2019 QCCA 744, 2019 QCCA 744

Nwabue c. McGill University 2019 QCCA 744 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027476-183, 500-09-027992-189 (500-17-098123-170, 500-17-100756-173) DATE: April 25, 2019 CORAM: THE HONOURABLE JACQUES DUFRESNE, J.A. GENEVIÈVE COTNAM, J.A. STÉPHANE SANSFAÇON, J.A. ROGERS NWABUE APPLICANT – Plaintiff v. McGILL UNIVERSITY ET AL. MCGILL UNIVERSITY AS SUSAN CAMPBELL ET AL.

RESPONDENTS – Defendants JUDGMENT [ 1 ] On January 16, 2019, a judge of the Court referred four applications or motions of different natures filed by the Applicant, Rogers Nwabue, against Respondent, McGill University and also other Respondents, mostly from this University, to be heard by the same panel of judges. [1] BACKGROUND [ 2 ] In December 2015, the Applicant was admitted to a PhD program at Respondent, McGill University’s Department of Human Genetics. In November 2016, the Applicant was informed that he was withdrawn from the program, having failed to secure a supervisor for his research.

During his time as a graduate student, Mr Nwabue was living in student housing on the McGill campus until he was evicted from the same, following a decision from the Régie du logement rendered on June 2017, which was affirmed on October 20, 2017, by Justice Diane Quenneville of the Court of Québec. [ 3 ] In the midst of the proceedings before the Régie du Logement , the Applicant filed before the Superior Court an Originating Application for the Issuance of a Safeguard Order, an Interlocutory Injunction and a Permanent Injunction and a Motion for Provisional Injunction . [ 4 ] On March 31, 2017, Justice Lukasz Granosik of the Superior Court dismissed the Applicant’s motion for a provisional injunction. [ 5 ] On June 9, 2017, Justice Guylaine Beaugé of the Superior Court granted the Respondents’ motion for dismissal and dismissed the applicant’s Originating Application for the Issuance of a Safeguard Order, an Interlocutory Injunction and a Permanent Injunction and a Motion for Provisional Injunction . [ 6 ] On July 19, 2017, Justice Yves Poirier of the Superior Court dismissed Mr Nwabue’s Application in revocation of the judgment rendered on June 9, 2017. [ 7 ] Then, Mr Nwabue filed an application asking the Superior Court to revoke these three Superior Court judgments.

He also requested that the Superior Court annul decisions rendered previously by the Régie du Logement and the subsequent judgment rendered by the Court of Québec. [ 8 ] On March 27, 2018, Justice Gary D. D. Morrison of the Superior Court declined to recuse himself from the litigation and dismissed the Plaintiff’s Application for Recusation of the Judge . [ 9 ] On May 30, 2018, the Court dismissed Mr Nwabue’s application for leave to appeal and denied leave to appeal the judgment rendered on March 27, 2018 by Justice Gary D. D. Morrison of the Superior Court. [2]

[ 10 ] The Applicant filed two motions before a judge of the Court: a Motion for a stay of proceedings in the Superior Court and to suspend the execution of the judgment of this Court rendered on May 30, 2018, and an Application (motion) for order of the appellate court for the upload of Superior Court documents to plumitif, provision of copies of missing & sealed documents and for State-funded transcripts .

On October 19, 2018, both motions were dismissed by Justice Martin Vauclair, J.C.A. [ 11 ] A one-day hearing was scheduled for the purposes of hearing the applicant’s outstanding proceedings in Superior Court. On the date of hearing, November 30, 2018, the applicant failed to appear despite being duly advised of the same, but the Respondents’ attorney was present. Before proceeding any further, the judge rendered a detailed judgment by which he “[g]rants defendant’s petition that the hearing proceed in the absence of Plaintiff” (this judgment is attached to the procès-verbal dated November 30, 2018).

The judge then reviewed all Applicant’s proceedings, including the alleged exhibits, and allowed Respondents’ attorney to file exhibits and to make representations, before taking the matters under advisement. [ 12 ] On December 10, 2018, Justice Gary D. D.

