2022 QCCA 857, 2022 QCCA 857

Xu c. Tran 2022 QCCA 857 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-700062-219 ( 500-22-256493-191 ) MINUTES OF HEARING DATE: June 14, 2022 CORAM: THE HONOURABLE STÉPHANE SANSFAÇON, J.A. GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A. APPELLANT JIMMY JING XU Unrepresented Absent RESPONDENT COUNSEL CHUNG QUAI TRAN Mtre Guy Audet ( Guy Audet Avocats ) Absent On appeal from a judgment rendered on September 23, 2021 by the Honourable Emmanuelle Saucier of the Court of Québec , District of Montreal .

DESCRIPTION: Application to dismiss an appeal and to obtain a suretyship (Articles 364 and 365 C.C.P .). Clerk at the hearing : Ariane Simard-Trudel Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing held on June 13th, 2022. The parties were excused from appearing in Court. BY THE COURT: See judgement page 3.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT [ 1 ] The respondent seeks the dismissal of the appeal from a judgment of the Court of Québec, District of Montreal (the Honourable Emmanuelle Saucier), which granted the respondent’s application, resiliated the lease between the parties and condemned the appellant, after judicial compensation, to pay the respondent $57,996.91 with interest and the legal costs. The respondent submits that the appeal has no reasonable chance of success. [ 2 ] In a clear and concise judgment, the trial judge set out the reasons that led to her findings.

In his notice of appeal, the appellant submits that the judge erred at each step of her analysis, but he does not point to any palpable and overriding error, simply alleging that the trial judge improperly assessed the evidence as a whole and did not correctly gauge the parties’ credibility. The appellant, therefore, is asking this Court to reconsider all of the testimony and exhibits and to substitute its opinion for that of the trial judge.

That is not the role of the Court. [ 3 ] Moreover, the notice of appeal contains serious allegations of bias on the part of the trial judge, who, it is claimed, showed bias in favour of the respondent, to the detriment of the appellant, throughout the hearing and in her reasons. [ 4 ] The Supreme Court has repeatedly recognized that there is a strong presumption of impartiality and integrity on the part of judges and their judgments [1] and that this presumption can be displaced only in exceptional circumstances based on concrete and cogent evidence. [2] In the matter at hand, the appellant has submitted nothing more than allegations that are as general as they are vague and that do not even suggest that the judge acted in anything other than an impartial manner. [ 5 ] As our colleague, Ruel, J.A., noted in Droit de la famille — 22283 ( 2022 QCCA 276 ): [ translation ] [13] As a general rule, the party alleging bias on the part of the judge due to the judge’s attitude or conduct at the hearing must raise the issue at the earliest practicable opportunity, in first instance ( Bérubé c.

Loto-Québec , 2012 QCCA 1289 , para. 11 ; Droit de la famille — 17739 , 2017 QCCA 629 , para. 20 and footnote 3; Boyer c. Loto-Québec , 2017 QCCA 951 , para. 5 , application for leave to appeal to the Supreme Court dismissed, December 14, 2017, No. 37758; Droit de la famille — 21138 , 2021 QCCA 231 , para. 44 ; Pelletier c. Demers , 2021 QCCA 252 , para. 21 ). The judge can then, if required, take the necessary corrective measures, which may include his or her recusation ( Bernier c. R. , 2021 QCCA 1010 , para. 13 ). [13] En règle générale, la

partie qui allègue la partialité du juge en raison de son attitude ou comportement à l’audience doit le soulever à la première occasion, en première instance ( Bérubé c. Loto-Québec , 2012 QCCA 1289 , paragr. 11 ; Droit de la famille — 17739 , 2017 QCCA 629 , paragr. 20 et note infrapaginale 3; Boyer c. Loto-Québec , 2017 QCCA 951 , paragr. 5 , demande d’autorisation d’appel à la Cour suprême rejetée, 14 décembre 2017, n o 37758; Droit de la famille — 21138 , 2021 QCCA 231 , paragr. 44 ; Pelletier c. Demers , 2021 QCCA 252 , paragr. 21 ).

Le juge peut alors, si requis, apporter les correctifs nécessaires, ce qui peut inclure sa récusation ( Bernier c. R. , 2021 QCCA 1010 , paragr. 13 ). [ 6 ] In the present case, the appellant did not raise his grievances before the trial judge. [ 7 ] We are thus of the opinion that the appeal has no reasonable chance of success and that the motion to dismiss the appeal should therefore be granted, but without legal costs in light of the fact it was filed after the expiry of the prescribed time limit.

FOR THESE REASONS, THE COURT: [ 8 ] GRANTS the motion to dismiss the appeal, without legal costs; [ 9 ] DISMISSES the appeal, without legal costs. STÉPHANE SANSFAÇON, J.A.

GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A.