2016 QCCA 1421, 2016 QCCA 1421

D.B. c. M.B. 2016 QCCA 1421 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026125-161 (500-14-048032-155), (500-14-040437-121), (500-17-084377-145) MINUTES OF THE HEARING DATE: September 7, 2016 THE HONOURABLE NICHOLAS KASIRER, J.A. APPELLANT ATTORNEY D. B. SELF-REPRESENTED RESPONDENTS ATTORNEYS M. B. CURATEUR PUBLIC DU QUÉBEC Mtre Geeta Narang (Narang et associés, s.e.n.c.) (Absent) Mtre STÉPHANIE DESMARAIS ( Le Curateur public du Québec ) IMPLEADED PARTIES ATTORNEYS JEAN EL-MASRI J. B. ABSENT ABSENT

DESCRIPTION: Application for leave to appeal from the judgment rendered on April 13, 2016 by the Honourable William Fraiberg of the Superior Court, District of Montreal (art. 30 (1), 3, 32, 356 and 357 Civil Code of Procedure ) Clerk: Annabel David Courtroom: RC-14 HEARING 9 : 37 Roll call and identification of the parties. Suspension. 10 : 28 Beginning of the hearing. Exchanges between the judge and Ms. B.. 10 : 29 Representations by Ms. B.. 10 : 33 Filing of a new motion for postponement by Ms. B.. 10 : 40 Representations by Mtre Desmarais. 10 : 42 Reply by Ms.

B.. 10 : 44 The judgment will be rendered today, September 7, 2016 at 16 h 00. The parties do not have to be present as the judgment will be sent to them by email. Conclusion of the hearing. 16 : 23 BY THE JUDGE : Judgment – page 4. (

s) Annabel David Clerk BY THE JUDGE JUDGMENT [ 1 ] D.

B., who is not represented by counsel, seeks leave to appeal from two judgments of the Superior Court, District of Montreal, (the Honourable William Fraiberg), rendered on November 10, 2015 and April 13, 2016, which, inter alia , dismissed her motion for revocation of judgment and declared that proceeding to be an abuse of procedure. [1] [ 2 ] She also asks for a postponement of her motion for leave as she wishes to obtain the transcripts of the hearings before the Superior Court. *** [ 3 ] The motion was initially placed on the roll, at the petitioner’s request in her Notice of Presentation, on August 3, 2016.

On August 2, 2016, the petitioner communicated with the registry of the Court seeking a postponement. Citing a letter received from the registry of the Court that she considered to be unclear, the petitioner said had been under the mistaken impression that her motion was not on the roll for August 3, 2016. The Public Curator opposed that request for a postponement. The undersigned concluded that the petitioner’s mistake was not unreasonable and granted the motion for postponement, fixing the new date for hearing the motion for leave on September 6, 2016: 2016 QCCA 1259 .

[ 4 ] The petitioner was available on September 6, 2016 and asked for a further postponement, renewing, as well, her submission that she needs the transcripts to prepare argument. Again the respondent opposed the request for a postponement. The registry rescheduled the hearing for September 7, 2016. *** [ 5 ] A further postponement of the motion for leave to appeal would serve no useful purpose.

Proper observance of the principle of proportionality requires that the motion for postponement be dismissed. [ 6 ] The judgment on November 10, 2015 was rendered from the bench and the petitioner was present at the hearing. The petitioner filed her motion for leave to appeal on June 2, 2016, well outside the 30-day time limit for bringing a motion for leave (former

article 494, 523 C.C.P.; arts. 360, 363, para. 1 of the new C.C.P.). The right of appeal has been forfeited, subject to the limited power of the Court’s power to authorize a late appeal. A judge in chambers has no such power. Given the lack of jurisdiction of a judge in chambers on the motion for leave, a postponement of the motion from the November 10, 2015 judgment would serve no purpose.

It bears noting as well that the petitioner’s right to ask the Court to authorize a late appeal is, in principle, limited to six months from the judgment. [ 7 ] I am also of the view that postponing the hearing on the motion for leave from the judgment of April 13, 2016 would serve no useful purpose as the motion has no reasonable prospect of success. I recognize that the motion for leave is not late when one calculates the 30-day time limit from the date of the notice of judgment rather than the date the judgment was rendered.

That said, the motion sets out no meaningful grounds to support the view that the judge was mistaken in his finding that the petitioner’s proceedings were improper. The judge found the petitioner to have been in “bad faith” (see, e.g ., paras. [34], [36], [45], [71] and [72]). He found that her conduct served to perpetuate conflict between the parties to no useful end. In addition to the hardship this caused to the other parties, it was also was the source of an inappropriate drain on the resources of the court. [ 8 ] Deference is owed on appeal to this finding of fact by the trial judge.

The motion for leave does not disclose even the beginning of an argument that the judge committed an error that would allow the judgment to be reversed on appeal. In my view, an appeal from the judgment of April 13, 2016 would have no reasonable prospect of success. [ 9 ] The petitioner presented a new document entitled “presentation of date request” at today’s hearing, with new allegations of errors committed by the judge.

None of these constitute viable grounds of appeal from the judgment on abuse of proceedings of April 13, 2016 and, as noted, I do not have the power to grant leave from the November 10, 2015 judgment. [ 10 ] The petitioner stated at today’s hearing that the transcripts would show that the judge intended to review his November judgment on revocation in the April 13, 2016 judgment, and I should allow her the postponement so she could make that argument on the strength of the transcripts once obtained.

The petitioner is mistaken: it is the judgment, and not the transcripts, which form the proper subject-matter of the appeal she seeks. The conclusions of the two judgments are clear: in November, the judge dismissed the motion in revocation. In April, that matter was settled and the judge granted the motion to declare the petitioner’s proceedings and conduct to be improper. FOR THE FOREGOING REASONS , the undersigned: [ 11 ] DISMISSES the motion for a postponement, without legal costs; [ 12 ] DISMISSES the motion for leave to appeal, with legal costs. NICHOLAS KASIRER , J.A.