Morrison [3] of the Superior Court rendered judgment, dismissing all the Applicant pending proceedings, holding that Mr Nwabue already ordered eviction should not take place prior to December 14, 2018, granting the respondent’s Application to have Rogers Nwabue declared a quarrelsome or querulous litigant and ordering “provisional execution of the present prohibitions and orders pertaining to Rogers Nwabue as a quarrelsome litigant notwithstanding appeal”. [ 13 ] On December 14, 2018, Mr Nwabue filed a Notice of appeal of the Superior Court judgment of December 10, 2018 as well as an Application for leave to appeal from a judgment that terminates proceedings , which makes reference to the same judgment from the Superior Court and an Application to suspend the provisional execution of Judgment of the Superior Court rendered on December 10, 2018 . [ 14 ] On January 11, 2019, Mr Nwabue filed an Emergency Motion to Cancel provisional Execution of and to revoke the December 10, 2018 Superior Court Judgment, grant a safeguard order, charge Respondents with contempt of Court and bar Respondents from participating in the Appeal proceedings . [ 15 ] This factual and procedural

summary leads to the determination of Mr Nwabue’s pending proceedings before the Court. ANALYSIS w Application (Motion) for revocation of two Judgments rendered by the Quebec Court of Appeal (Court file 500-09-027476-183) [ 16 ] The Applicant, Rogers Nwabue, seeks the revocation of a judgment rendered by the Court on May 30, 2018, which dismisses his application for leave to appeal and denies leave to appeal the judgment rendered on March 27, 2018, by Mr Justice Gary D. D.

Morrison of the Superior Court, District of Montreal, declining to recuse himself from the litigation and dismissing the Plaintiff’s Application for Recusation of the Judge . [ 17 ] Applicant’s proceeding for revocation of the Court judgment of May 30, 2018, was filed late, on November 26, 2018, and on its face well beyond the time limit set out in art. 347 C.C.P.

The application for revocation of this judgment from the Court of appeal is therefore dismissed, with costs. [ 18 ] The Applicant also seeks the revocation of a judgment rendered by Mr justice Martin Vauclair on October 19, 2018, which dismisses his motion for stay of proceedings in Superior Court and to suspend the execution of the judgment of this Court rendered on May 30, 2018. [ 19 ] The Applicant had no active file before the Supreme Court at the time he appeared before Mr Justice Vauclair.

He also invoked extraordinary circumstances, but failed to make any convincing demonstration of the seriousness of his allegations. [ 20 ] In support of the present application for revocation of these two judgments, the Applicant alleged the following reasons: - November 7, 2018 discovered indispensable new evidence that Respondents failed to file a representation statement with the Quebec Court of Appeal – arts. 2 & 30 C.P.R. , and arts. 25 and 358 C.C.P. ; - The failure of the Appeal Court to render the May 30, 2018 judgment on other conclusions set-out in the application for leave to appeal; - Refusal of the Appeal Court, on May 28, 2018, to hear the appelant’s other motions appropriately brought before the Court; - The failure of the Chambers judge to rule on the conclusions set out in the October 11, 2018 application for an order for the lower court’s compliance with the “open court principle”, despite the express provisions of art. 49 para. 2 C.C.P. and art. 82 C.P.R. [ 21 ] The Respondents did not necessarily have to file a representation statement when considered the nature of the applicant’s proceedings.

Both of his proceedings – a motion for leave to appeal in one case and in the other an application for revocation of judgments rendered by the Court – could be contested by the respondents, as they were, by appearing before the Court on the day of their presentations. It should be kept in mind that the Respondents had already appeared before the Court when the initial Applicant’s proceedings were respectively heard by the Court on May 28, 2018 and October 16, 2018. The first ground alleged for the revocation of judgments is ill founded. [ 22 ] The other grounds do no meet any of the criteria of art. 345 C.C.P.

The applicant’s motion for revocation raises no ground upon which the Court could justify making an exception to the well established rules protecting the finality and stability of judgments: “Motions for revocation are not meant to relitigate issues already decided by a court, because a litigant disagrees with the judgment”. [4]

Court file 500-09-027992-189 w Application for leave to Appeal from a Judgment that terminates procedures dated December 12, 2018; and w Notice of Appeal regarding the declaration of the appellant as a quarrelsome litigant. [ 23 ] On December 14, 2018, the Applicant filed an Application for leave to appeal from the December 10, 2018 judgment rendered by Mr Justice Gary D. D. Morrison of the Superior Court (500-17-098123-170 and 500-17-100756-173).

On the same day, Applicant filed a Notice of appeal of the same judgment. [ 24 ] The Applicant was duly advised that all his pending proceedings in the Superior Court were to be heard on November 30, 2018. The applicant failed to appear, but the Respondents’ attorney was present.

As mentioned above, the Superior Court judge then rendered a detailed judgment allowing the respondents to proceed on both parties proceedings in the absence of the Applicant. [ 25 ] The judge reviewed all Applicant’s proceedings, including the alleged exhibits, and allowed Respondents’ attorney to file exhibits and to make representations. At the end of the hearing, the matters before the judge were taken under advisement.

