2013 QCCA 1270, 2013 QCCA 1270

Montréal (Ville de) c. Perez 2013 QCCA 1270 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL No: 500-09-023681-133 (500-17-044709-080) PROCÈS-VERBAL D'AUDIENCE DATE: Le 17 juillet 2013 L’HONORABLE ALLAN R. HILTON, J.C.A.

PARTIE REQUÉRANTE AVOCAT VILLE DE MONTRÉAL NICOLAS BÉLANGER NICOLAS MICHAUD Me Chantale Massé DAGENAIS, GAGNIER, BIRON

PARTIE INTIMÉE AVOCAT JOSEPH PEREZ NELLY SULTAN PEREZ Me Julius Grey GREY & CASGRAIN S.E.N.C. REQUÊTE POUR PERMISSION D'APPELER (Art. 26 et 494 C.p.

c) Greffière: Asma Berrak Salle: RC.18

AUDITION 11 h 56 : Début de l’audition. Identification des procureurs. 11 h 56 : Argumentation de Me Massé. 12 h 18 : Argumentation de Me Grey. 12 h 38 : Réplique de Me Massé. 12 h 40 : Fin de l'argumentation de part et d'autre. 12 h 40 : Jugement-voir page 3. 12 h 40 : La conclusion du jugement a été prononcée séance tenante, quant aux motifs, ceux-ci suivront dans les prochains jours. 12 h 41 : Fin de l'audition.

Asma Berrak Greffière JUDGMENT [ 1 ] At the conclusion of the hearing of the applicants' motion for leave to appeal a judgment of the Superior Court rendered by the Honourable Madam Justice Marie-France Courville that granted in part the claim in damages of the two respondents, I advised counsel that the application was dismissed with costs, with reasons to follow.

These are those reasons. [ 2 ] The respondents' claim in the Superior Court, and that of their son that was also maintained in part but for which the applicants did not seek leave to appeal, arose out of their arrest in the early morning hours of May 16, 2008 by police officers Nicolas Bélanger and Nicolas Michaud. The latter two police officers had attended at their residence to investigate the possible involvement of their son Nadav Perez in an armed assault with a baseball bat.

Nadav co-operated fully in allowing the police officers to inspect the interior and trunk of the car that had been identified as the one used by the assailant to leave the scene. They were searching for the baseball bat that may have been used in the armed assault, but it was not to be found. When one of them also sought to inspect the locked glove compartment and unilaterally undertook measures to do so, Nadav withdrew his consent to the search, and insisted that the police officers obtain a search warrant if they wished to inspect it.

His obvious point, which could not have been lost on the police officers, was that a baseball bat could not possibly be located in a glove compartment. [ 3 ] I think it may be safely said that the unwarranted desire to search the glove compartment is what provoked what was to occur thereafter. It is at this point that matters began to quickly degenerate, first by the appearance on the scene of Nadav's mother Nelly Perez and then his father Joseph Perez.

At no time, however, did the police officers ever seek a search warrant for the glove compartment, let alone obtain one. [ 4 ] As the result of heated exchanges between the Perez' and the police officers, who felt they were being obstructed in the conduct of their investigation, all three were arrested and taken to a police station where they were booked and eventually released. No charges were ever proffered against Nadav, whether for armed assault or otherwise, however, both Nelly Perez and Joseph Perez were charged with the

summary conviction offence of obstructing a police officer in the execution of his duty contrary to paragraph 129(

a) Cr.C. [ 5 ] In an elaborate judgment, Laliberté, J.C.M. acquitted them, essentially on the basis that the Crown had not established the required mens rea of the offence as charged. [ 6 ] Prior to the trial in the Municipal Court, the civil proceedings that gave rise to the judgment of Courville, J. were launched. By the time of the trial, she had the benefit of the judgment of Laliberté, J. as well as a transcript of the testimony before him.

