2016 QCCA 106, 2016 QCCA 106

Plomp c. Joshi 2016 QCCA 106 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025227-158 (500-17-077343-138) MINUTES OF THE HEARING DATE: January 21, 2016 THE HONOURABLE ROBERT M. MAINVILLE, J.A. PETITIONER COUNSEL ELIZABETH PLOMP IN PERSON RESPONDENTS COUNSEL arvind joshi jane mccusker elisabeth dampolias sonia deschenes carlo de stefano denise beauregard zahoor chughtai Mtre MAGALI COURNOYER-PROULX (Lavery, De Billy s.e.n.c.r.l.) (Absente) DESCRIPTION: Motion for leave to appeal an interlocutory judgment rendered on 28 April 2015 by the Honourable Judge Paul Mayer of the Superior court, district of Montreal Clerk: Shirley Thomas Courtroom: RC-18

HEARING 9: 30 Following the hearing on 20 January 2016. The parties were given to be present at the Court this morning. 9: 31 By the Judge: Judgment – see page 3. 9 : 32 Conclusions of the hearing. SHIRLEY THOMAS Clerk BY THE JUDGE JUDGMENT [ 1 ] Mrs.

Elizabeth Plomp seeks leave to appeal a judgment dated 28 th of April 2015 of the Superior Court, District of Montreal (the honourable Paul Mayer) which dismissed her Requête en déclaration d’inhabileté concerning Mtre Magali Cournoyer-Proulx. [ 2 ] The context is set forth in paragraphs 6 to 11 of the judgment of the honourable Paul Mayer dated June 20, 2014 dismissing Mrs.

Plomp’s motion soliciting his recusal from continuing to hear an application to have her declared a vexatious litigant in the Superior court : [6] In August 2008, she took an action against the hospital because she claimed she was fired unjustly pursuant to

Article 124 of the

An Act respecting labour standards . [7] In January 2010, the Commission des normes du travail dismissed her claim. Mrs. Plomp then appealed that decision. It was dismissed by the Commission des normes du travail . Her motion for judicial review before the Superior Court was also dismissed as was her appeal to the Court of Appeal. Permission to appeal to the Supreme Court of Canada was denied. [8] In May 2013, Mrs.

Plomp filed an action in damages before the Superior Court against the defendants on the basis of the very same facts. [9] On November 26 th , Justice Guylène Beaugé granted the defendants’ motion to have her claim dismissed on the basis of prescription and of chose jugée . She postponed the motion to have her declared a vexatious litigant in order to allow Mrs.

Plomp sufficient time to prepare for same. [10] In January 2014, Chief Justice François Rolland, appointed me to manage this file and to dispose of it. [11] As illustrated by the numerous complaints raised hereinabove, the case management period has not been easy. In any event, the date of June 20, 2014 was fixed to hear the matter. [ 3 ] Me Cournoyer-Proulx, who represents the parties opposing Mrs. Plump’s action, subscribed to two affidavits in support of motions made in the course of the litigation, including an affidavit in support of a motion to have Mrs. Plomp declared a quarrelsome litigant. Mrs.

Plomp was of the view that this disqualified Me Cournoyer-Proulx to act in the litigation and she thus brought a motion forward to disqualify her. That motion was dismissed by Justice Mayer. [ 4 ] His judgment dismissing the motion reads as follows:

CONSIDERING the context of this case described in the previous judgement of this Court on June 20, 2014; CONSIDERING the Requête en déclaration d’inhabileté taken against the attorneys of the Defendants; CONSIDERING the defence raised by the Defendants in respect to this motion; CONSIDERING that the motives submitted by Mrs. Plomp are not sufficient in the circumstances of this case given the fundamental right of the Defendants to select the attorneys of their choice; CONSIDERING Mrs. Plomp’s allegations of misconduct against Mtre.

Cournoyer-Proulx has been dismissed by the Barreau du Québec and that she has been authorized by the Barreau du Québec to continue representing the Defendants; CONSIDERING that Mrs. Plomp’s allegations that Mtre Cournoyer-Proulx has had an improper conduct and has violated that law and the Code of Ethics are unsubstantiated; CONSIDERING that the issue of having Mtre. Cournoyer-Proulx testify on her affidavit has been decided by this Court during case management and that it is not a valid motive to disqualify her; CONSIDERING that Mrs.

Plomp had to show “ des raisons graves et contraignantes ” to deprive the Defendants of their choice of attorneys; CONSIDERING that Mtre. Cournoyer-Proulx is not called upon to testify in this hearing; CONSIDERING that Mtre. Cournoyer-Proulx is not in a conflict of interest; CONSIDERING that Mtre. Cournoyer-Proulx does not represent conflicting interests; CONSIDERING that Mrs. Plomp has not been diligent in pursuing this Motion as she filed complaints at the Barreau du Québec against Mtre.

Cournoyer-Proulx as far back as April 2012, yet she only filled her current Requête en déclaration d’inhabileté some two years later, in May 2014, despite the fact that Mtre. Cournoyer-Proulx appeared in this file in May 2013; FOR THESE REASONS, THE COURT : DISMISSES the Petitioner’s Requête en déclaration d’inhabileté; THE WHOLE, WITH COSTS . [ 5 ] Subsequently, on May 4, 2015, Mrs. Plomb was declared by Justice Mayer to be a quarrelsome litigant. Mrs.

Plomb is currently seeking to overturn that judgment in appeal, notably on the basis that she was not allowed to proceed to discovery and examination on the affidavit submitted by Me Cournoyer-Proulx in support of the motion to have her declared quarrelsome [ 6 ] After carefully reviewing the motion material and hearing the representations of Mrs. Plomp, I consider that the best interests of justice under the meaning of

section 9 of the new Code of Civil procedure would not be served by granting leave to appeal, nor would the principle of proportionality set out under

section 18 thereof be respected. [ 7 ] In light of the fact that the hearing before the Superior Court to have Mrs. Plomp declared a quarrelsome litigant has already taken place and that the appeal of the judgment declaring her quarrelsome will, in all likelihood, be heard before the appeal of the judgment refusing to disqualify Me Cournoyer-Proulx, there is little or no practical purpose to the appeal.

In either case, the appeal, if allowed, would be theoretical since Me Cournoyer-Proulx will by then have already made her representations to the courts. [ 8 ] In any event, the issue of the validity of the affidavit subscribed by Me Cournoyer-Proulx and its impact on the decision to declare Mrs. Plomp a quarrelsome litigant will be again submitted to this Court in the context of the appeal of that decision. [ 9 ] FOR THESE REASONS , the undersigned: [ 10 ] DENIES leave to appeal, without legal costs. ROBERT M. MAINVILLE , J.A.