Judgment was subsequently rendered on December 10, 2018. [ 26 ] The conclusions of the Superior Court judgment rendered on December 10, 2018 could be distinguished as follows. [ 27 ] Firstly, it dismisses the following plaintiff’s applications: 1.

Application for Revocation of Judgments [judgments rendered respectively by Mr Justice Yves Poirier on July 2017, which refused Mr Nwabue’s application in revocation of Madam Justice Guylaine Beaugé judgment rendered on June 9, 2017, who granted the respondent’s Motion to dismiss the application for the issuance of a safeguard order, an interlocutory injunction and a permanent injunction]; 2. Incidental Application for the Annulment of the Lower Court Judgments and all related demands in annulment and appeal, including those found in the Amended Originating Application; 3.

Application for Issuance of an Interlocutory Provisional Injunction; 4. Application for the Issuance of Safeguard Order; 5. Summons for documents annexed to the Originating Application, as well as the Further Request from the Defendants and Co- Defendants for Production of Documents and Application for a Court Order Directing Defendants / Co-Defendants to Produce the Requested Documents; 6. Amended Plaintiff’s Originating Application; 7. Motion for Order of the Special Case Management Judge, an omnibus proceeding; 8. Application to Have this Case Set Down for Judgment by Default, and all related demands; 9.

Application for Correction of the September 14, 2017 Procès-verbal; 10. Application to Declare Defendants and Co-Defendants Quarrelsome Litigants and to Strike in Response to the Defendants and Co- Defendants Application to Declare Plaintiff a Quarrelsome Litigant; and 11.

Any and all other outstanding demands, motions and applications in the present court files. [ 28 ] Secondly, it determines the date of eviction of the Applicant from the Respondent’s student housing, but the eviction itself was already ordered on June 2, 2017 by the Régie du logement and confirmed on July 24, 2017 as well as on September 13, 2017 and by a final judgment rendered on October 20, 2017 by Madam Justice Diane Quenneville of the Court of Québec.

In these circumstances, there is no ground whatsoever for granting leave to appeal from such conclusions, which at best could be characterised as a judgment ruling on an execution matter (art. 30, 2 nd para.,

(8) C.C.P. ). [ 29 ] Thirdly, it grants the Respondents’ Application to have the Applicant, Rogers Nwabue, declared a quarrelsome litigant. [ 30 ] The applicant’s motion for leave to appeal from the first conclusion of the Superior Court judgment of December 10, 2018 dismissing Plaintiff’s Applications 1 to 11 as described in paragraph [27] above shall be dismissed. [ 31 ] First of all, the Applicant did not provide any reason to explain or justify his failure to attend the hearing duly scheduled on November 30, 2018.

The Court cannot allow a proliferation of, repetitive, confused and spurious proceedings causing a significant waste of the Court’s valuable time to the detriment of other parties who have a right to be heard.

Moreover, by being absent from the scheduled hearing, the Applicant failed to meet his burden of proof and burden of persuasion. [ 32 ] These applications that were pending before the Superior Court are, in essence, either matters for Case Management decisions (Plaintiff’s Applications 7, 8 and 9 described in paragraph [27] above) or matters inviting judgments of a discretionary nature (Plaintiff’s Applications 1, 2, 3, 4, 5, 10 and 11) in paragraph [27] above) for which the Applicant has not demonstrated any reason for the Court to

grant leave to appeal. [ 33 ] However, the conclusions of December 10, 2018 Superior Court judgment granting Respondents’ Application for Declaration of quarrelsome Litigant and declaring Mr Nwabue a quarrelsome litigant, which include numerous prohibitions and orders, are appealable as of right.

The said conclusions of the Superior Court judgment of December 10, 2018 that require no leave to appeal and for which the Applicant filed a Motion for leave to appeal as well as a Notice of appeal reads as follows: GRANTS Defendants’ Application for Declaration of Quarrelsome Litigant; PROHIBITS Rogers Nwabue from instituting any judicial demand or from otherwise filing any motion, demand, application or other pleading or procedure, of any nature whatsoever, before the Superior Court, Court of Québec or any administrative tribunal or adjudicative body subject to the Superior Court’s powers of supervision and judicial control, without having obtained prior written authorization from the Chief Justice of the Superior Court, the Chief Justice of the Court of Québec, or the president or director general of the tribunal or administrative body, depending on which has jurisdiction, or from any other person or persons designated to act on their behalf; PROHIBITS Rogers Nwabue from filing any disciplinary complaint relating to any procedure, of any nature, without having obtained prior written authorization from the “Syndic” president or director general of the relevant body; DECLARES that all officers of all court offices must refuse to accept the filing by Rogers Nwabue of any pleading or procedure, regardless of the title or description used, unless it is the object of a prior written authorization issued in accordance with the present judgment; ORDERS that any pleading or procedure filed by Rogers Nwabue in contravention of the present Order is null and deemed never to have existed, and is to be struck; ORDERS Rogers Nwabue to communicate only by mail with the court offices of the judicial authorities identified in the present Order, and this for the purposes of obtaining the required authorization to file; [ 34 ] Except in circumstances in which the right of appeal is otherwise governed by specific enactment, [5] the general rules of the right of appeal are set forth in articles 30 to 32 C.C.P. [ 35 ] Imposing restrictions on a party’s right to be heard pursuant to art. 55 C.C.P. and because of that party’s demonstrated quarrelsome or querulous conduct, is a matter which the legislature thought sufficiently serious to justify that an appeal as of right lie in favour of the party in question. [6] By contrast, a judgment dismissing a judicial application pursuant to art. 53 C.C.P. because of its abusive nature is only appealable with leave, as required by art. 30 second par., sub-par. 3 C.C.P .

