2012 QCCA 1149, 2012 QCCA 1149

Comito c. Mountakis-Markos 2012 QCCA 1149 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020554-101 ( 500-17-028497-058 ) MINUTES OF THE HEARING DATE: June 12, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. YVES-MARIE MORISSETTE, J.A. CLÉMENT GASCON, J.A. APPELLANT ATTORNEY COSIMO COMITO JULIEN COMITO, in continuance of suit Mtre Olga Koutsouris RESPONDENTS ATTORNEY MARY MOUNTAKIS-MARKOS PARASKEVI MARKOS Mtre Céline Tessier McMILLAN

On appeal from a judgment rendered on March 5 th , 2010 by the Honourable Justice Sylviane Borenstein of the Superior Court, District of Montreal. «Requête des intimées pour permission de présenter une nouvelle preuve indispensable». Amended motion by Appellant for permission to adduce indispensable new evidence. NATURE OF THE APPEAL : Responsibility Clerk: Robert Osadchuck Courtroom: Louis-H.-Lafontaine HEARING 11 h 20 Commencement of the hearing. Book of authorities by Appellant and Respondents are produced.

On the Appellant's amended motion for permission to adduce new evidence: 11 h 24 Submission by Mtre Koutsouris. 11 h 36 Submission by Mtre Tessier. 11 h 43 Reply by Mtre Koutsouris. 11 h 46 The Court will dispose of this issue at the same time it will dispose of the merits of the appeal. 11 h 46 On the Respondents' motion for permission to adduce new evidence: 11 h 46 Submission by Mtre Tessier. 11 h 50 Submission by Mtre Koutsouris. 12 h 00 The Court will dispose of this issue at the same time it will dispose of the merits of the appeal.

On the merits of the appeal : 12 h 01 Submission by Mtre Koutsouris. 12 h 30 Recess. 13 h 59 Resumption of the hearing. 13 h 59 Submission by Mtre Koutsouris. 14 h 39 Submission by Mtre Tessier. 15 h 22 Reply by Mtre Koutsouris. 15 h 26 Recess. 15 h 41 Resumption of the hearing. 15 h 41 By the Court: judgment – see next page. Robert Osadchuck BY THE COURT

JUDGMENT [ 1 ] The trial judge described the background to the present litigation in the following manner: [1] This case is the sad result of Cosimo Comito (Cosimo), the Plaintiff, helping his son Peter Cosimo (Peter), act on his threats of October 20, 2003, to his wife Paraskevi Markos (Vivi), following her instituting divorce proceedings, which Peter admitted having uttered: "Vivi, it's a war you cannot win, I promise you … I'm going after you one hundred miles an hour … So don't fucking mess with me.

I'm going to war with you, you understand? … You don't know what that means, you'd better start worrying … I tell you, start worrying … I have a lot more resources than you … I will appeal for the next 20 years … You're not going to be able to buy a can of soup. Do you understand Vivi ? … I'm going to have you followed every minute of the day … Every single minute, Vivi. You will not be able to have a drink till you're 85 years old.

" [2] Cosimo sues Paraskevi Markos and her mother Mary for malicious prosecution following the dismissal of Paraskevi's complaint against him for assault. [3] They filed a cross-demand for vexatious and abusive proceedings. [ 2 ] The judgment under appeal dismissed the claim for malicious prosecution and maintained the cross-demand for vexatious and abusive proceedings. [ 3 ] Save on the issue of the retroactivity of articles 54.1 and following of the Code of Civil Procedure , the appeal raises issues of fact alone. [ 4 ] We will deal first with the issue of retroactivity. [ 5 ] The Act introducing articles 54.1 and following into the C.C.P. [1] provides specifically that: 6.

