r v., 2012 QCCA 1044

J.N. c. Company A 2012 QCCA 1044 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022280-119 (500-17-058531-107) DATE: JUNE 7, 2012 PRESIDING: THE HONOURABLE ALLAN R. HILTON, J.A. J.N. PETITIONER – Petitioner v. [COMPANY A] and SOCIÉTÉ DE L'ASSURANCE AUTOMOBILE DU QUÉBEC RESPONDENTS – Respondents and COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] I have before me the application of J.N. by which he seeks leave to appeal a judgment of the Superior Court rendered by the Honourable Mr. Justice Jean-Yves Lalonde on November 24, 2011 that dismissed his amended motion to revoke a judgment of the Superior Court based on

article 483 C.C.P . The latter judgment, rendered by the Honourable Madam Justice Pepita Capriolo on August 1, 2011, dismissed his motion to judicially review a decision of the Administrative Tribunal of Quebec. That decision confirmed a decision of the Société de l'assurance automobile du Québec that denied Mr. N. indemnification for significant visual impairment that he claimed was the direct result of an automobile accident on February 25, 2003. [ 2 ] In order to appreciate the circumstances that bring Mr.

N. before me, I believe it important to set out in detail the various administrative decisions and Superior Court judgments that have considered his claim. Accordingly, I have consulted the Superior Court file. [ 3 ] On April 6, 2006, the SAAQ refused to recognize a causal relationship between the automobile accident and the bilateral macular degeneration from which Mr. N. suffers.

On December 7, 2007, the ATQ confirmed this decision. [1] The conclusion of the ATQ is encapsulated in the following extract from its decision: [42] Le Tribunal doit déterminer la probabilité que l’accident de la route soit le premier responsable des dommages oculaires.

Il ne lui incombe pas de déterminer la cause de la pathologie que tous les experts ont observée. [43] L’hypothèse d’un traumatisme sévère demeure, mais elle ne découle pas de l’événement auquel on voudrait le voir rattacher. [44] La condition du requérant est déplorable, mais il ne revient pas à l’intimée [2] d’en assumer les frais, puisqu’il est improbable que les lésions bénignes observées le jour de l’accident soient la cause du développement des cicatrices maculaires. [ 4 ] Mr. N. then initiated judicial review proceedings in the Superior Court, which came on for hearing before Tingley, J.

To put it mildly, that learned judge was merciless in his criticism of the ATQ's decision, and its failure to provide Mr. N. with a proper hearing before decision makers who understood the English language. His conclusion was to grant Mr.

N.'s motion, set aside the impugned decision, and order a new hearing before an ATQ panel whose members were conversant in the English language. [3] [ 5 ] Tingley, J. characterized the ATQ decision as unreasonable, irrational, replete with irregularities and even bizarre in several respects, as the following lengthy extract shows: [18] Of the five ophthalmologists who examined Mr. N., only Dr. Gagnon concluded that he doubted – nous ne croyons pas – there was any relation of cause and effect between the accident and the signs and symptoms exhibited by Mr. N.. All the rest were either "convinced" (Dr.

Chen) or persuaded by deductive analysis that Mr. N.'s ocular findings (loss of vision) were "consistent with previous blunt injury to the ocular region such as can occur after a motor vehicle accident" (Dr. Cheema).

[19] The TAQ relies for its conclusion on statements made in "documents contemporains " - the police report (MC-2), the notes of nurses in the emergency room at the hospital (MC-3) and the report of the ambulance technician (MC-4) - all of which are hearsay . None of the statements relied upon were ever verified or contextualised by those who made them . [20] Mr. N. says he lost consciousness immediately after the accident and only regained consciousness once he was in the ambulance. Whoever prepared the police report never interviewed Mr. N., at the accident site or thereafter.

