error in law. We disagree. Articles 54.1 et seq . C.C.P. allow for the dismissal of an improper action in defamation even when that action appears to have colour of right: Acadia Subaru v. Michaud , 2011 QCCA 1037 , para. [60] . The petitioners have failed to show an error of law or an error of principle committed by the judge in this regard; on the contrary, she was careful to follow the jurisprudence of this Court on point, notably Cooperstock v.

United Air Lines Inc. , 2013 QCCA 1670 ; Développements Cartier Avenue inc . v. Dalla Riva , 2012 QCCA 431 ; and Acadia Subaru , supra . [ 13 ] In particular, her finding that the petitioners’ action restricted freedom of expression “in public debate/dans le contexte de débats publics”, again pursuant to

article 54.1, para. 2 C.C.P., has not been shown to be mistaken. Contrary to what the petitioners argue, the judge did not so decide simply because one of the respondents enjoys not-for-profit status. Instead, she reviewed the facts and held that the actions of the respondents were undertaken in connection with the defence of tenants’ rights generally, and with a view to disseminating information to low-income tenants in particular, in the public square (para. [55]). The fact that some of the information was relayed directly to certain of the appellants’ tenants has not been shown to impugn the public character of the debate within the meaning of

article 54.1 C.C.P. In sum, no palpable or overriding error or error of law has been shown in this regard. [ 14 ] The petitioners claim that the judge erred in fact by setting aside various exhibits they had submitted in Superior Court causing her to misapprehend the extent of the defamation they say that they have had to endure. The judge’s detailed account of the facts, in particular in paragraphs [12] to [28] of her reasons show this to be mistaken.

She had no obligation to account for every one of the many documents submitted for the court’s consideration in the text of her judgment. [ 15 ] No foundation has been shown for the argument that the judge granted “immunity” to the respondents for defaming the petitioners, or that she wrongly interpreted freedom of expression to be an “absolute” right.

On the contrary: the judge noted that the respondents were not free to defame the petitioners but that, on the facts, the action whereby they claimed over $5.6M in damages, solidarily, from the respondents was a procedural impropriety within the meaning ascribed to that term by the applicable jurisprudence. The judge decided that the true purpose of the action was not to obtain compensation for a civil wrong but to limit the respondents’ freedom of expression by way of intimidation (see in particular paras. [67] and [76]).

In the circumstances, this highly factual finding by the trial judge as to the purpose of the petitioners’ action, in the absence of a demonstrated palpable and overriding error, deserves deference on appeal. The petitioners have failed to disclose a plausible basis for the existence of such an error. [ 16 ] Having concluded that the action was what is often called a “strategic lawsuit against public participation/poursuite-bâillon”,

the judge held, showing the appropriate degree of caution, that if the matter proceeded to a final judgment on the merits the negative effects of silencing the respondents could not be remedied (para. [87]). No reviewable error has been shown in the judge’s decision that the dismissal of the action was the appropriate sanction for the abuse use of procedure in this case. [ 17 ] None of the other arguments raised in support of their appeal has merit. In sum, even if leave were granted, we are of the view that the appeal would have no reasonable chance of success.

FOR THE FOREGOING REASONS , the Court: [ 18 ] DISMISSES the de bene esse motion for leave to appeal, with costs; [ 19 ] GRANTS the motion to dismiss the appeal, with costs; [ 20 ] DISMISSES the appeal, with costs; [ 21 ] DISMISSES the motion to adduce new evidence, without costs. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. MANON SAVARD, J.A.