2024 QCCA 75, 2024 QCCA 75

T.B. c. D.M. 2024 QCCA 75 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030786-230 (550-17-013053-234) DATE: January 19, 2024 BEFORE THE HONOURABLE MARIE-FRANCE BICH, J.A. T. B. APPLICANT – Defendant v. D. M. RESPONDENT – Plaintiff and R. M. O. M. PUBLIC Curator of Quebec IMPLEADED PARTIES – Impleaded parties JUDGMENT [ 1 ] The applicant seeks leave to appeal a judgment rendered on August 3, 2023, by the Superior Court, District of Gatineau (the Honourable Mr.

Justice Dominique Goulet), and rectified (more on that later) on October 26, 2023, dismissing his declinatory exception. * * [ 2 ] Respondent D. M. (or “Ms. D.”) is the daughter of the impleaded party R. M. (or “Ms. R.” [1] ). In August 2023, after a series of incidents and numerous difficulties in gaining access to her mother (who lives with Alzheimer’s disease), she instituted (before the Superior Court, District of Gatineau) self-styled habeas corpus proceedings against applicant B. (who is Ms.

R.’s second husband), also seeking various safeguard and provisional orders to be in force until the institution of a tutorship. More exactly, the respondent’s originating application was filed under the following title: Demande introductive d’instance en habeas corpus, en administration provisoire pour la personne concernée et en demande d’accès aux dossiers médicaux. Even in its re-re-amended version, it does not contain formal conclusions related to the institution of a tutorship or other regime of protection. [ 3 ] On August 3, 2023, Justice Goulet (the “Judge”) heard the parties. Mr.

B. (who was not represented by counsel at the time) raised a declinatory exception, contesting the jurisdiction of the Superior Court in favour of the competent authorities of Ontario, where, according to his submissions, he and his wife are actually domiciled. He testified to that effect and submitted documentary evidence in support of his allegations, later presenting his arguments (the whole as shown by the transcript of the stenographic notes of the hearing [2] ) .

He explained that he and his wife do occasionally reside in Quebec, in their country cottage in Town A, where, however, they spend no more than 30% of their time. Their principal establishment is indeed located in Town B. Ms. D. also testified, as well as Mr. O. M. (a relative of Ms. R. [3] ). According to them, Mr. B. and his wife do reside, primarily, in Town A, Quebec, and maintain their house in Town B for convenience and fiscal purposes only. [ 4 ] By judgment rendered orally at the hearing, in the presence of Mr. B. and Ms.

D., the Judge concluded from this contradictory evidence that, on a balance of probabilities, Ms. R. is, in fact, domiciled in Town A, Quebec, and, therefore, that the Superior Court of said province has jurisdiction over the matter. Here is the transcript of his judgment:

Section 44 of the Code of Civil Procedure states that the Court having jurisdiction in a matter like the one under study is the Court of the domicile or residence of the person of full age concerned. In accordance with

section 75 of the Quebec Civil Code , the domicile of a person is at the place of her principal establishment and, as to the residence, it is the place where she ordinarily resides. Having heard the testimonies today, I am of the opinion that, on balance of probabilities, the principal establishment or the principal residence of Mme R. – for the purpose of recording, I will use her first name – is at [...], Town A. This is her main address or her main residence and this is where she wanted to live. Therefore, this Superior Court has jurisdiction. [4]

[ 5 ] The Judge also heard the parties on the provisional measures and rendered various orders on the matter, including one that granted temporary custody of Ms. R. to her daughter and provided for her medical and psychosocial evaluation. [ 6 ] Unfortunately, neither the minutes of the hearing of August 3, 2023, nor the written version of the judgment sent to the parties refer in any way to the declinatory exception, [5] the dismissal thereof and the recognition of the jurisdiction of the Superior Court of Quebec. [ 7 ] This mistake generated much confusion.