There is nothing in the police report to indicate that Mr. N.'s car struck the median cement wall at low speed. This appears for the first time in the report of the ambulance technician. It seems to have been treated as gospel by Dr. Gagnon and the TAQ panel to support their conclusion that Mr. N. did not suffer a trauma from his accident of sufficient severity to cause his loss of vision . [21] This finding is bizarre .

It is based on hearsay , the absence of any mention in the above mentioned reports of a trauma to the head and a total disregard of the expertise of four ophthalmologists, all of whom can only explain Mr. N.'s loss of vision at his age by inferring a trauma to the head during the accident. This inference, on the other hand, is supported inter alia by a broken tooth, four loose teeth and the evidence of macular scarring of the retina, albeit only discovered some six months after the accident, when Mr. N.. was first seen by an opththalmologist . [22] Metropolitan Boulevard is an expressway.

Traffic moves along it at relatively high speeds. What then is one to make of the hearsay statement "frappe muret de ciment basse vitesse" that appears in an ambulance technician's report. Surely hearsay should not serve as the cornerstone to deny Mr. N.'s claim, a claim supported by the expert opinions of four ophthalmologists . [23] The Decision of the TAQ begs to be reviewed and the matter reheard by a new panel that is more conversant in the English language than that demonstrated by Dr. Ducharme and Me Beaurivage during the hearing. Dr.

Gagnon spent much of his time as a witness translating the opinions of the English speaking experts for the panel . [24] Dr. Gagnon agrees with the other ophthalmologists that Mr. N. is legally blind and cannot carry on the work he did prior to his accident, "ou tout autre emploi". He agrees as well that there is no treatment currently available to remedy or ameliorate this condition. However, he does not think that Mr. N. sustained a trauma to his head as a result of the accident to cause his loss of vision.

He too, it seems, relies on the ambulance technician's report for this finding. [25] It seems evident from paragraph [41] of the TAQ decision that the panel relied for its decision largely on the absence of things – no documented wound to the head or eyes, no wounds on the upper body (thoracic region), no actual observation by any doctor of "un oedema de Berlin" coupled with its erroneous conclusion that the accident "est survenu à basse vitesse" and its observation that if the accident had caused damage to the retinal region, Mr. N. would have complained of it.

He did complain early on of weakening eyesight, as noted in paragraph [6] above, as well as recurring dizziness, blind spots and headaches (Transcript, p. 170 to 177]. [26] The panel gave no credence whatever to the findings of macular scarring observed by all the experts. It did not even mention this finding in its analysis, nor did it pay any attention to the ineluctable conclusions that all of Mr. N.'s experts drew from this finding; lesions to the retinas presupposing a blunt trauma of the kind that would result from the accident. Unhappily, blunt traumas don't produce scars that can be documented.

The root cause of Mr. N.'s loss of vision was totally disregarded and attributed to something (we do not know what) other than the accident . [27] Again, although no mention is made of it in its decision, one might be forgiven for suspecting that the panel thought Mr. N. exaggerated his symptoms and the events of the accident. He was the only witness to it, as might be expected from a hit and run incident occurring on a viaduct highway without pedestrian sidewalks in the dark. [28] Any such predisposition may well have led the panel to belittle or disbelieve certain sequelae of the accident, such as Mr.

N.'s loss of consciousness immediately after impact, the loosening of four teeth and the breaking of one of them, the deployment or even the existence of an airbag in a 1989 Mercury. Mr. N. recalls being told by one of the ambulance technicians that the airbag had saved his life (Transcript, p. 218-219). [29] The Court has already characterized certain findings of the TAQ as bizarre. These findings in turn led to a decision that is irrational and unreasonable, relying as it does on things absent from the record, misconstruing hearsay statements in the evidence and ignoring the findings of Mr.N.'s four experts.

