2022 QCCA 1493, 2022 QCCA 1493

O'connor c. Giancristofaro 2022 QCCA 1493 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029576-212 ( 500-11-056049-196 ) MINUTES OF HEARING DATE: October 6, 2022 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. APPELLANT Daniel F.

O'Connor PRESENT AND Unrepresented By videoconference RESPONDENTS EziO Giancristofaro Branislava Malobabic PRESENT AND Unrepresented By videoconference IMPLEADED PARTY PUBLICATION OFFICER FOR THE LAND REGISTRY OFFICE OF MONTREAL Absent and unrepresented DESCRIPTION: Application for recusation and to remedy the denial of respondents’ constitutional rights (Article 9, 201-202 C.C.P. ) Clerk at the hearing : Ariane Simard-Trudel Courtroom: RC-18 HEARING 14:01 Commencement of the hearing. Identification of parties. Discussion between the judge and the parties.

14:06 Submissions by Mrs. Malobabic. Discussion between the judge and Mrs. Malobabic. Mr. Giancristofaro agrees with the submissions of Mrs. Malobabic. 14:09 Submissions by Mr. O’Connor. Videoconference problems. Mr. O’Connor will join the meeting by telephone. 14:16 Mr. O’Connor joins the meeting by telephone. Submissions by Mr. O’Connor. 14:17 Discussion between the judge and Mr. O’Connor. 14:20 Discussion between the judge and the parties concerning the date of the hearing. 14:25 BY THE JUDGE : Judgement – see page 3. 14:27 Conclusion of the hearing.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT [ 1 ] Respondents Malobabic and Giancristofaro are asking for the undersigned’s recusation as a member of the panel that will hear the appeal currently scheduled on November 9, 2022. They essentially argue that the undersigned failed to raise a potential conflict of interest in past hearings in relation to the fact that she had been a partner with the law firm of Heenan Blaikie prior to her appointment to the Superior Court on July 30, 2008 and that, as a result, lacked impartiality.

In their view, the connection to Heenan Blaikie creates a conflict because the services of a member of the firm’s litigation team were initially retained by Malobabic in the matter that led to the Pinsonnault judgment that preceded the judgment that is now under appeal. [ 2 ] The judgment under appeal is one of many that followed another decision of the Superior Court rendered on September 21, 2018, which granted O’Connor’s claim in oppression and condemned Malobabic and her corporations to pay him damages, while dismissing and declaring abusive their contestation as well as their $10 million cross-demand against O’Connor (the Pinsonnault judgment). [ 3 ] Respondent Malobabic and her corporations filed a notice of appeal of the Pinsonnault judgment which was dismissed under sec. 365 C.C.P. on January 21, 2019.

The undersigned was one of the three judges that heard and granted that motion to dismiss. Respondent Malobabic sought the revocation of that decision, which was denied, as was her application for leave to appeal to the Supreme Court. [ 4 ] The current appeal concerns a judgment rendered on May 31, 2021 by Justice Thomas M. Davis of the Superior Court which dismissed the Appellant O’Connor’s action against the Respondents.

On October 21, 2021, the undersigned was again one of three members of a panel that dismissed the Respondents’ Motion to dismiss, after concluding that the judgment under appeal was a final judgment that did not require leave to appeal and that the appeal itself did not appear to be devoid of merit. [ 5 ] The participation of the undersigned in the hearings described above raises no reasonable apprehension of bias. In this regard, it must be pointed out that Malobabic never previously asked for the undersigned’s recusation nor did the undersigned ever recuse herself, contrary to what Malobabic alleges.

On April 13, 2019, the undersigned did not seize herself of the matter that was heard and decided by another judge of the Court. [ 6 ] More importantly, the Pinsonnault judgment (which totals 283 pages and 1267 paragraphs) does not make any reference to the involvement of Heenan Blaikie prior to the undersigned’s appointment to the Superior Court on July 30, 2008. Consequently, there was no potential conflict of interest to be raised at the time of hearing the Motion to dismiss the appeal of this judgment.

In fact, the earliest reference in the Pinsonnault judgment to the involvement of Heenan Blaikie dates back to September 11, 2008 when a letter of demand was addressed on behalf of Malobabic and her corporations to O’Connor (at paragraph 746 of the Pinsonnault judgment). The other references to Heenan Blaikie relate to a lawsuit filed against the firm and two of its lawyers in 2010 and which obviously did not include the undersigned since I was no longer a partner there. [ 7 ] That said, the Respondents have raised an issue in their brief that directly targets the undersigned.

The issue which is discussed over three pages of the brief is drafted as follows: III.G Are the Respondents denied fundamental and natural justice by the Hon. Justice Geneviève Marcotte? [ 8 ] The Respondents have thus placed the undersigned in the position of having to address grounds of appeal that involve her.

In the very particular and unique circumstances of this case, and without taking position on the seriousness of this ground of appeal, the undersigned considers it preferable to recuse herself. [ 9 ] That being said, nothing in the Respondents’ application justifies their conclusion claiming compensation for the damage

suffered “resulting from denial […]”, which conclusion is dismissed. FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] GRANTS in part the application in recusation insofar as the undersigned is concerned; [ 11 ] RECUSES herself in the appeal matter 500-09-29576-212 scheduled to be heard on November 9, 2022; [ 12 ] REFERS the request to appoint another panel to hear the appeal to the Chief justice of Québec; [ 13 ] THE WHOLE, without legal costs. GENEVIÈVE MARCOTTE, J.A.