2014 QCCA 487, 2014 QCCA 487

Bardis c. Hache 2014 QCCA 487 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500-09-024275-141 (500-17-074706-121) MINUTES OF THE HEARING DATE: March 12, 2014 THE HONOURABLE MR. JUSTICE NICHOLAS KASIRER, J.A. PETITIONER GEORGE BARDIS In person RESPONDENTS COUNCEL NORMAND HACHE JEAN-FRANÇOIS DOLBEC FRANCE DULUDE Mtre Caroline Tremblay GILBERT SIMARD TREMBLAY MOTION FOR LEAVE TO APPEAL THE JUDGMENT OF SUPERIOR COURT Clerk: Asma Berrak Court Room: RC.18

HEARING 10:53: Beginning of the hearing. 10:54: Submission by Mr. Bardis. 11:01: Suspension of hearing. 11:19: Resumption of hearing. 11:19: Submission by Mr. Bardis. 11:44: Submission by Mtre Tremblay. 12:07: Reply by Mr. Bardis. 12:21: Suspension of hearing. Judgment will be rendered at 4 p.m. The judge dispenses the parties for attendance. 16:08: Resumption of hearing. 16:09: Judgment-see page 3. 16:09: Conclusion of hearing.

Asma Berrak Clerk JUDGMENT [ 1 ] George Bardis seeks leave to appeal from a final judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Michèle Monast presiding), rendered February 14, 2014, which dismissed his motion asking for revision of the Assistant Clerk’s Marie-France Devlin’s decision to tax a contested bill of costs in the amount of $9,121.05. The Assistant Clerk had ordered that amount to be paid to France Dulude, a defendant in a lawsuit initiated by Mr. Bardis, in which he claimed $950,000, solidarily, from three lawyers, including Ms. Dulude. [ 2 ] Mr.

Bardis sued the three defendant lawyers after losing a case in damages he brought against Concordia University and two of its professors for treatment he received while he was a student there. He alleged that two lawyers he had retained to represent him had been negligent in handling his case. The third defendant, Ms. Dulude, was Concordia University’s lawyer.

He alleged that she had produced a false document and lied in court during his proceedings against Concordia. [ 3 ] In other words, the action against his own lawyers is based on breach of contract while the action against co-defendant Dulude was based on an alleged extracontractual fault. All three were initially represented by the same law firm. [ 4 ] Mr. Bardis filed a discontinuance of his claim against Ms. Dulude but not against the other two lawyers. Ms. Dulude applied to the Superior Court for taxation of a bill of costs thereafter.

The amount of the condemnation for costs was ordered by the Assistant Clerk pursuant to

article 264, para. 2 C.C.P . as “costs occasioned by the suit/les frais occasionnés par la demande”. *** [ 5 ] In a detailed opinion, the judge of the Superior Court dismissed Mr. Bardis’ motion for revision of the taxation of the contested bill of costs. She held that under section 26(2) of the Tariff, the discontinuance filed during the suit should be considered to be an “incidental proceeding [that] puts an end to the dispute/incident [qui] a pour effet de mettre fin au litige” in respect of Ms. Dulude, even though proceedings continued against the other two defendants.

She concluded that the Assistant Clerk made no mistake in applying the Tariff, including the additional fee in the amount of $8,500 provided for in

section 42. The additional fee, wrote the judge, applies even in the absence of contestation or a decision on the merits in the circumstances. *** [ 6 ] Mr. Bardis argues that the judge made several errors of law in her

interpretation of the Tariff, the Code of Civil Procedure and the Civil Code of Québec . In particular, he contends that judicial fees and the additional fee are not owed on the basis of the discontinuance in this case. He disagrees with the judge’s view that the discontinuance puts an end to the dispute as, he notes, the lawsuit is ongoing against the other defendants. He argues that lawyers representing Ms. Dulude had to win their case on the merits to claim the fees. He says that s. 14 of the Tariff, among other rules, prevents each the co-defendants from claiming the 1% additional fee in the circumstances.

Moreover, the amount used to calculate the additional fees – $950,000 – was mistaken: he contends the amount was indeterminate because his motion to institute proceedings only said that he “may” claim that amount from Ms. Dulude. ***

[ 7 ] Mr. Bardis, who represents himself, has the burden of establishing that his appeal raises a question of principle, a new issue or a question of law that has given rise to a conflict in the decided cases, in accordance with the second paragraph of

article 26 C.C.P . [ 8 ] Mr. Bardis has failed to convince me that his motion discloses an issue that ought to be submitted to the Court based on the applicable criteria for leave. [ 9 ] I see no error in the judge’s decision to confirm the finding that the discontinuance of the suit against Ms. Dulude put an end to the dispute based on an extracontractual fault with her. It is true that circumstances exist in which courts have held that co-defendants should not be able to obtain more than one amount as an additional fee.

However, where co-defendants are required to defend themselves based on different bases of liability, and are faced with the prospect of preparing separate defences, there should be, as a general rule, no such bar. [1] The fact that Ms. Dulude was represented by the same lawyers as the other co-defendants makes no difference here, nor does the fact that Mr. Bardis had initially alleged that they were solidarily liable.

Moreover, the judicial fees, and even the additional fee, can apply where discontinuance puts an end to a dispute prior to a judgment on the merits. [2] [ 10 ] I agree with the judge that there is nothing indeterminate about the $950,000 claim against Ms. Dulude. In his motion to institute proceedings, Mr. Bardis presents conclusions that ask the court of first instance to condemn her in this amount. [ 11 ] None of his other arguments raises an issue that merits the attention of the Court. Even if there were an error in the reasons – and Mr.

Bardis has not satisfied me that one exists – that would not be enough to justify granting leave in the absence of a question that qualifies under the criteria of

article 26 C.C.P . Moreover, the amount in issue – while not inconsiderable – is not so substantial, when measured against the costs of an appeal, to overcome concerns of proportionality that must be taken into account at this stage of proceedings. [3] [ 12 ] I would add a final note. Mr. Bardis is not the first plaintiff to feel the sting of s. 42 of the Tariff. But that rule, when properly observed by plaintiffs, serves as a valuable deterrent against ill-considered lawsuits in service of the efficient administration of justice.

The application of the rule on discontinuance here may seem harsh but, in my view, is not unjust when broader concerns of access to justice are borne in mind. FOR THE AFOREMENTIONED REASONS , the undersigned: [ 13 ] DISMISSES the motion, with costs. NICHOLAS KASIRER, J.A.