2018 QCCA 2225, 2018 QCCA 2225

A3.F. c. A.F. 2018 QCCA 2225 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027979-186 (500-14-054484-183) MINUTES OF THE HEARING DATE: December 18, 2018 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL A3. F. Mtre ANN MARGARET SODEN, Ad. E. (Me Ann Margaret Soden) Mtre FRANÇOIS DUPIN, Ad. E. (François Dupin) RESPONDENTS COUNSEL A. F. S. F. Mtre ANTONIN ROY ( Spiegel, Sohmer, inc.) Impleaded Parties COUNSEL X. H. Mtre KARL CHABOT ( De Grandpré Chait s.e.n.c.r.l. )

CURATEUR PUBLIC DU QUÉBEC Mtre JEAN-PHILIPPE CHÊNEVERT ( Le Curateur public du Québec ) C. G. AL. G. ABSENT DESCRIPTION: Application for authorization and de bene esse notice to add an attorney of record. (Art. 25, 49 C.C.P. , 59 et s. R.C.P. , 257 C.C.Q. ) Application for leave to appeal from a judgment rendered in the course of the proceedings on December 6, 2018 by the Honourable Justice Donald Bisson of the Superior Court, District of Montreal . (Art. 32, 31(2), 357, 391 et seq.

C.C.P. , 23, 24 Charter of Rights and Freedoms , 256, 257, 2166 al. 2, 2167 al.1 C.C.Q. ) Clerk: Mihary Andrianaivo Courtroom: RC.18 HEARING 9:32 Call of the roll. Identification of Counsel. Exchanges between the Judge, on one hand and Mtre Ann Margaret Soden and Mtre Antonin Roy, on the other hand. 9:37 Address by Mtre Jean-Philippe Chênevert. 9:39 Recess. 11:40 Resumption of the hearing. The application by the Petitioner for authoization and de bene esse notice to add an attorney of record is not contested.

BY THE JUDGE : See page 4. 11:41 Address by Mtre Ann Soden. 11:43 Submissions by Mtre François Dupin. 12:15 Submissions by Mtre Karl Chabot. 12:19 Submissions by Mtre Chênevert. 12:26 Submissions by Mtre Roy. 12:38 Exchanges between the Judge and Mtre Soden. 12:39 Rebuttal by Mtre Dupin. 12:42 Address by Mtre Chabot. 12:44 Address by Mtre Chênevert. 12:46 Exchanges between the Judge and Counsel. 12:54 BY THE JUDGE: The judgment on the application for leave to appeal will be rendered at 16:00, today. The presence of the parties is not be required. End of the hearing. 16:13 JUDGMENT : See page 4.

Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT On the application by the Petitioner for authorization and de bene esse notice to add an attorney of record: [ 1 ] Whereas the petitioner seeks permission to add Mtre François Dupin as attorney of record for the purpose of pleading the application; [ 2 ] Considering the absence of contestation. FOR THE AFOREMENTIONED REASONS , the undersigned: [ 3 ] GRANTS the application. [ 4 ] AUTHORIZES Mtre François Dupin, Ad. E. to represent the Petitioner as his attorney of record for the purpose of pleading the application for leave. [ 5 ] Without legal costs.

On the application for leave to appeal: [ 6 ] In seeking leave to appeal, Mr. F. notes that he is a vulnerable person engaged in proceedings relating to protective supervision. He argues that the judge erred in applying the ordinary rules for discovery to him in these circumstances. [ 7 ] The petitioner says the judge’s decision was not taken with due regard to his interest or in the full respect of his rights and it failed to properly safeguard his autonomy, as required by

article 257 C.C.Q . He suggests that rules relating to evidence given by vulnerable persons should have applied here as if it were a non-contentious proceeding like most cases of homologation. His treatment as a vulnerable person should not change by the mere fact that a dispute arose between the parties. [ 8 ] Relying on

article 32 C.C.P ., the petitioner argues that the judgment is a case management measure is susceptible of appeal in that it appears unreasonable in light of the guiding principles of procedure. Specifically, the failure to take into account his vulnerability in ordering the examination is unreasonable in light of guiding principles of proportionality (art. 18 C.C.P .), the obligation to limit proceedings to what is necessary in the circumstances (art. 19, para. 2 C.C.P .) and is a misapprehension of the right to be heard in the circumstances (art. 17 C.C.P .).

