2023 QCCA 491, 2023 QCCA 491

Blumenthal c. Porath 2023 QCCA 491 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030447-239 ( 500-17-109055-197 ) MINUTES OF HEARING DATE: April 14, 2023 THE HONOURABLE BENOÎT MOORE, J.A. APPLICANT MARK BLUMENTHAL ABSENT AND UNREPRESENTED RESPONDENTS COUNSEL ELLIOT PORATH Mtre SÉBASTIEN DUBOIS ( Greenspoon Winikoff ) Absent 9417508 CANADA INC. LARRY SOUSSAN Mtre AVA LIAGHATI ( Renno Vathilakis ) Absent LINDA FRAZER LFRASERNOTAIRE INC. Mtre CAMILLE HARVEY ( Donati Maisonneuve ) Absent Y DELTA INTERACTIVE CORP. Mtre NATHALIE BOULANGER ( Langlois avocats ) Absent

REGISTRAR FOR THE LAND REGISTRY OFFICE OF THE REGISTRATION DIVISION OF M ONTREAL ABSENT AND UNREPRESENTED DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on February 8 th , 2023 by the Honourable Gregory Moore of the Superior Court , District of Montreal (Articles 31 and 32 C.C.P. ). Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING Continuation of the hearing held on April 12, 2023. The parties were excused from appearing in Court. BY THE JUDGE : Judgment – see page 4.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] The applicant wishes to appeal from a Superior Court judgment rendered on February 8, 2023 (the Honourable Gregory Moore), which, as case management measures, struck paragraphs 1 to 25 and 37 to 103 of his application for the disqualification of the firm Greenspoon Winikoff, counsel for respondent Elliot Porath. [ 2 ] The judgment was rendered in connection with the hearing that had been scheduled by the Honourable Christian J. Brossard, J.S.C. on October 18, 2022, with a view to ruling on the applicant’s application for disqualification.

The morning of the hearing, the applicant sent an email requesting a postponement of the hearing due to his ill health. The judgment under appeal granted the postponement, but the judge, citing the principle of proportionality and wishing to focus the debate on what is strictly relevant and necessary for purposes of the application for disqualification, used his power under

article 158 of the Code of Civil Procedure to strike the allegations pertaining to the merits of the case as well as those relating to potential applications for a declaration of abuse or for damages. On this latter point, the judge rightly noted that, in paragraph 100 of his application for disqualification, the applicant announced such an action, in separate proceedings he intends to institute.

The judge added that the application for disqualification will have to proceed in a peremptory manner at the next hearing, and he noted that the applicant had been absent during the previous case management hearing held before Justice Brossard.

Lastly, the judgment under appeal modified the case management measures that had been established at the previous hearing, so that the hearing on the merits can take place in a single day. [ 3 ] In support of his application for leave to appeal, the applicant submits that the judge struck allegations that are relevant to his application for disqualification, notwithstanding that he was not seized of an application for such striking of allegations, and that he did so in the applicant’s absence.

He further argues that the judge erred in revising the judgment rendered by Justice Brossard. [ 4 ] The question arises whether the present application for leave to appeal is governed by

article 31 or 32 C.C.P. The applicant

submits that even if the judge relied on

article 158 C.C.P. , given that the striking of allegations prevents him from raising certain grounds warranting the disqualification of the respondent’s lawyers, including the fact that Mtre Greenspoon will be called upon to testify, the judgment must be likened to a judgment that allows an objection to evidence. Admittedly, the case law, which notes that it is the nature of a decision, rather than its context, that is important, [1] routinely makes such an equivalence, particularly where the modifications include the removal of exhibits. [2] The respondent is of the view that the decision is a case management measure governed by

article 32 C.C.P. Regardless of the answer to this question, I am of the opinion that leave should be denied. [ 5 ] First, the argument regarding the revision of Justice Brossard’s case management decision does not withstand analysis because he had explicitly provided for the possibility that the judge seized of the application, which was the situation of Justice Gregory Moore, could modify these measures. [ 6 ] Moreover, the applicant has not convinced me that the judgment under appeal causes him prejudice and will limit his arguments regarding the disqualification of the firm Greenspoon Winikoff.

The judge, who noted that the bulk of the application pertained to matters relevant for other purposes, excised them in order to properly focus the debate. I see nothing suggesting that this finding regarding the relevance of the allegations is unreasonable or patently wrong. The judge also based his decision on the fact that the case must move forward and that the applicant, who was absent during the case management conference before Justice Brossard and who did not attend before him, even if only by telephone, must actively participate in the case.

The case management powers the judge referred to allowed him to consider all of these circumstances, which could warrant the measures intended to move the case forward. In this context, those measures do not seem to have been unreasonable. The application for leave to appeal should therefore be dismissed. [ 7 ] In closing, I would add that it is both in the interests of the parties and in the interests of justice that the case move forward. The parties must cooperate to that effect. FOR THESE REASONS, THE UNDERSIGNED: [ 8 ] DISMISSES the application for leave to appeal, with legal costs. BENOÎT MOORE, J.A.