2019 QCCA 1160, 2019 QCCA 1160

Droit de la famille — 191264 2019 QCCA 1160 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028370-195 (500-12-332049-166) DATE: 28 JUNE 2019 BEFORE THE HONOURABLE PATRICK HEALY, J.A. S. R. PETITIONER - Defendant v. C. M. RESPONDENT - Plaintiff JUDGMENT [ 1 ] Before me is a motion for leave to appeal from an order rendered by the Superior Court on 14 May 2019 (Honourable Robert Castiglio, J.S.C.) that required the parties to notify each other by technological means in proceedings that continue between them in Quebec. This order was made in accordance with

article 133 C.C.P. Accordingly, the order allowed the respondent to notify the applicant by electronic mail. The same judgment also dismissed the applicant’s motion for revocation of a previous judgment that allowed notification by electronic mail. The judgment that is the subject of the present motion concerns case management. [1] Thus it can only be appealed with leave if it appears unreasonable in light of the guiding principles of procedure. [2] [ 2 ] The parties have been involved in divorce proceedings in Quebec and Switzerland since 2015.

The Superior Court of Quebec has declined to suspend proceedings before it on the basis of lis pendens and forum non conveniens. [3] This Court affirmed that judgment. [4] The proceedings continue in Quebec. [ 3 ] The applicant is self-represented, resides in Switzerland and alleges he must frequently travel for work. He alleges that receiving electronic notification of proceedings imposes an unreasonable burden upon him and causes irremediable prejudice. He further alleges that notification by electronic mail is not an accepted method of notification in Switzerland.

As a result, he alleges, a decision in Quebec might not be recognized there. Obviously I cannot take judicial notice of Swiss law in private international law or other matters. Swiss law must be proved for it to be considered in any proceedings in Quebec. For present purposes, however, these issues are not material. [ 4 ] He also states that

article 494 C.C.P. provides that international notification must be made in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Convention”) in

Schedule 1 of the C.C.P. Canada and Switzerland are parties to the Convention and

article 494 C.C.P. provides explicitly that the Convention has the force of law in Quebec. [ 5 ] As noted, the judgment that is the subject of this motion dismissed the petitioner’s application to revoke an earlier judgment. Despite the petitioner’s stress on this question, the judge below rightly concluded that the earlier judgment had no effect after the hearing before him. Accordingly, nothing more need be said of this question. [ 6 ] The judge concluded that an order for notification by electronic mail in these proceedings, in accordance with

article 133 C.C.P., was consistent with the guiding principles of civil procedure, notably the proper administration of justice and proportionality. But these proceedings are matters of private international law and the judgment makes no mention of

article 494 C.C.P. or the Convention. The judgment thus omits any determination whether an order under

article 133 C.C.P. is consistent or inconsistent with

article 494 C.C.P. and the Convention. The judgment affords no basis on which to assess whether the order for notification by electronic mail complies with applicable legal requirements. [ 7 ] The petitioner has expressly withdrawn consent to notification by electronic mail and challenges the validity of the order by the judge. There might be several reasons for which the petitioner now takes this position.

It remains, however, that if the order is inconsistent with applicable legal requirements it must be unreasonable with respect to the guiding principles of civil procedure. [ 8 ] It is imperative that procedures for notification in matters of private international law must comply with legal requirements applicable to the parties. There is nothing in the judgment a quo that can support a conclusion whether an order for notification by electronic mail in these proceedings is consistent, or inconsistent, with applicable requirements. If these proceedings were entirely domestic, the order could not be impugned.

But they are not and in the absence of any consideration of the effect of

article 494 C.C.P. it

cannot be assumed that the order is valid. [ 9 ] Several decisions in the Court of Quebec and the Superior Court have considered, somewhat inconsistently, the relations between

article 494 C.C.P. and the guiding principles of procedure. It appears that this court has not previously considered this question or more precisely the effect of

article 494 on any order under

article 133 C.C.P. This effect will vary, of course, because the applicable principles are not the same between all states. The Convention was concluded in 1965 and the pace of change in means of communication has increased profoundly since then. It is thus a matter of general interest for the Court to examine how the courts of Quebec should approach any case in which an order proposed under

article 133 C.C.P. might be affected by the provisions of

article 494 C.C.P.

FOR THESE REASONS, THE UNDERSIGNED : [ 10 ] GRANTS the application for leave to appeal; [ 11 ] AUTHORIZES the applicant to file an appeal against the judgment; [ 12 ] SUSPENDS electronic notification to the applicant pending the outcome of the appeal; [ 13 ] ORDERS that further notification between the parties be made in accordance with the Convention; [ 14 ] PLACES the case on the role of November 15, 2019 in room Pierre-Basile-Mignault at 9:30am, for a 60 minutes hearing; [ 15 ] ORDERS the appellant, after having notified a copy upon the respondent, to file in the Office of the Court, no later than August 7, 2019 five copies of a written argument not exceeding 10 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 16 ] ORDERS the respondent, after having notified a copy upon the appellant, to file in the Office of the Court, no later than September 18, 2019 , five copies of a written argument not exceeding 10 pages and of his supplementary documents; [ 17 ] DIRECTS the parties’ attention to

section 376 C.C.P. and

article 55 of the Civil Practice Regulation, which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format . The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements ) apply to memoranda with the necessary adaptations. [ 18 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities. Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches. The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted; [ 19 ] THE WHOLE, legal costs to follow the outcome of the appeal .

PATRICK HEALY, J.A. S. R. UNREPRESENTED Petitioner Mtre Muriel Librati TEITELBAUM LIBRATI For respondent Date of hearing: 14 June 2019