2022 QCCA 1402, 2022 QCCA 1402

O'Connor c. Giancristofaro 2022 QCCA 1402 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029576-212 (500-11-056049-196) DATE: October 11, 2022 BEFORE THE HONOURABLE PETER KALICHMAN, J.A. DANIEL F. O’CONNOR APPELLANT – Plaintiff v. EziO Giancristofaro Branislava Malobabic RESPONDENTS – Defendants and PUBLICATION OFFICER FOR THE LAND REGISTRY OFFICE OF MONTREAL IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] Daniel F. O’Connor, Respondent before me, appealed from a judgment rendered by the Superior Court (the Honourable Thomas M.

Davis), dismissing his Paulian action against the Applicants, Ezio Giancristofaro and Branislava Malobabic. The hearing of the appeal is set for November 9, 2022. [ 2 ] Upon learning of the identity of the panel set to hear the appeal, the Applicants filed a motion setting out distinct grounds of recusation against each member of the panel without seeking any particular conclusion in regards to the undersigned.

However, at the hearing, they clarified that they are indeed seeking my recusation. [ 3 ] The Applicants maintain that there is a reasonable apprehension that I would be bias given the involvement of the firm in which I was a partner up until my appointment to the Superior Court in 2017. More specifically, they allege that the firm of Irving Mitchell Kalichman (now known as IMK) represented the Respondent and a related company from 2008 to 2018 in a file that is connected to the one at issue on appeal, namely an oppression case brought against Ms.

Malobabic in file 500-11-029529-068, which culminated in a judgment against her rendered by the Honourable Michel A. Pinsonnault, J.S.C.

They contend that IMK “concealed conflicts of interest” of Respondent which had the effect of “enabling” the Paulian action. *** [ 4 ] To determine whether or not to grant the application, I must consider whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would think it more likely than not that I, consciously or unconsciously, will not decide the matter fairly. [1] The apprehension of bias must itself be reasonable in the circumstances of the case. [2] [ 5 ] A reasonable apprehension of bias can arise in a variety of different situations. [3] For instance, a judge who was in private practice should generally not sit on any case in which his former firm was directly involved prior to his appointment.

Accordingly, had I presided over the trial on the oppression action in which the Respondent had been represented by IMK, it might have led to a reasonable apprehension of bias. The Applicants recognize that such a conclusion would not necessarily extend to any other file involving the same parties, but argue that it does in this case. They explain that evidence of the Respondent’s conflicts of interest, which they allege that IMK helped conceal, was not introduced in the oppression case but is now part of the record before this Court.

They will thus argue on appeal that had Justice Pinsonnault had this information, he would have dismissed the oppression action and, as a result, the Paulian action would never have been brought.

In their view, the involvement of my former firm in the oppression case will thus be an issue on appeal and, accordingly, I will, in a sense, be called upon to “judge myself” as they put it. [ 6 ] I do not agree. [ 7 ] Without in any way commenting on the merits of the appeal, the connection that the Applicants point to between the oppression case, which involved my former firm, and the Paulian action, which is the subject of the appeal, is too remote to give rise to a reasonable apprehension of bias.

FOR THESE REASONS, THE UNDERSIGNED: [ 8 ] DISMISSES the application for recusation insofar as the undersigned is concerned, without legal costs. PETER KALICHMAN, J.A. Daniel F. O’Connor Unrepresented Ezio Giancristofaro Branislava Malobabic Unrepresented Date of hearing: October 6, 2022