The improper nature of an action or pleading instituted or filed before the coming into force of this Act must be determined in accordance with the new rules. However, the second paragraph of

article 54.2 and

article 54.6 of the Code of Civil Procedure (R.S.Q.,

chapter C-25 ), enacted by

section 2 , apply only to actions instituted or pleadings filed after 4 July 2009. [ 6 ]

Article 54.4, on which the condemnation is based, being clearly excluded from the exceptions to the immediate application provision above, the trial judge was entitled to order an award to Respondents for punitive damages as well as extra-judicial fees under that article. [ 7 ] As to the facts, the trial judge came to the conclusion that Cosimo Comito had physically assaulted his daughter in law, despite the fact that he was acquitted of the charges laid against him. The trial judge noted that the judge in the criminal case had stated bluntly that he did not believe Cosimo Comito.

It is trite to say that the burden of proof in criminal matters is far greater than the mere balance of probabilities which applies to civil matters.

Thus it was open to the trial judge to find that despite the acquittal, Cosimo Comito's claim in damages against Respondents for malicious prosecution was ill founded. [ 8 ] In instituting his claim for malicious prosecution, Cosimo Comito exposed himself to the risk that the substance of the Respondent's criminal complaint be established in the subsequent civil trial on a balance of probabilities. [ 9 ] In addition, the trial judge concluded that Cosimo Comito had sued Respondents in bad faith and with the sole view of causing them prejudice, a finding for which there was sufficient proof in the record. [ 10 ] On the whole, Appellant fails to demonstrate any palpable and overriding error on the part of the first judge in reaching her findings of fact, which found ample support in the evidence. [ 11 ] This leaves the issue of the reasonableness of extra-judicial fees awarded. [ 12 ] The trial judge concluded that there had been an admission regarding the amount of extra-judicial fees, a conclusion which was justifiable in light of the representations of Cosimo Comito's attorney at argument . [2] That being the case, Appellant is preempted from arguing that such amounts were unreasonable. [ 13 ] Therefore, Respondents' Motion for Leave to adduce invoices for legal fees as indispensable new evidence is dismissed as unnecessary and irrelevant. [ 14 ] Finally, the Court will deal with Appellant's Motion for Leave to adduce indispensable new evidence, that evidence being an Agreement of Transaction, Settlement, Acquittance, Receipt, Release and Discharge which he contends has settled the present proceedings, in addition to an e-mail of March 17, 2012 from Respondent Markos to her ex-husband Peter Comito, congratulating the latter, as well as herself, over their settlement. [ 15 ] Not only does this Agreement not relate, on its face, to the present appeal, but Appellant's attorney failed to present to the Court a letter of Respondent Markos attorneys which reads partly as follows: "This is further to your surprising letter dated April 11, 2012.

"The transaction agreement entered into between our respective clients concerns three files specifically identified in the documents

signed by Mrs Markos and our firm and in all the exchanged correspondence that led to the agreement. "As to Mrs Markos's e-mail dated March 17, it clearly concerns the parties' daughter, Gabriella." [ 16 ] The behaviour of Appellant in continuation of suit and, the Court regrets to note, of his attorney, leaves much to be desired.

The Motion for Leave to Adduce the Agreement of Transaction and the e-mail concerning Gabriella is quite inappropriate and will be dismissed with costs. [ 17 ] However, the Court acknowledges that interest on the sums awarded should only run as of the judgment, as they concern punitive damages and accruing legal costs, and as of the cross-demand regarding other damages.

FOR THESE REASONS, THE COURT: [ 18 ] DISMISSES Respondents' Motion for Leave to adduce new evidence, without costs; [ 19 ] DISMISSES Appellant's Motion for Leave to adduce new evidence, with costs; [ 20 ] DISMISSES the Appeal, with costs, save to order that interest and the legal indemnity on the awards for punitive damages and legal fees accrue from the date of the judgment of first instance, i.e., from March 5, 2010, and that interest and the legal indemnity on the award for damages accrue from the date of the cross-demand. NICOLE DUVAL HESLER, C.J.Q. YVES-MARIE MORISSETTE, J.A.

CLÉMENT GASCON, J.A. [2] The agreement on legal fees was for $30,000 in the case of Appellant's fees and for $40,000 each in the case of Respondents' fees. See Argument, M.A., vol. VI, p. 1596, 1720 & 1721; Amendments, M.A., vol VI, p. 1743 & 1744.