It is in this context that the panel has exceeded its jurisdiction . [30] These errors (serious irregularities), if allowed to subsist, will clearly result in an injustice, given that there is no appeal from the decision of the TAQ. [31] The bizarre findings of Dr. Gagnon and of the TAQ panel relate to the circumstances of the accident itself and not to any controversy over medical opinions . All of the medical specialists acknowledge the presence of macular scarring, first seen by one of them some six months after the accident.

Four of the experts conclude the scarring could have occurred from a "severe" accident and one concluded otherwise assuming an accident "à basse vitesse". In this context, the degree of deference due the panel is lowered, particularly when, as in this case, the opinion of the TAQ is based on unverified and probably unverifiable hearsay . [References omitted. Emphasis added.] [ 6 ] For the new hearing before the ATQ, Mr. N. was subject to expert examinations by Dr. David Lederer on his behalf and Dr. Pierre Gauvin on behalf of the SAAQ.

The latter also introduced documents from Isabelle Labrecque, an optometrist, which showed Mr. N. had been followed in optometry as of the mid-1990s and that his vision had been progressively deteriorating since then. It was suggested he might have been suffering from macular degeneration from as early as 1996. Whatever the reason may have been, Isabelle Labrecque was not called to testify at the second ATQ hearing. As we will see, the fact that she did not testify may have had an important bearing on the outcome. [ 7 ] At the second hearing, Mr.

N. contended that the documents so introduced by the SAAQ were forged and that he had never met Isabelle Labreque.

[ 8 ] The ATQ rendered its second decision on April 7, 2010. [4] Some of the bizarre findings so eloquently denounced by Tingley, J. were nevertheless repeated. For example, Dr. Gauvin, who testified on behalf of the SAAQ, again referred to the report of the ambulance technician and nurse to say that the collision impact was at a low level, and that there had been no facial trauma (despite evidence to the contrary in the form of a broken tooth and four loose teeth).

To compound matters, the ATQ decision again took account of this evidence in reaching its conclusion to affirm the SAAQ decision. [ 9 ] Nevertheless, Dr. Gauvin added that even without these factors, he was still of the view that Mr. N.'s visual impairment was not caused by traumatic shock, but rather by a pre-existing condition that developed progressively. His hypothesis in this respect was confirmed by the new evidence that had been introduced at the second ATAQ hearing in the form of Mr. N.'s consultations in optometry with Isabelle Labrecque. [ 10 ] The ATQ carefully examined Mr.

N.'s claims that these documents had been forged and that he had never met Isabelle Labreque. Here is what the decision says in that respect: [148] À cet égard, le requérant témoigne n’avoir jamais rencontré madame Isabelle Labrecque. Toutefois, le Tribunal ne peut donner crédit à cette assertion, car la preuve documentaire contemporaine à l’accident d’automobile ne la supporte pas. [149] En effet, dans un document du 24 avril 2003, soit quelque deux mois suivant l’accident d’automobile, le requérant transmet à son agente d’indemnisation une demande de remboursement de lunettes. Il demande à ce que madame L...

M... soit informée de la manière de compléter le formulaire et que soit acheminé à l’optométriste le formulaire approprié; il identifie alors madame Isabelle Labrecque. [150] Cet envoi donnera lieu à une réponse de madame L... M..., de [la clinique d’optométrie A], à l’agent d’indemnisation, monsieur Christian Paré, le 4 juillet 2003. Il s’agit de la même personne (L... M...), qui est administratrice (Office Administrator).