Upon receiving the minutes of the hearing and its accompanying order, Mr. B. apparently concluded that judgment had not been rendered on the declinatory exception. Consequently, having decided to retain Mtre Michel Lewis as counsel, he did not or could not properly apprise him of the situation. Mtre Lewis thereafter filed another declinatory exception, which was contested on the basis of res judicata . [6] A date was set for the hearing of the matter. [7] Finally, on October 18, 2023, counsel for Ms.

D. wrote to the Judge in order to ask that the minutes of the hearing of August 3, 2023, be corrected as to reflect what had actually happened on that day i.e. that judgment had, in fact, been rendered on the declinatory exception brought by Mr.

B.. [ 8 ] On October 26, 2023, the Judge, apparently on the basis of art. 338 C.C.P., rendered the following “jugement sur demande de rectification de jugement”: [1] CONSIDÉRANT l’audition du 3 août 2023 dans la présente affaire; [2] CONSIDÉRANT que durant l’audition, le défendeur, monsieur B…, a soulevé l’absence de compétence juridictionnelle de la Cour supérieure du district de Gatineau; [3] CONSIDÉRANT que lors du prononcé d’un jugement rendu séance tenante, le 3 août 2023, le Tribunal a statué sur la question juridictionnelle; [4] CONSIDÉRANT que le Tribunal a décidé que la Cour supérieure du district de Gatineau était compétente à entendre le dossier; [5] CONSIDÉRANT qu’il y a lieu de rectifier d’office la conclusion du jugement rendu le 3 août 2023; POUR CES MOTIFS, LE TRIBUNAL RECTIFIE LE JUGEMENT POUR QU’IL SE LISE COMME SUIT : […] [ 9 ] He then added the following conclusion to the written version of his judgment of August 3: DECLARES that the Superior Court of Gatineau has jurisdiction in accordance with s. 44 of the Code of Civil Procedure . [ 10 ] Notice of this rectified judgment, dated October 31, 2023, was sent to the parties by the Superior Court’s office (art. 335 C.C.P. ). [ 11 ] On November 17, 2023, applicant B., through counsel, filed a notice of appeal and an application for leave to appeal the August 3 judgment, as rectified (art. 31 C.C.P. ), arguing that the Judge erred in both fact and law in dismissing his declinatory exception, as the testimonial and documentary evidence clearly established that he and his wife are domiciled in Town B, Ontario, and not Town A, Quebec, where they reside only occasionally, while at their country cottage. [ 12 ] According to respondent D., the application for leave to appeal was not filed within the 5-day time limit prescribed by art. 361 para. 2 C.C.P. (which, she submits, applies here in view of the nature of the proceeding instituted against the applicant).

Whatever the starting point of this time limit (the date of the oral judgment or that of the notice of the rectified judgment), the respondent’s application, filed on November 27, was late in both cases and should be dismissed for that reason. If art. 360 para. 2 C.C.P. and its 30-day time limit were to apply, however, the same conclusion would follow. Indeed, judgment was rendered orally at the hearing of August 3, 2023, in the presence of applicant B., and the time limit for appealing ran as of that date and not that of the so-called “rectified” judgment.

There was in fact no clerical error of any kind that could allow for rectification pursuant to art. 338 para. 1 C.C.P. The judgment itself, as rendered at the hearing, contained no such error and did not have to be corrected (although its written version as well as the minutes of the hearing were inaccurate). And if rectification was not possible by virtue of the first paragraph of art. 338, then the third paragraph of this provision did not apply either and did not extend or revive the time limit for the appeal.

The application for leave to appeal, having been filed more than 30 days after the August 3 judgment, was late and should therefore be dismissed. [ 13 ] Regardless of the question of the time limit for the appeal, the respondent subsidiarily argues that the application for leave to appeal should be dismissed as it has no reasonable chances of success. It indeed raises mere questions of fact, the applicant simply disagreeing with the Judge’s assessment of the contradictory evidence led by the parties and the credibility of the various witnesses, without pointing out any palpable and overriding error.

