r v. Canada, 2016 QCCA 351

Québec (Procureure générale) c. D'Amico 2016 QCCA 351 COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OF MONTREAL No.: 500-09-025747-155(500-17-082567-143) DATE: FEBRUARY 24, 2016 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. ALLAN R. HILTON J.A. ROBERT M. MAINVILLE, J.A. ATTORNEY GENERAL OF QUEBECAPPELANT / RESPONDENT ON THE MOTION FOR INTERIM COSTS - Defendantv.LISA D’AMICO and PAUL J.

SABARESPONDENTS / PETITIONERS ON THE MOTION FOR INTERIM COSTS - PlaintiffsandATTORNEY GENERAL OF CANADAIMPLEADED PARTY / RESPONDENT ON THE MOTION FOR INTERIM COSTS –Impleaded partyandDIRECTOR OF CRIMINAL AND PENAL PROSECUTIONSIMPLEADED PARTY – Impleaded partyandCHRISTIAN LEGAL FELLOWSHIP, EUTHANASIA PREVENTION COALITIONIMPLEADED PARTIES – Interveners JUDGMENT [1] The respondent Paul J. Saba (“Dr.

Saba”) seeks a provision for costs for his participation in the appeal of the Attorney Generalof Quebec ("AGQ") from a judgment of the Superior Court declaring the provisions of the Act Respecting End-of-Life Care, RSQ, c. S-32.0001, regarding medical aid in dying inapplicable until the declaration of invalidity pronounced by the Supreme Court of Canada inCarter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, takes effect. That appeal was allowed by this Court onDecember 22, 2015. [2] In support of his motion, Dr.

Saba cites the judgments of the Supreme Court in British Columbia (Minister of Forests) v.Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371 and Little Sisters Book and Art Emporium v. Canada(Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38.

He asserts that he meets the criteria set out in thesejudgments, i.e. he is impecunious, the claim to be adjudicated is prima facie meritorious, it is in the interests of justice that he be granteda provision for costs and, finally, the matter transcends the individual interests of the litigants, is of public importance, and that the issuesraised have not been decided previously. [3] It should be noted that the appeal was heard on an urgent basis as the AGQ was insisting that the provincial statute at issuecome into force on the scheduled date, i.e.

December 10, 2015, and the Attorney General of Canada (“AGC”) was asking the SupremeCourt of Canada to extend the period of suspension of its judgment in Carter by six months. [4] The criteria set out in Okanagan and Little Sisters would have been worthy of a thorough analysis if the motion for a provisionfor costs had been heard before the Court rendered its decision on the merits of this case. The circumstances prevented this fromoccurring.

The Court therefore reserved jurisdiction to rule on the issue of costs, hence the present judgment. [5] In the case at hand, the respondents’ submissions on appeal were, as we know, dismissed by this Court. Between the date ofthe trial resulting in the judgment appealed from and the hearing of the appeal, however, the AGC substantially modified its position.

[ 6 ] At trial, the AGC supported the issuance of a provisional injunction regarding the temporary suspension of the sections of the Act Respecting End-of-Life Care regarding medical aid in dying and submitted that their application should be suspended until Parliament responded to Carter . [ 7 ] The trial judge upheld this position, mainly under the doctrine of federal legislative paramountcy, according to which, when federal and provincial laws are incompatible, the federal legislation prevails. [ 8 ] The AGC did not raise that argument on appeal, supporting instead the position of the AGQ that the provincial legislation at issue should receive immediate application. [ 9 ] In his affidavit, Dr.

Saba states that, in his view, the AGC abandoned the appeal, so to speak, by reversing its position and leaving him to defend alone, on appeal, the position that was initially successfully raised by the AGC before the trial judge. He characterizes the AGC’s conduct as abusive, invoking articles 51 and following of the Code of Civil Procedure (“ C.C.P .”). He also raises the articles of the C.C.P. dealing with discontinuance, alleging that the AGC implicitly abandoned the judgment a quo that upheld its submissions. [ 10 ] The Court does not consider that this is a case of abuse of process.