He argues further the decision violates his rights under the Quebec Charter of Human Rights and Freedoms , recognized by the Preliminary Provision of the Code of Civil Procedure . [ 9 ] Counsel for the Public Curator took substantially the same position as Mr. F., as did counsel for his spouse, X. H., mise en cause. [ 10 ] The respondents answer that even if they had asked for the order as a case management measure, the judgment is in fact one “rendered in the course of proceedings” to which

article 31 C.C.P . applies for the purposes of leave. They say no irreparable harm was suffered as a result of the judgment. But whether it is subject to

article 31 or 32 C.C.P . is immaterial: they argue the judge made no reviewable error. He simply applied the rules applicable to discovery in this plainly contentious matter. *** [ 11 ] The judgment appears to me to be a case management measure as contemplated in article 158 (3) C.C.P .: the judge, responsible for the orderly conduct of the proceedings, determined the terms of a required pre-trial examination. As such the judgment deserves deference in this Court and is not subject to appeal except in the rare circumstances contemplated by

article 32 C.C.P . [ 12 ] With respect for the judge, it appears to me that the judgment could be viewed as unreasonable in light of the guiding principles of procedure set forth in in articles 17, 18 and 19 C.C.P ., in particular that of proportionality. It may indeed have been unreasonable to set the terms of a pre-trial examination without due consideration to the circumstances and rights of an elderly and sick person without adapting the rules to fit what is normally a non-contentious proceeding dealing with incapacity.

On this basis I would grant leave. [ 13 ] In so deciding, I do not intend to limit the review the Court undertakes of the case on appeal. [ 14 ] I hasten to say, in fairness to the judge, that it is not plain to me that he was invited to consider alternatives to the order to hold the examination at the office of the law firm or subject to any other modalities that would have been more congenial to Mr. F.. And again in defence of the judge, the parties did not produce relevant authorities to guide him in argument.

[ 15 ] If I am wrong, and that this is not a case management measure, I note that I would have granted leave under

article 31 C.C.P . in any event, given the possible adverse impact of the proceedings on the petitioner’s rights that could not be set right by final judgment. [ 16 ] In the circumstances, I propose to grant leave and place the appeal on the accelerated track pursuant to

article 37 of the Civil Practice Regulation, as adapted for an appeal pursuant to

article 32 C.C.P . [ 17 ] The respondents requested that I not suspend the proceedings in first instance. The other parties agreed. No suspension will be ordered. [ 18 ] Prior to start of the hearing, I asked the parties in this unfortunate family dispute to explore the possibility of a negotiated settlement. This proved unsuccessful. I repeat this same suggestion here, with the Court’s mediation service in mind.

FOR THE AFOREMENTIONED REASONS, THE UNDERSIGNED: [ 19 ] GRANTS the motion for leave to appeal; [ 20 ] PLACES the case on the role of March 29, 2019 in room Antonio-Lamer at 9:30am, for a 100-minute hearing (45 minutes each for the appellant and respondent, 10 minutes for the impleaded party Curateur public du Québec ); [ 21 ] ORDERS the appellant, after having notified a copy upon the respondent and the impleaded party Curateur public du Québec , to file in the Office of the Court, no later than January 24, 2019 five copies of a written argument not exceeding 10 pages .

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 22 ] ORDERS the respondents, after having notified a copy upon the appellant and the impleaded party Curateur public du Québec , to file in the Office of the Court, no later than February 22, 2019 , five copies of a written argument not exceeding 10 pages and of their supplementary documents; [ 23 ] ORDERS the impleaded party Curateur public du Québec , after having notified a copy upon the appellant and the respondent, to file in the Office of the Court, no later than January 31, 2019 , five copies of a written argument not exceeding 5 pages and of its supplementary documents; [ 24 ] DIRECTS the parties’ attention to

section 376 C .C.P . and

article 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 25 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities. Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches. The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted ; [ 26 ] THE WHOLE , legal costs to follow. NICHOLAS KASIRER, J.A.