Le numéro de dossier est identique dans les deux documents, de même que le numéro de téléphone du bureau d’optométristes, qui est d’ailleurs rapporté par le requérant, dans sa lettre du 24 avril 2003. [151] À l’évidence, le requérant a rencontré madame Labrecque puisqu’il est capable d’identifier son nom, le numéro de téléphone du bureau d’optométristes ainsi que le nom de la personne qui est « Office Administrator ». [152] Il appert invraisemblable pour le Tribunal que le nom de madame Labrecque soit un choix aléatoire pour justifier une demande de remboursement et que celle-ci se soit limitée à renouveler une prescription de lunettes. [153] La preuve dont le Tribunal dispose démontre plutôt que le 12 juin 2003, madame Labrecque a prescrit de nouvelles lunettes au requérant, et que le 25 juin 2003, elle a demandé le remboursement d’un examen de la vue, lequel a effectivement été réalisé et a donné lieu à la référence au Dr Silver, et à la cascade de consultations qui a suivi. [154] Ainsi, nonobstant le témoignage du requérant, la preuve documentaire démontre que ce dernier a consulté madame Labrecque avant de consulter Dr Silver. [155] Il l’a également rencontrée à plusieurs reprises avant l’accident d’automobile du 25 février 2003.

La dégénérescence maculaire avait déjà été diagnostiquée avant cet accident de voiture et avant l’évaluation de Dr Silver. [156] À cet égard, le document produit par Dr Silver, le 27 octobre 2009, ne vient pas invalider la note de madame Labrecque du 8 octobre 1996 dans laquelle elle indique que le requérant a été vu par Dr Silver pour le problème à la macula. Dr Silver n’y écrit pas qu’il n’a pas vu le requérant avant le 1er août 2003.

Il se limite à mentionner qu’il n’a pas de dossier sur le requérant et qu’il n’en a pas retrouvé. [157] Le Tribunal réitère qu’au moment des consultations avec madame Labrecque, il était question de soins envers le requérant et nullement de documenter un dossier dans un but de contestation et d’indemnisation. [References omitted.] [ 11 ] The ATQ emphasized that Mr. N.'s expert reports, which posit that his visual impairment was caused by the automobile accident, are based on the premises that he did not have impaired vision before the accident and displayed no signs of macular degeneration.

Since these premises were shown to be inaccurate, the experts' diagnoses could not be considered reliable: [158] Ainsi, nonobstant les évaluations des experts du requérant et de la finesse de l’expertise des rétinologues Chen et Lederer, leurs prémisses s’avèrent inexactes. En conséquence, leurs conclusions ne s’avèrent pas fiables.

La preuve médicale prépondérante démontre plutôt des antécédents de dégénérescence maculaire et de multiples évaluations oculaires/visuelles antérieures à l’accident du 25 février 2003. [159] En l’espèce, comme les experts du requérant fondent leur diagnostic d’œdème de Berlin sur des prémisses inexactes, ce diagnostic a figure d’hypothèse pour expliquer à postériori une situation ophtalmique sévère et incapacitante dans un ciel clair, outre l’accident d’automobile. […] [169] Ainsi, les experts qui ont examiné le requérant ont fondé leur diagnostic d’œdème de Berlin sur les dires de ce dernier.

Seul Dr Lederer a consulté le dossier du requérant. Toutefois, même lui ignorait les antécédents du requérant au point de vue ophtalmologique, ce qui vient vicier ses conclusions . Au surplus, il ne fait pas état des documents qu’il a consultés pour étayer son opinion, de telle sorte qu’il n’est pas possible d’apprécier si les informations qu’il détenait étaient complètes.

À tout le moins, il appert de son expertise qu’il ne détenait pas l’expertise de Dr Gauvin, mais plutôt celle de Dr Gagnon . [170] Les ophtalmologistes et rétinologues qui ont évalué le requérant, aussi raffinée soit leur expertise respective, ont fondé leur

diagnostic sur des éléments qui ne sont pas corroborés par la preuve médicale contemporaine au fait accidentel, ni sur la preuve médicale prépondérante en regard des antécédents ophtalmologiques du requérant. Leur diagnostic de contusion de la rétine/œdème de Berlin acquiert ainsi le statut d’hypothèse et ne peut être retenu par le Tribunal comme étant la pathologie qui est responsable de la dégénérescence maculaire, des cicatrices maculaires et de la cécité légale du requérant. [Emphasis added.] [ 12 ] Accordingly, the ATQ again confirmed the SAAQ decision to deny Mr.