However, the Court may, by its own initiative or on an application by the Respondent, dismiss the appeal if the right to appeal has been forfeited (in French, « il y a déchéance du droit d’appel ») or the appeal is abusive or improperly initiated; it may also, on an application from the Respondent, dismiss the appeal if the appeal has no reasonable chance of success (art. 365 C.C.P. ). [ 36 ] The rationale for this difference in treatment is tied to the different impacts of such judgments. The effects of the dismissal of an action on the ground that it is abusive are, on the whole, limited.

Such is not the case with a prohibition based on art. 55 C.C.P. – it curtails a person’s right to go to court, which is not a minor restriction. [ 37 ] Applicant’s Notice of appeal dated December 12, 2018 is the appropriate proceeding to appeal that part of the first instance judgment which declares that he is a quarrelsome litigant.

All of the other conclusions of Appelant’s Notice of appeal are either non- existent or abusive proceedings or improperly initiated and will be dismissed (art. 365 C.C.P. ). w Application to suspend the provisional execution of Judgment of the Superior Court rendered on December 10, 2018; and w Emergency Motion to Cancel provisional Execution of and to revoke the December 10, 2018 Superior Court Judgment, grant a safeguard order, charge Respondents with contempt of Court and bar Respondents from participating in the Appeal proceedings [ 38 ] The Applicant seeks numerous conclusions in the above Application and Emergency Motion.

They will be regrouped as follow. [ 39 ] Firstly, the Respondents’ attorneys duly filed on December 27, 2018,

an act of representation. Under the circumstances, Applicant’s conclusion by which he demands that Respondents be barred from participation in the appeal proceedings is ill founded, if not devoided of any merit, and it will be dismissed.

At all times, Respondents were duly represented before the Court of Appeal. [ 40 ] Secondly, the Applicant seeks the suspension of the judgment rendered on December 10, 2018 until judgment is rendered on his appeal. [ 41 ] The conditions for such a stay are well-known: (1) there is an apparent weakness in the judgment (or, in some instances, a serious question of law to be discussed), (2) there is a risk of serious and irreparable prejudice that must urgently be avoided, and (3) the balance of convenience favours the party seeking the stay.

These conditions, which are cumulative, are rigorously applied. [7] [ 42 ] Without expressing any opinion on the merit of the appeal from that part of the judgment which declares the Applicant a

quarrelsome litigant, it is apparent to this Court that the effect of this declaration is unusually broad and that it extends beyond the Respondents to any litigation of any nature involving any adverse party (that is, disciplinary, administrative or quasi-judicial proceedings in addition to any proceedings in the Superior Court and in the Court of Québec).

Yet, in the absence of any evidence to the contrary, we must assume that the only litigation in which the Applicant (also Appelant) is currently engaged is that which involves the Respondents. [ 43 ] To that extent that the said declaration is not limited to proceedings against the Respondents, the judgment appealed from presents an apparent weakness. Because it appears overbroad, this declaration may cause a serious and irreparable prejudice to the Appelant as it deprives him of his right to sue without prior authorization persons or entities other than the parties he faced in the court below.