This cannot justify leave to be granted. * * [ 14 ] For the following reasons, leave shall not be granted. * * [ 15 ] Was leave to appeal sought in due time? The circumstances are certainly unusual. The Judge’s oral judgment of August 3, 2023, as rendered on that day at the hearing, expressly decided that the Superior Court of Quebec has full jurisdiction to rule on the dispute between the parties.

As we have seen earlier ( supra , para. [4]), the judgment was short, but clear and it explicitly recognized the jurisdiction of the Superior Court, thus dismissing the declinatory exception brought by the applicant. [ 16 ] This oral judgment was complete and contained no error of the sort envisioned by art. 338 para. 1 C.C.P. :

338. Le jugement entaché d’une erreur d’écriture ou de calcul ou d’une autre erreur matérielle, y compris une erreur dans la désignation d’un bien, peut être rectifié par celui qui l’a rendu; il en est de même du jugement qui, par suite d’une inadvertance manifeste, accorde plus qu’il n’était demandé ou omet de prononcer sur une

partie de la demande. 338. A judgment containing an error in writing or calculation, or any other clerical error, including an error in the description of property, may be corrected by the person who rendered it. The same applies to a judgment which, by obvious inadvertence, grants more than was sought or does not rule on part of the application. […] […] Le délai d’appel ou d’exécution du jugement rectifié ne court que depuis la date de la rectification lorsque celle-ci porte sur le dispositif.

If the correction is to the operative part of the judgment, the time limits for appeal and execution begin to run on the date of the correction . [ 17 ] It is the written version of the judgment as well as the minutes of the hearing that were lacking in that they did not properly reflect what happened during the hearing and failed to record the judgment rendered, as per art. 334 para. 2 C.C.P .: 334. […] 334. […] Le jugement rendu à l’audience, qu’il s’agisse d’un jugement au fond ou rendu en cours d’instance, est constaté par l’inscription de la décision et de ses principaux considérants au procès-verbal attesté par celui qui l’a rendu.

Sur demande d’une partie, ce jugement peut aussi être constaté par la transcription de l’enregistrement et par la signature de celui qui l’a rendu. S’il y a transcription, le dispositif du jugement ne peut être modifié, mais le juge peut en corriger la forme. A judgment rendered at the hearing, whether a judgment on the merits or a judgment in the course of a proceeding, is evidenced by entry of the decision and its main whereas clauses in the minutes, attested by the person who rendered the judgment.

On a party’s request, the judgment may also be evidenced by the transcript of the recording, signed by the person who rendered the judgment. The operative part of the judgment cannot be modified in such a transcript but the judge may correct its form. […] […] [ 18 ] What are the consequences of not complying with the requirements of this provision, as far as the right of appeal is concerned? [ 19 ] The answer is to be found in L.M. c.

Commission des normes, de l'équité, de la santé et de la sécurité du travail — Indemnisation des victimes d'actes criminels (IVAC) , [8] which dealt with a similar situation and raised a similar question: [9] [1] L’intimée demande le rejet de l’appel, invoquant que l’appel a été entrepris hors délai et qu’il ne présente aucune chance raisonnable de succès. [2] L’intimée soutient que le jugement entrepris aurait été prononcé oralement, le 4 septembre 2018.

Dès lors, le point de départ du délai d’appel serait la date du prononcé du jugement, conformément à l’article 360 C.p.c. et à la jurisprudence de la Cour ( Martineau c. Ouellet , 2016 QCCA 142 , par. 13 ; Fédération des producteurs acéricoles du Québec c. St-Germain , 2019 QCCA 35 , par. 9 ). [3] Or, le procès-verbal de l’audience du 4 septembre 2018 est muet quant au prononcé d’un jugement à cette date.

