2023 QCCA 1501, 2023 QCCA 1501

Asaduzzaman c. Audet 2023 QCCA 1501 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030744-239 ( 500-17-121940-228 ) MINUTES OF HEARING DATE: November 24, 2023 THE HONOURABLE MARK SCHRAGER, J.A. APPLICANTS Rustum asaduzzaman Unrepresented Peter Michalakopoulos Unrepresented RESPONDENTS COUNSEL yves-antoine audet tessa roy-hébert panagiotis Karavoulias Karavoulias avocats Mtre JEAN-FRANÇOIS NOISEUX Mtre CAMILLE TREMBLAY-PELCHAT ( CDNP Avocats ) Felipe Morales Mtre FRANÇOIS MARCHAND ( De Grandpré Chait )

Philippe-antoine Larochelle Fonds d'assurance responsabilité professionnelle du Bareau du Québec Mtre LUC SÉGUIN ( Timmons Séguin Tremblay ) DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on September 15, 2023 by the Honourable Marie- Anne Paquette of the Superior Court , District of Montreal (Arts. 30, 31 and 357 ss. C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10:07 Commencement of the hearing. Identification of counsel. Submissions by M. Asaduzzaman. 10:23 Submissions by M.

M ichalakopoulos. 10:46 Exchanges between the parties. 10:47 Submissions by Mtre Séguin. 10:49 Comment by Mtre Noiseux. 10:50 BY THE JUDGE: Judgment – see page 4. 10:51 Conclusion of the hearing.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The applicants seek leave to appeal the judgment (“Judgment”) of the Chief Justice of the Superior Court, Marie-Anne Paquette, sitting in the District of Montreal, of September 18, 2023, refusing authorization to institute proceedings against the Respondents. [ 2 ] The proposed action seeks $1 million in damages arising from the alleged malpractice of the Respondents, who were the lawyers representing the applicants at different times with regard to litigation concerning two immovable properties referred to hereinafter. [ 3 ] As indicated in the Judgment, the applicants were declared quarrelsome litigants in a previous judgment (“Quarrelsome Judgment”) of the Superior Court in record number 500-17-116687-214 in the in the following terms: DECLARES Defendants quarrelsome and vexatious litigants with respect to any issue or matter related directly or indirectly to the immovables located at 7403-7405, Durocher and 7861-7863, Champagneur, in Montreal; PROHIBITS Defendants from instituting any legal action before any court or tribunal with respect to any issue or matter related directly or indirectly to the immovables located at 7403-7405, Durocher and 7861-7863, Champagneur, in Montreal, without the approval of the chief justice of the competent court, or president, or director of the competent tribunal. [1] [Emphasis added] [ 4 ] Because they were declared quarrelsome litigants and given

Article 55 C.C.P. and

Article 68 of the Regulations of the Superior Court in Civil Matters , (C-25.01, r.0.2.1.), the authorization of the Chief Justice is required in order to institute the proceedings.

[ 5 ] The applicants are of the view that the Quarrelsome Judgment does not apply to the proposed action which alleges professional faults (malpractice) and seeks damages. [ 6 ] A review of the draft proceedings makes it abundantly clear that it relates at the very least, “indirectly” to the immovable properties in question. Thus, the Chief Justice's authorization was required. [ 7 ] The applicants argue that the Quarrelsome Judgment was not executory when they issued proceedings in the lower court.

However, the finding that the applicants are quarrelsome is tied inextricably to an abuse of procedure both in the facts of the Quarrelsome Judgment and as a matter of law as foreseen by articles 51 and 55 C.C.P. Thus, since the Quarrelsome Judgment adjudicated on an abuse of procedure, it was executory notwithstanding appeal and thus, in force when the proceedings herein were instituted before the superior court.

Accordingly, the authorization of the Chief Justice was required. [ 8 ] The leave application is governed by Article 30(8) C.C.P. as the Judgment is considered as pertaining to execution. [2] Thus, in order to obtain leave to appeal the applicants must demonstrate a “question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions”. Such is not the case. Rather, the applicants disagree with the Chief Justice’s reasons for refusing permission to institute the proposed proceedings.

Noncompliance by the applicants with the applicable procedure as found by the Chief Justice does not constitute a justification for the granting of leave. The Chief Justice also concluded that the proposed action has no reasonable chance of success. This is a reasonable conclusion for her not to authorize the proceeding and does not raise any point of principle justifying the granting of leave to appeal as required by

article 30 C.C.P. The Chief Justice merely exercised the discretion accorded her by law. FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 9 ] DISMISSES the “Application for leave to appeal from a final judgment rendered in the course of a proceeding”, the whole with legal costs. MARK SCHRAGER, J.A.