N. indemnification arising out of the automobile accident. Mr. N. therefore returned to the Superior Court with another motion to judicially review the second ATQ decision. [ 13 ] This time, the matter came on for hearing before Capriolo, J. Her oral judgment dismissed the motion. [5] She did not consider that the ATQ erred in taking account of the same kind of hearsay evidence as it did in its first decision that Tingley, J. had criticized: [9] The first argument was that Dr. Gauvin based his opinion on the wrong premises.

His premises were that the accident took place at a low speed, that there was no facial trauma and that there hadn't been sufficient mention of vision impairment immediately after the accident. Now, again, it is not for me to evaluate that evidence but to see whether the Tribunal evaluated it and analyzed it in a rational, intelligent way. The Tribunal decided that the hospital notes and the ambulance notes regarding the low speed of the impact were relevant.

Starting on paragraph 161 of the decision, the Tribunal explained why the ambulance notes were reliable evidence and pointed out that the emergency room doctor's notes made no reference to any facial trauma. The Tribunal did consider the loss of a tooth, and mentioned the cranial trauma. Overall, however, it concluded that the medical evidence from the emergency room and the ambulance drivers was compatible with Dr. Gauvin's premises . [Emphasis added.] [ 14 ] Nevertheless, the rest of her analysis did take note of expert evidence for which, unarguably, there was a proper foundation: [11] Finally, Dr.

Gauvin was specifically asked: What if it was proven that your three premises were wrong? Would you still hold the same opinion? And he said: Yes , and he gave reasons for that.

He added: I would have come to the same conclusion because of the location of the pigmentation on the eye, which is not, according to him, in accordance with a post-traumatic macular degeneration. [ 15 ] She also expressed the opinion that the conclusion of the ATQ that the documents emanating from Isabelle Labrecque had not been forged was reasonable: [13] Now, we come to the second argument, the inherent contradictions and difficulties with P-21. I have to agree that the papers are confused.

On the other hand, again, the Tribunal looked at these, from paragraph 138 to paragraph 157 of the decision, and analyzed the likelihood of these papers having been faked, a possibility that had been raised during the hearing. The Tribunal had to determine whether it was more likely than not that they were faked, and came to the conclusion that it didn't make any sense that they would have been faked, because there was no interest on the part of Mr. Hecht or Madame Labrecque or Dr. Silver to fake these documents. Normally, if somebody fakes a document, it is because they have an interest in the forgery.

If somebody fakes a will, it is likely because he is the beneficiary under the faked will. There is no reason why Mr. Hecht, Madame Labrecque or Dr.

Silver would fake these documents. [14] There was also, and this was picked-up by the Tribunal, a document which came from you [6] directly, which was a request for reimbursement for glasses in which you gave Madame Labrecque's information (page 17 of P-35.) which supported the general tenor of P-21 . [15] So, it was therefore not unreasonable in any way for the Tribunal to choose to allow this evidence, which was a very great importance in establishing the relationship between the present condition and the accident . [Emphasis added.] [ 16 ] As to whether the accident could have aggravated a pre-existing condition, this was a new question for the ATQ to consider, since all of Mr.

N.'s experts were of the view that he had no pre-existing visual difficulties. Here is what Capriolo, J. said in this respect: [16] Which brings me to the third point. Was it unreasonable for the Tribunal not to conclude, having already established that there was a prior condition, that the accident had aggravated this pre-existing condition? I cannot come to the conclusion that it was unreasonable for several reasons .

The only doctor who testified or who produced any expertise and who was aware of the documents contained in P-21, and of the pre-existent condition, specifically said that the condition could not be aggravated by an accident. The Tribunal did not have the benefit of any other expertise on this point. Your attorney at the time did not consider it useful or necessary to have any of the other experts, Dr. Lederer, Dr. Fichman, Dr. Silver or Dr. Cheema come to testify as to what their opinion would have been had they known of the pre-existing condition .