Tout au plus, retrouvons-nous la mention qu’un « jugement formel sera déposé ». [4] Pour conclure qu’un jugement a été rendu oralement au sens de l’article 360 C.p.c. , il faut que le jugement soit« constaté par l’inscription de la décision et de ses principaux considérants au procès-verbal attesté par celui qui l’a rendu. » (334 C.p.c. ). [5] Le 16 octobre 2018, le juge a rendu un jugement comportant des conclusions précises, accueillant la requête en irrecevabilité et rejetant la demande introductive d’instance, sans frais, quoique le jugement soit intitulé « MOTIFS DU JUGEMENT RENDU ORALEMENT LE 4 SEPTEMBRE 2018 ».

Il est fort probable que l’imbroglio découle de cette façon de faire. [6] L’avis de jugement étant daté du 29 octobre 2018, l’appel a été régulièrement formé par le dépôt d’une déclaration d’appel, le 5 novembre 2018. [ 20 ] A judgment of the Superior Court (or the Court of Québec) which does not appear in the minutes of the hearing nor in a transcription thereof signed by the judge or in a written version of the judgment (also signed by the judge) can thus be validly appealed as from the moment that the requirements of art. 334 para. 2 C.C.P. are fulfilled (it is not necessary to decide whether the right of appeal may be exercised before those formalities are carried out, the question raised by the present case being that of the lateness of the appeal).

As in L.M. , the right to appeal the Judge’s dismissal of the declinatory exception could thus be exercised by applicant B. as of the date of the notice of the written judgment containing the appropriate conclusion, that is to say as of October 31, 2023. [10] [ 21 ] That being said, a second question arises: was the time limit for the exercise of this right of appeal governed by art. 360 para. 1 (30 days) or 361 para. 2 C.C.P. (5 days):

360. La

partie qui entend porter un jugement en appel est tenue de déposer sa déclaration d’appel avec, s’il y a lieu, sa demande de permission d’appeler, dans les 30 jours de la date de l’avis du jugement ou de la date du jugement si celui-ci a été rendu à l’audience . 360. A party intending to appeal a judgment is required to file a notice of appeal within 30 days after the date of the notice of judgment or after the date of the judgment if it was rendered at the hearing .

If leave to appeal is required, the notice of appeal must be filed together with an application for leave to appeal. […] […] 361. […] 361. […] Ce délai est toutefois de cinq jours lorsqu’il s’agit de s’opposer à la libération d’une personne ou de faire appel du jugement qui accueille une demande d’autorisation touchant l’intégrité d’une personne, ordonne la garde en vue de soumettre une personne à une évaluation psychiatrique ou à la suite d’une telle évaluation.

The time limit for opposing a person’s release or appealing a judgment granting an application for authorization relating to personal integrity or ordering confinement for or after a psychiatric assessment is five days . [Emphasis added] [ 22 ] Applicant’s counsel is of the view that the declinatory exception must be distinguished from the rest of the proceeding ( habeas corpus , and safeguard and provisional orders), as jurisdiction is a prerequisite for rendering orders of that kind.

The right to appeal the dismissal of a declinatory exception must thus be exercised pursuant to art. 360 para. 1 C.C.P. and, in the present case, it was exercised in due time. Respondent’s counsel is of the opposite view and submits that the nature of the proceeding as a whole determines the right to appeal the dismissal of the declinatory exception, which is but an incident in those proceedings, and that the applicable time limit is that of art. 361 para. 2 C.C.P.

The applicant filed his notice of appeal and application for leave to appeal on November 27, 2023, after the 5- day time limit had expired, and it should be dismissed. [ 23 ] The respondent’s proposition is interesting as it is consistent with the urgency characterizing the various matters listed in art. 361 para. 2 C.C.P. , that are to be debated at the earliest opportunity and decided in priority. Likewise, appeals are to be dealt with the same celerity: appeal proceedings must be filed within a very short time (5 days) and they shall also be heard in priority (art. 383 C.C.P. ).

Judgments deciding declinatory exceptions (or other incidental proceedings) raised in such context should thus be appealed in the same manner, within the same time limit as the orders themselves, and the appeal, if leave is granted, be heard promptly pursuant to art. 383 C.C.P.

