2018 QCCA 1348, 2018 QCCA 1348

Gurman Crevier inc. c. Fonds d'assurance responsabilité professionnelle du Barreau du Québec 2018 QCCA 1348 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027637-180 (500-22-244795-186) MINUTES OF THE HEARING DATE: August 22, 2018 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER COUNSEL GURMAN CREVIER INC.

Mtre SIMON GRANT (Gilbert Séguin Guilbault) RESPONDENT COUNSEL FONDS D’ASSURANCE RESPONSABILITÉ PROFESSIONNELLE DU BARREAU DU QUÉBEC Mtre MARIE-EVE CHARBONNEAU- TRUDEL (Fonds d'assurance responsabilité professionnelle) DESCRIPTION: Application for leave to appeal from a judgment terminating the proceedings rendered on May 16, 2018, by the Honourable Jo Ann Zaor of the Quebec Court, District of Montreal. (Art. 30 al. 2, 357 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 10:38 Commencement of the hearing. Submissions by Mtre Simon Grant. 10:48 Submissions by Mtre Marie-Eve Charbonneau-Trudel. 10:51 Rebuttal by Mtre Grant. 10:52 BY THE JUDGE: Judgment – See page 3. 10:53 End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Applicant seeks to appeal the judgment rendered on May 16, 2018 by the Court of Quebec, District of Montreal (the Honourable Jo Ann Zaor). Applicant’s action to recover the fees incurred to defend itself in other legal proceedings was dismissed on a motion invoking prescription.

Leave to appeal is required pursuant to Article 30(1) C.C.P. [ 2 ] In 2007, Applicant sued a former client for approximately $13,000 for legal fees.

It was met in 2009 by a defense and cross- demand for reimbursement of fees previously paid in an amount of $193,000. [ 3 ] The Respondent insurer refused coverage noting that the policy did not cover liability for reimbursement of fees. [ 4 ] In 2016, given an amendment of the cross-demand (which has not been produced before me), the insurer accepted coverage. [ 5 ] Applicant then, in 2017, instituted these proceedings to recover fees of $30,360.64 incurred in defending itself in the action up to the point of the 2016 amendment of the cross-demand. [ 6 ] The judge decided that extinctive prescription was acquired in 2012 - i.e. three years after the initial cross-demand.

She also did not find in the record any evidence of renunciation of the prescription acquired. [ 7 ] Applicant alleges questions of principle such as renunciation of prescription but this gives rise to a mixed question of fact and law. [ 8 ] Applicant also asks “can the insurer raise extinctive prescription against its obligation to assume the insured’s defense, while, at the same time, assuming his defense?” [ 9 ] However, the denial of coverage in 2009 until the amendment of the cross-claim in 2016 was clear and non-equivocal and based on a clause of the insurance policy.

The acceptance of coverage in 2016 was based on new facts and presumably a cause of action other than the recovery of fees. The issue as posed in Applicant’s question is based on a false premise. [ 10 ] Applicant further alleges that “the issue of the extinctive prescription regarding the obligation to defend has given rise to conflicting judicial decisions”. However, no such conflicting decisions have been submitted to the undersigned.

The decision submitted is not conflicting but rather reflects a different outcome based on different facts. [1] There was no renunciation by agreeing to defend and pay fees arising from a new cause of action, which the insurer made clear in its letter of March 21, 2016. [ 11 ] Accordingly, I see no element in the application before me that satisfies the criteria for leave in

Article 30 C.C.P. FOR ALL THESE REASONS, THE UNDERSIGNED: [ 12 ] DISMISSES the Application for leave to appeal a judgment that terminates a proceeding, with legal costs.

MARK SCHRAGER , J.A.