2012 QCCA 911, 2012 QCCA 911

H.E. c. Tribunal des professions 2012 QCCA 911 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022613-129 MINUTES OF THE HEARING DATE: May 15, 2012 THE HONOURABLE CLÉMENT GASCON, J.A. PETITIONER ATTORNEY H. E. Mtre Martin J. Sklar RESPONDENT ATTORNEY TRIBUNAL DES PROFESSIONS MIS EN CAUSE ATTORNEY ME PETER LACK CONSEIL DE DISCIPLINE DU BARREAU DU QUÉBEC Mtre Peter Lack for himself

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED BY THE HON. FRANÇOIS ROLLAND OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:35 Commencement of the hearing. Submission by Mtre Sklar. 9:54 Submission by Mtre Lack. 10:43 Reply by Mtre Sklar. 10:46 Suspension. 14:13 Resumption of the hearing. Precision by Mtre Lack. 14:19 Comments by Mtre Sklar. 14:24 Suspension. 14:47 Resumption of the hearing. Judgment – See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] H.

E. presents a Motion for Authorization to Appeal a judgment of March 19, 2012, of the Superior Court Chief Justice François Rolland. This judgment dismissed her Motion for Authorization to Present a Motion for Judicial Review pursuant to Rule 86 of the Rules of Practice of the Superior Court : 86. Application for authorization.

The application to institute or to continue an action or application is presented to the Chief Justice or the Judge designated by the Chief Justice, and is filed in the Office of the Court for the District of Québec or the District of Montréal depending on the division in which the order of prohibition was issued. The application may be adjudicated on the basis of the record, without a hearing. [ 2 ] By virtue of paragraph 45 of a prior judgment rendered by Nadeau J. on June 10, 2011, Mrs E. had to obtain such an authorization from the Chief Justice before filing any motion in front of the Superior Court.

The order of Nadeau J. in that regard read as follows:

[45] DÉCLARE la demanderesse H… E… plaideur vexatoire et quérulent et, à cet égard, lui INTERDIT de prendre quelque procédure que ce soit contre quelque personne physique ou morale que ce soit qui ait pu être impliquée dans le règlement de la Succession de son père J... G..., depuis son décès en 1988 jusqu'à ce jour, et dans le règlement de la Succession de sa mère F...

K..., depuis le décès de cette dernière en 1999 et ce, tant le cadre des dossiers 500-05-002605-895, 500-14-011670-999 que dans le présent dossier 500-17-047423- 085 sans obtenir au préalable une autorisation expresse du juge en chef de la Cour supérieure du Québec ou d'un juge spécifiquement désigné par lui pour entendre les représentations de la demanderesse; [ 3 ] Mrs E. sought the authorization of Chief Justice Rolland in order to file a motion for judicial review of a judgment rendered by the Tribunal des professions on January 10, 2012, following a complaint filed by her against Mtre Peter Robert Lack, one of the Mis en cause. [ 4 ] By that judgment, the Tribunal des professions dismissed Mrs E.'s appeal from a decision of the Conseil de discipline du Barreau du Québec dated June 10, 2010, which dismissed her complaint against Mtre Lack.

Both the Conseil the discipline and the Tribunal des professions concluded that the complaint was clearly unfounded in fact and in law. The Tribunal des professions added that the complaint filed by Mrs E. twenty years after the relevant facts was abusive. [ 5 ] Before me, the Mis en cause, Mtre Lack, strongly contests the Motion for leave to appeal. Amongst others, he stresses that it is in itself another example of the relentless quarrelsome nature of Mrs E. and of her abuse of the legal system. [ 6 ] For the reasons that follow, I conclude that leave to appeal should not be granted.