Otherwise, the legislator's intention, which is to ensure the fast tracking of habeas corpus proceedings or proceedings regarding the integrity of a person or their confinement, would be neutralized. [ 24 ] However, as interesting as it is, the respondent’s proposition cannot be applied to the present case, as the originating application, even in its re-re-amended form and despite its title, does not really qualify as habeas corpus , does not relate to personal integrity as this expression must be understood for the purposes of art. 361 para. 2 C.C.P. , [11] and does not seek the confinement of a person ( i.e. , Ms.

R.) for psychiatric assessment or after such assessment (“ garde en vue de soumettre une personne à une évaluation psychiatrique ou à la suite d’une telle évaluation ”). [12] [ 25 ] Consequently, considering the Court’s teachings in L.M. , [13] art. 360 C.C.P. applies to the applicant’s right of appeal, which was exercised within the proper time limit. [ 26 ] Should leave be granted? * * [ 27 ] Should leave to appeal be granted? Mr. B.'s application for leave to appeal is governed by art. 31 C.C.P. , which reads as follows: 31.

Le jugement de la Cour supérieure ou de la Cour du Québec rendu en cours d’instance, y compris pendant l’instruction, peut faire l’objet d’un appel de plein droit s’il rejette une objection à la preuve fondée sur le devoir de discrétion du fonctionnaire de l’État, sur le respect du secret professionnel ou sur la protection de la confidentialité d’une source journalistique. 31.

A judgment of the Superior Court or the Court of Québec rendered in the course of a proceeding, including during a trial, is appealable as of right if it disallows an objection to evidence based on the duty of discretion of public servants, on professional secrecy or on the protection of the confidentiality of a journalistic source. Il peut également faire l’objet d’un appel sur permission d’un juge de la Cour d’appel, si ce dernier estime que ce jugement décide en

partie du litige ou cause un préjudice irrémédiable à une

partie , y compris s’il accueille une objection à la preuve. Such a judgment may be appealed with leave of a judge of the Court of Appeal if the judge considers that it determines part of the dispute or causes irremediable injury to a party , including if it allows an objection to evidence.

Le jugement doit être porté en appel sans délai. L’appel ne suspend pas l’instance à moins qu’un juge d’appel ne l’ordonne; cependant, si le jugement est rendu en cours d’instruction, l’appel ne suspend pas celle-ci; le jugement au fond ne peut toutefois être rendu ou, le cas échéant, la preuve concernée entendue avant la décision de la cour. The judgment must be appealed without delay. The appeal does not stay the proceeding unless a judge of the Court of Appeal so orders.

If the judgment was rendered in the course of the trial, the appeal does not stay the trial; however, judgment on the merits cannot be rendered nor, if applicable, the evidence concerned heard until the decision on the appeal is rendered. Tout autre jugement rendu en cours d’instruction, à l’exception de celui qui accueille une objection à la preuve, ne peut être mis en question que sur l’appel du jugement au fond.

Any other judgment rendered in the course of a trial, except one that allows an objection to evidence, may only be challenged on an appeal against the judgment on the merits. [Emphasis added] [ 28 ] To the conditions set out in para. 2 above, the case law adds that the proposed appeal must also satisfy the interests of justice, which entails that it must comply with the rule of proportionality, while favouring the sound management of judicial resources (art. 9 and 18 C.C.P. ) .

Furthermore, it must have reasonable chances of success: as a matter of principle, the interests of justice are not served by allowing an appeal that is bound to fail. [14] [ 29 ] Does Mr.