On this score, the balance of probabilities clearly favours the Applicant (also Appellant) especially so since the provisional execution of the judgment of first instance can remain in force with respect to the Respondents. [ 44 ] It is therefore appropriate to suspend for the duration of the appeal the provisional execution of the judgment appealed from, insofar as this judgment declares the Appellant a quarrelsome litigant, except as regards the Respondents listed as defendants and co-defendants on the first two covering pages of the Superior Court judgment of December 10, 2018 (files 500-17-098123-170 and 500- 17-100756-173). [ 45 ] Furthermore, since the only proceeding in appeal remains the part of the Superior Court judgment of December 10, 2018 that declares Mr Nwabue a quarrelsome litigant, it appears appropriate to determine in the conclusions of the present judgment that the appeal will proceed by memorandums, instead of briefs, and to accelerate the appeal process by determining a timetable (art. 367 and 368 C.C.P. ). [ 46 ] It bears a mention here that the Respondent’s application of March 14, 2019 to have the Applicant declared a quarrelsome litigant has been managed by the Court at the hearing, on March 22, 2019.

For purpose of efficiency, the Applicant’s appeal from the Superior Court judgment declaring him a quarrelsome litigant and the Respondent’s Application to have Appellant declared a quarrelsome litigant shall be heard on the same day by a single panel of judges of the Court. [ 47 ] Finally, numerous orders and conclusions sought in the aforementioned motions are simply repeting conclusions found in other of the Applicant’s proceedings addressed above. For the preceding reasons, they will be be dismissed.

To the exception of the conclusion asking for the suspension of the provisional execution that will be granted in part, all other conclusions of the above Appelant’s motions are ill founded and are dismissed.

FOR THESE REASONS, THE COURT : [ 48 ] DISMISSES Mr Rogers Nwabue’s Application (Motion) for revocation of two Judgments rendered by the Quebec Court of Appeal (Court file 500-09-027476-183); [ 49 ] DISMISSES Mr Rogers Nwabue’s Application for leave to Appeal from a Judgment that terminates procedures dated December 12, 2018; [ 50 ] DISMISSES Mr Rogers Nwabue’s Emergency Motion to Cancel provisional Execution of and to revoke the December 10, 2018 Superior Court Judgment, grant a safeguard order, charge Respondents with contempt of Court and bar Respondents from participating in the Appeal proceedings Application to suspend the provisional execution of Judgment of the Superior Court rendered on December 10, 2018; [ 51 ] DISMISSES , in conformity with art. 365 C.C.P. , all conclusions from Mr Rogers Nwabue’s Notice of appeal of the December 10, 2018 Superior Court Judgment, to the exception of the conclusion in this judgment by which he is declared a quarrelsome litigant; [ 52 ] GRANTS Mr Rogers Nwabue’s Application to suspend the provisional execution of Judgment of the Superior Court rendered on December 10, 2018 pertaining to Mr Rogers Nwabue as a quarrelsome litigant, but in part only, so as not to suspend execution with respect to the following persons or entities: McGill University, Faculty of Medecine, McGill University, Department of Human Genetics, McGill University, Reproductive Endocrinology & Infertility Fellowship Program, McGill University, Amiee Ryan, Eric Shoubridge, Jean-Jacques Lebrun, Ross Mackay, Simon Gravel, Ioannis Ragoussis, William Buckett, Asangla Ao, Seang Lin Tan, Christopher Manfredi, Elaine Davis, Kathleen Massey, Glenn Zabowski, Anne-Marie Durocher, Pascale Legros, Heidi Emami, Marisa Albanese, Susan Campbell, Maria Gabriel and Amanda Rosenberg and McGill University “as” Susan Campbell, Victoria Percival-Hilton, Alexandre Mireault, McCarthy Tétrault s.e.n.c.r.l., s.r.l., and Pietro Macera / Étude Pietro Macera Inc.; [ 53 ] DETERMINES that Mr Rogers Nwabue appeal of the Superior Court judgment of December 10, 2018 that declares him a quarrelsome litigant proceeds by memorandums of a maximum of 20 pages upon the following timetable: - The Appellant, after having notified a copy upon the Respondents, will file in the Office of the Court, no later than May 31, 2019, five (5) copies of his memorandum not exceeding twenty (20) pages; - The Respondents, after having served a copy upon the Appellant, will file in the Office of the Court, no later than June 28, 2019, five (5) copies of their memorandum not exceeding twenty (20) pages ; [ 54 ] ORDERS that the Appeal of the Superior Court judgment of December 10, 2018, declaring the Appellant, Rogers Nwabue, a quarrelsome litigant and the Respondent’s Application to have Appellant declared a quarrelsome litigant in appeal be heard on the same day by a single panel of judges of the Court on the same day by the Court, the date to be determined by the Court’s Master of rolls; [ 55 ] The whole, with legal costs.

JACQUES DUFRESNE, J.A. GENEVIÈVE COTNAM, J.A. STÉPHANE SANSFAÇON, J.A. Mr Rogers Nwabue In person Mtre Kristian Brabander Mtre Gabrielle Baracat McCarthy Tétrault For the Respondents Date of hearing: March 22, 2019