She also heard testimony from the various participants to the events in issue. [ 7 ] The judgment of Courville, J. maintained the action of the three plaintiffs in part on the basis that their arrest was both abusive and illegal, but established different amounts of damages for each of them based on her assessment of their respective losses.

[ 8 ] Nadav was awarded the capital amount of $10,000, and as I have mentioned, the applicants are not seeking leave to appeal that condemnation. [ 9 ] Nelly Perez was awarded a total of $33,996.99, comprised of $25,000 for moral damages, $255 to reimburse the cost of consulting a psychologist, and $8,741.99 to reimburse her for the cost of legal fees incurred for her defence in the Municipal Court. [ 10 ] Joseph Perez was awarded $28,741.99, comprised of $20,000 for moral damages and $8,741.99 for the reimbursement of his legal costs in the Municipal Court. [ 11 ] The applicants sought leave to appeal the award of $8,741.99 to Nelly Perez for her legal costs, while acknowledging their responsibility for the balance of the award to her.

They also sought the outright dismissal of the claim of Joseph Perez. [ 12 ] I concluded that this was not an appropriate case to grant leave for the following reasons. [ 13 ] First, while there may be divergences between the findings of Laliberté, J.C.M. and Courville, J. insofar as the interaction between Joseph Perez and Officer Michaud, the comment of Laliberté, J. in paragraph [107] of his judgment to the effect that the evidence established his good faith beyond a reasonable doubt and that he had probable cause to arrest Mr.

Perez is obiter dicta and therefore not at all binding, to the extent it could be, on Courville, J. She was perfectly free as a result to reach her own conclusions in this respect based on the testimony she heard. This included the fact that Mr. Perez was reacting to what he had observed was happening to his wife, who had been struck by a police officer, and to his son, who was being placed in a physical position to facilitate the application of handcuffs.

I note as well that Nadav had what must have been interpreted as the temerity to call 9-1-1 to advise of the inappropriate conduct of the police officers and to request the presence on the scene of someone more senior than them. [ 14 ] Were leave to be granted, the matter would be in the main a question of determining whether the applicants could show a palpable and overriding error in the factual assessments of the trial judge.

I do not see how such a claim could succeed given the careful reasoning of Courville, J. [ 15 ] As far as the issue of the propriety of awarding the reimbursement of legal costs is concerned, the applicants argue that there was no evidence of fraudulent conduct on the part of the police officers that led to the prosecution of Joseph Perez and Nelly Perez.

In that respect, they may be right, and I acknowledge that they may have had an arguable though difficult case to present in appeal. [ 16 ] The total principal amount in issue for this head of damages that the trial judge awarded to the two respondents, however, is less than $17,500.

In such circumstances, given the resources of the City of Montreal compared to those of the respondents, such an award would be essentially eaten up by the cost of defending the appeal, and they would be left with precious little from the judgment of the Superior Court, if anything, even if they succeeded in having the appeal dismissed. [ 17 ] In such circumstances, I am entitled to take account of the principle of proportionality found in

article 4.2 C.C.P ., as my colleagues on this Court have done in cases such as Société en commandite Les bois de Pierrefonds v. Domaine de parc Cloverdale , [1] Celliers Rosyma inc. v. Urgel Charrette Transport inc. , [2] and Re/Max Action (1992) inc. v. Dagan . [3] [ 18 ] Moreover, I am not convinced that this case falls into the category of those that, to use the words of

article 26 C.C.P ., "raise a question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents". The mere argument that the judgment of a trial court incorrectly disposes of litigation for which leave is required is insufficient to obtain leave if one of the foregoing conditions is not satisfied.

It is not the role of this Court to correct every error of a trial court brought to its attention, just as it is not the role of the Supreme Court of Canada to correct every error of a provincial appellate court or the Federal Court of Appeal brought to its attention. [ 19 ] The motion for leave to appeal was accordingly dismissed with costs. ALLAN R. HILTON, J.A.