B.’s application fulfill these conditions, as interpreted and applied by a long line of cases? [ 30 ] The application for leave to appeal satisfies the first condition in that the judgment dismissing the declinatory exception is likely to cause irreparable harm to the proceeding (and to the applicant), as it relates to a question of jurisdiction of the Superior Court of Quebec over the dispute between the parties – or lack thereof. [15] [ 31 ] The grounds of appeal raised by the applicant, however, are such that, considering the appellate standard of review, they have no reasonable chances of success, hence granting leave to appeal would not be in the interests of justice. [ 32 ] The dispute , which relates to the respective jurisdictions of the Quebec or Ontario courts, must be resolved in light of the rules of private international law, as enshrined in the Civil Code of Québec (see art. 3077 para. 1 C.C.Q. ).

That being the case, the Judge, in his judgment, should have relied on art. 3141 C.C.Q. , instead of art. 44 C.C.P. (which applies when the choice of a judicial district is at issue, within the boundaries of Quebec). This error, however, is without consequence, since the Judge concluded that, as a matter of fact , Ms. R. is indeed domiciled in Quebec, her principal establishment, within the meaning of art. 75 C.C.Q. , being the Town A cottage (in Quebec) and not the Town B house (in Ontario).

Pursuant to art. 3141 C.C.Q. , “Québec authorities have jurisdiction to hear personal actions of an extrapatrimonial and family nature when one of the persons concerned is domiciled in Québec” (a domicile which is that of art. 75 C.C.Q. ), and, according to the judgment, it is precisely the case of Ms. R.. [ 33 ] Applicant B.’s proposed appeal is entirely focused on that conclusion and solely raises questions of fact or, perhaps, questions of mixed law and fact (as the Judge applied art. 75 C.C.Q. and its concept of “principal establishment” to the facts).

Essentially, the applicant criticizes the Judge's assessment and weighing of the evidence and wishes to be given the opportunity to convince the Court otherwise. [ 34 ] Obviously, the Judge did not believe the applicant, who testified that he and his wife resided in Quebec 30% of their time only and otherwise resided in Town B, which was their domicile. Neither did the Judge give much credence to the documents filed by the applicant (Ms. R.’s health insurance card, driver's license, hospital card, check from the Canada Revenue Agency, wedding certificate) indicating that his wife has an address in Town B.

Although the judgment is not very long, reading the testimony of Mr.

B. and those of the other witnesses (the full transcription of which was annexed to the application for leave to appeal [16] ) shows why the Judge came to this conclusion, which is amply supported by the evidence as a whole. [ 35 ] The applicable standard of appellate review in matters of factual assessment, and the more so when credibility is at stake (as was the case here), is that of the “palpable and overriding error,” which is both deferential and exacting : [17] it is not a needle in a haystack, as the metaphor would have it, but a beam in the eye; it must be obvious and, therefore, “identifiable with great economy of means.” [18] As Gascon, J., wrote in Salomon v.

Matte-Thompson , “[t]he fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made […].” [19] The same exacting standard applies to questions of mixed fact and law. [20] [ 36 ] The applicant failed to point out any such palpable and overriding error in the judgment he seeks to appeal. Except to insist that the judgment is flawed and that his version of the facts should have been accepted, the applicant does not identify the error(

s) that the Judge possibly made in assessing the evidence, including the credibility of the witnesses, nor does he explain how the Judge misapprehended or misapplied the rules governing domicile. More to the point, he does not demonstrate, if only prima facie , that these are questions which deserve to be brought to the attention of the Court or that would justify the Court examining the file further. Basically, the applicant disagrees with the Judge and asks the Court to review and reassess the evidence in his favour. This is not the role of a court of appeal, whose duty is not to retry case.

As the Supreme Court of Canada recently wrote, “an appeal is not a litigant’s opportunity for a ‘second kick at the can’ […]”. [21] The appeal having no reasonable chance of success in that context, leave shall not be granted. FOR THE ABOVE-MENTIONED REASONS, THE UNDERSIGNED: [ 37 ] DISMISSES the application for leave to appeal, with legal costs.

MARIE-FRANCE BICH, J.A. Mtre Michel Lewis MICHEL LEWIS AVOCAT For the applicant Mtre Sylvie Labbé NOËL & ASSOCIÉS For the respondent Date of hearing: January 10, 2024