The Tribunal very specifically mentioned what these doctors had said and the premise to their own conclusions. At paragraph 50 the Tribunal pointed out that Dr. Silver had said that it would have been very helpful to know if there was any prior condition and that you had told him that you had not seen any optometrist for many years prior to the accident. Dr. Fichman said there was no past ocular history. It is the same thing for Dr. Cheema, as mentioned in paragraph 59 of the decision . [17] It is obvious that the Tribunal did not have any choice.

All the experts that you have presented previously took it for granted that there was no prior history of macular degeneration. The only one who was aware of the history and who came to testify was Dr. Gauvin . The Tribunal not only did not act unreasonably but acted in the only reasonable way, in the circumstances, in following the opinion of the doctor who had knowledge of the entire medical history . [18] The fourth subsidiary argument is that the Tribunal should have used more a liberal

interpretation of the law. However, a liberal

interpretation of the law does not mean the Tribunal has to necessarily interpret every fact in favour of the petitioner. That in itself could be unreasonable. The Tribunal took note of the many inconsistencies in your testimony and I will refer you to paragraph 24 to paragraphs

33, 40, 64 and 102, in which your description of events was in contradiction with other evidence. Credibility is at the essence of the jurisdiction of a specialized tribunal. [Emphasis added.] [ 17 ] Mr. N. did not seek leave to appeal the judgment of Capriolo, J.

His attack against it now by way of revocation is threefold. [ 18 ] First, he considers that the hearing before Capriolo, J. amounted to a flagrant injustice because of the manner in which she limited the questions to be considered, coupled with her acknowledgment that she had not read all of the exhibits that accompanied his motion. [7] [ 19 ] I point out immediately that this argument was not raised in Mr. N.'s amended motion in revocation that Lalonde, J. dismissed for which he seeks leave to appeal.

Such an argument could have formed the basis of an application for leave to appeal the judgment of Capriolo, J., before a judge in chambers of this Court, but Mr. N. presented no such motion on a timely basis. More than six months have elapsed since her judgment, which means that it is now too late for him to do so before a panel of the Court. [8] In principle, this Court should not entertain leave applications on subjects that have never been properly put before trial judges.

In any event, there are no materials properly before me that could sustain such a submission even if it had been one presented to the motions judge. I therefore cannot consider this first ground of attack as being one for which I should grant leave to appeal. [ 20 ] Second, he seeks to introduce a letter dated August 27, 2009 from the medical archivist of the Jewish General Hospital that shows he was never seen in the ophthalmology department of that hospital. He alleged that the document was in the possession of the SAAQ, but it failed to disclose it at any of the hearings before the ATQ. Mr.

N. alleges in his amended motion in revocation that the existence of this document confirms his credibility, since he had testified before the ATQ that he had never been seen at the Jewish General Hospital. [ 21 ] Lalonde, J. considered this submission and found it wanting. First, the document is not "new" in the sense that it predates the second hearing of the ATQ, and Mr. N. does not contend that he could not have discovered it before then with the exercise of reasonable diligence.

In any event, it would only have been of peripheral importance in assessing his credibility in light of the other documentary elements that were before the ATQ. [ 22 ] This proposed ground of appeal is not one that would justify a hearing on the merits in this Court and I accordingly reject it. [ 23 ] Third, he alleges information contained in what he describes as an inquiry report from the syndic's office of the Order of Optometrists dated December 21, 2011. The report rejects his request that the syndic initiate disciplinary proceedings against Isabelle Labrecque. This report, which Mr.

N. alleged in his motion for leave to appeal and which he subsequently sent to me and counsel for the SAAQ at my request, post-dates the judgment of Lalonde, J. Accordingly, its content was not alleged in the amended motion in revocation that the motions judge adjudicated. [ 24 ] According to Mr. N., the content of the report essentially challenges the integrity of any documentation emanating from Isabelle Labrecque, not the least of which is because it says she has no memory of treating him or preparing any documentation respecting him.