Mrs E.'s Motion fails to meet the applicable criteria of Article 26(2) C.C.P. I consider that the matter at issue is not one that should be submitted to the Court. [ 7 ] Briefly, here is why. [ 8 ] First, the applicable case law of the Court recognizes that a judgment rendered by the Superior Court Chief Justice pursuant to rule 86 R.P.S.C. is subject to appeal with leave pursuant to

Article 26 C.C.P. ( Productions Pixcom inc. v. Fabrikant, 2005 QCCA 703 , Vandal v. Vandal, 2011 QCCA 2188 ). [ 9 ] Second, still following the relevant case law of the Court, Mrs E. must establish that the matter at issue raises a question analogous to a question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents.

In my view, Mrs E. fails to make this demonstration. [ 10 ] Third, over and above this, in the case of Fabrikant already cited, Dalphond J.A. states the following with regard to the test that Mrs E. must meet to convince me to grant her leave: [34] […] I would add that it seems obvious to me that once a litigant has been declared vexatious, the allegations of any new proceedings that he/she is making and for which an authorization must be sought cannot be presumed not to be vexatious.

Therefore, such an applicant has the burden to establish prima facie the seriousness of the claim for which he/she is seeking authorization. [ 11 ] In my assessment, this burden is not met. [ 12 ] On one hand, it is established before me, and in fact not strongly contested by Mrs E.'s Counsel, that Mtre Lack definitely falls within the ambit of paragraph 45 of Nadeau J. judgment of June 10, 2011. He is without doubt a person that was extensively involved in the settlement of both the Estate of the late J. G. and the Estate of the late F.

K.. [ 13 ] Suffice it to say in that regard that Mtre Lack acted as Counsel for the late A. G., the brother of Mrs E., as well as for the Estate of the late A. G.. In a judgment rendered on December 15, 1999, in one of the Court files listed in paragraph 45 of Nadeau J. judgment, the payment of Mtre Lack's fees of some $ 94 000 was ordered.

As well, in another judgment rendered on November 22, 2005 (rectified on December 21, 2005) by the same Nadeau J. in one of these files, a seizure made by Mtre Lack on the assets of the estate involved was declared good and valid. [ 14 ] On the other hand, the seriousness of the Motion for Judicial Review that Mrs E. is seeking the authorization to file is not established prima facie. As correctly stated by Rolland C.J., this Motion for Judicial Review appears frivolous and ill founded based on a mere reading of both the Conseil de discipline's decision and the Tribunal des professions' judgment.

The latter even qualifies her complaint against Mtre Lack as abusive. [ 15 ] Considering the limited criteria for intervention at the stage of judicial review, the arguments raised by Mrs E. in her motion do not disclose any reasonable chance of success, to say the least. Moreover, even though Mrs E. could not have ignored the order issued against her by Nadeau J. on June 10, 2011, she nevertheless elected to seek prior authorization under Rule 86 R.P.S.C. only on March 1, 2012, almost 50 days after the January 10, 2012, judgment of the Tribunal des professions.

This is clearly way beyond the normal reasonable delay of 30 days that courts regularly impose for the filing of a motion for judicial review. [ 16 ] To quote from the words of Dalphond J.A. in the case of Fabrikant at paragraph 35 , the new motion for judicial review appears to be no more than another example of the predisposition of Mrs E. to abuse the legal system with regard to what Nadeau J. has precisely ordered her to refrain from doing after June 2011. [ 17 ] In my view, to grant her leave to appeal would disregard this finding and encourage Mrs E. to do exactly the contrary.

From that standpoint, I see nothing wrong in Chief Justice Rolland's exercise of his discretion pursuant to rule 86 R.P.S.C. [ 18 ] In closing, as I indicated to Mtre Lack, as motions' judge, I do not have jurisdiction to grant punitive damages for abusive proceedings in appeal pursuant to

Article 524 C.C.P. as he verbally requested. This is within the jurisdiction of the Court, not of the motions judge. [ 19 ] FOR THESE REASONS , the Motion for Authorization to Appeal is DISMISSED , with costs.

CLÉMENT GASCON, J.A.