Nevertheless, the reversal of the AGC’s position on appeal justifies granting a provision for costs to the respondent. [ 11 ] Having encouraged the respondents’ legal proceedings in first instance, the AGC withdrew its support on appeal and instead supported the position of the AGQ. Dr. Saba then found himself in a position where he was alone to defend the challenged order since, according to the trial judgment, the other respondent on appeal and plaintiff at trial did not meet the legal requirements for the granting of a provisional injunction. Dr.

Saba thus found himself in the curious situation of having to defend federal legislation in place of the AGC and raising before this Court the arguments that the AGC had supported at trial.

In our view, t his unusual situation justifies granting a provision for costs in light of the particular circumstances at issue. [ 12 ] The right to a provision for costs to be paid by the AGC having thus been established, the amount of this provision remains to be determined. [ 13 ] Although they were invited to make submissions on the issue of quantum, neither counsel for the AGC nor counsel for the AGQ submitted that the amount sought was unreasonable. Their only point on this topic was that Dr.

Saba did not establish his inability to pay in light of his income and assets. [ 14 ] In this regard, it should be noted that at the hearing of the present motion, Dr. Saba wanted to file an affidavit from his accountant attesting that he lacked sufficient resources. [ 15 ] When asked to respond, the AGQ and AGC submitted to the Court that this affidavit was not determinant of the outcome. At the same time, however, they submitted that Dr.

Saba had not established that he did not have the financial resources necessary to fund the proceedings, going so far as to point out that the appeal had nevertheless been heard, while conveniently failing to mention that this had only been possible because counsel for Dr. Saba had agreed to advance their fees in view of the urgency of the matter. [ 16 ] In these circumstances, and considering the weakness of the argument of the AGQ and AGC on this point, the Court finds this new evidence to be admissible.

Although it was submitted late, it was made relevant by the positions taken by the AGQ and AGC and caused them no prejudice since the Court, as shown in the reasons above, does not consider it to be overriding. [ 17 ] In

summary, in view of the particular circumstances of this case, of the fact that the amount requested is relatively modest in terms of time spent on the file and hourly rates, the short time period available to counsel for Dr. Saba, and

article 49 C.C.P. , which grants the courts wide discretion in such matters, the motion for provision for costs is granted against the AGC for an amount of $44,375 plus applicable taxes and disbursements upon presentation of the relevant invoices to counsel for the AGC, the whole without other legal costs. FOR THESE REASONS, THE COURT: [ 18 ] ALLOWS the motion in part; [ 19 ] ORDERS the Attorney General of Canada to pay Paul J. Saba the amount of $44,375 plus applicable taxes within 30 days; [ 20 ] ORDERS the Attorney General of Canada to pay Paul J.

Saba the disbursements he incurred on appeal within 30 days of presentation of the relevant invoices. [ 21 ] The whole without legal costs on the motion. NICOLE DUVAL HESLER, C.J.Q. ALLAN R. HILTON J.A. ROBERT M. MAINVILLE, J.A.

Mtre Mario Normandin Mtre Manon Des Ormeaux BERNARD, ROY (JUSTICE QUEBEC) For the Attorney General of Québec Mtre Gérard Samet COLAS MOREIRA KAZANDJIAN ZIKOVSKY For Lisa D'Amico Mtre Dominique Talarico Mtre Anamaria Natalia Manole ANAMARIA NATALIA MANOLE, AVOCATE For Paul J. Saba Mtre Nadine Dupuis JUSTICE CANADA For the Attorney General of Canada Mtre Robert E. Reynolds (absent) For the Christian Legal Fellowship Mtre Pierre Y. Lefebvre (absent) FASKEN MARTINEAU DuMOULIN For the Euthanasia Prevention Coalition Date of hearing: February 9, 2016