2016 QCCA 1032, 2016 QCCA 1032

MacGregor c. MacKinnon 2016 QCCA 1032 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026108-167 (500-17-090963-151) MINUTES OF THE HEARING DATE: June 14, 2016 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL LAURA MACGREGOR Mtre FADI AMINE Mtre PATRICIA FOURCAND (Miller Thomson SENCRL / LLP) RESPONDENT COUNSEL ROBB MACKINNON Mtre FABRICE L. COULOMBE Mtre MARIE ANNIK WALSH (Dunton, Rainville) DESCRIPTION: Application for leave to appeal from a judgment rendered on April 4, 2016 by the Honourable Marc St- Pierre of the Superior Court, District of Longueuil. Clerk: Mihary Andrianaivo Courtroom: RC-18

HEARING 14:04 Commencement of the hearing. Preliminary comments by the Judge. 14:09 Submissions by Mtre Amine. 14:27 Submissions by Mtre Coulombe. 14:39 Rebuttal by Mtre Amine. 14:41 Recess. 15:11 Resumption of the hearing. BY THE JUDGE: Judgment – See page 3. 15:12 End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Laura MacGregor asks for leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Marc St-Pierre), rendered on April 4, 2016, that dismissed her motion for a stay of proceedings. [ 2 ] The parties disagree as to whether the motion for leave is governed by

article 31 or

article 32 C.C.P. The petitioner sees the judgment as rendered in the course of proceedings subject to the rule in

article 31. The respondent takes the position that the judgment is of the order of a case management measure and is only subject to appeal if it is unreasonable in light of the guiding principles of procedure pursuant to

article 32. [ 3 ] Both parties agree, however, that the refusal to grant a stay is discretionary in character. In that sense, whether it falls within the purview of

article 31 or

article 32, the judgment is deserving of deference on appeal. [ 4 ] The petitioner is of the view that the judge erred in refusing to grant the stay. In so doing, she argues, the judge indirectly and unfairly decided that her motion to vary accessory measures in a connected family dispute was ill-founded and, further, that he did so without a hearing. [ 5 ] The judgment makes plain that the judge understood the link between the civil file before him and the related family law file. He understood the impact that his decision might have on the family case.

The petitioner has not convinced me that the judge erred in his view of the proper connections between the two files or that his discretionary decision to refuse the stay in the civil matter is not deserving of deference. I make special mention of the judge's comment in para. 7 as to considerations relating to the "saine administration de la justice". I find this a compelling explanation for proceeding as he did. The judge’s reasoned choice is deserving of deference in the absence of a patent error or manifest injustice. I see none here. [ 6 ] Whether viewed from the perspective of

article 31 or

article 32 C.C.P. , the judgment is not unreasonable in light of the guiding principles of procedure, nor would it be in the interests of justice to grant leave. On the contrary, I am of the view that the principle of proportionality militates against granting leave in this dispute given the amounts of money in play. [ 7 ] I exercise my discretion not to award costs. Notwithstanding that this dispute arose in a civil file, the dispute remains familial in character. FOR THE FOREGOING REASONS , the undersigned: [ 8 ] DISMISSES the motion, without legal costs. NICHOLAS KASIRER, J.A.