In addition, the report states that Isabelle Labrecque only became an optometrist in 2000. [ 25 ] This certainly raises considerable doubt as to the accuracy of the finding of the ATQ at paragraph [156] of its second decision when it speaks of "[…] la note de madame Labrecque du 8 octobre 1996 dans laquelle elle indique que le requérant a été vu par le Dr Silver pour le problème à la macule." [9] How could such a note exist when Isabelle Labrecque was not even an optometrist in 1996? There is no obvious answer, and the report suggests none.

Another documentary inconsistency arises when Isabelle Labrecque supposedly prescribes glasses for Mr. N. on June 12, 2003, but only examines him almost two weeks later on June 25, 2003. [ 26 ] The report nevertheless mentions the existence of a professional relationship between Isabelle Labrecque and Mr. N., since it contains her acknowledgement of the authenticity of her handwriting and signature on a document relating to Mr. N. in 2003. Mr.

N.'s fundamental contention that he never saw Isabelle Labrecque thus appears to be unsupported by at least some of the evidence on which the ATQ relied, although the inconsistencies that I have mentioned in paragraph [25] remain both troubling and unexplained. [ 27 ] Without the formal introduction of the report, I cannot conclude that I should grant leave to appeal the judgment dismissing Mr. N.'s motion in revocation of judgment. If I were inclined to grant leave, it would be limited to the third issue I have just discussed, keeping in mind the ground of revocation contained in paragraph 7 of

article 483 C.C.P. relating to the discovery of new evidence since the judgment. [ 28 ] To do so, however, would require Mr. N. to formally introduce the letter from the Syndic of the Order of Optometrists into the record as an exhibit to his motion for leave to appeal the judgment of Lalonde, J. by presenting a motion pursuant to paragraph 2 of

article 509 C.C.P . for the adduction of indispensable new evidence. As a judge sitting alone, however, I do not have the jurisdiction to entertain such a motion, although it still can be presented to a panel of the Court. [ 29 ] In my opinion, if the letter from the Syndic is properly introduced into the record in the manner I have just described, there is an arguable basis to grant Mr. N.'s motion for leave to appeal, but only on the third ground I have described. I therefore consider that the proper and fairest course to adopt is to defer Mr.

N.'s motion for leave to appeal to a panel of the Court, to be adjudicated at the same time as a separate motion he must serve on a timely basis and make presentable before the Court on Thursday, July 5, 2012 or such other date as may be established by the Master of the Rolls. [ 30 ] Such a deferral also has the advantage of allowing counsel for the SAAQ to oppose the introduction of the report, if he is so instructed.

In the event the Court authorizes the production of the report, counsel for the SAAQ will also have the opportunity to argue why its contents should not give rise to leave being granted, a subject that was not touched upon before me. [ 31 ] Mr. N. finds himself in a procedural morass that is not of his making. In light of the status of the file as it will stand following

the order I will enter, he would be well-advised to engage competent counsel to represent him in the presentation of the new motion and the further argument of his motion for leave to appeal. [ 32 ] I therefore defer Mr. N.'s motion for leave to appeal to the panel of the Court hearing motions at 9:30am on Thursday, July 5, 2012 or such other date as may be established by the Master of the Rolls. I further require that he present for adjudication at the same time a separate motion pursuant to paragraph 2 of

article 509 C.C.P ., served on a timely basis, for the introduction of the letter from the Syndic of the Order of Optometrists dated December 21, 2011 into the record of this Court as an exhibit to his motion for leave to appeal, the whole without costs. ALLAN R. HILTON, J.A. J.N. In person Mtre Julien Gaudet-Lachapelle RAICHE, PINEAULT, TOUCHETTE For the respondents Date of hearing: April 26, 2012