2021 QCCA 1257, 2021 QCCA 1257

Kinlock c. Jetté 2021 QCCA 1257 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029561-214 , 500-09-029562-212 ( 500-17-111385-202 ) MINUTES OF THE HEARING DATE: August 6, 2021 CORAM: THE HONOURABLE STEPHEN W. HAMILTON, J.C.A. BENOÎT MOORE, J.C.A. GUY COURNOYER, J.C.A.

APPELLANT COUNSEL michael kinlock PRESENT AND Unrepresented RESPONDENTS COUNSEL mathieu jetté étienne bordeleau françois paulin mcgill university health CENTER Mtre Stéphanie Gascon ( Borden Ladner Gervais ) By videoconference On appeal from a judgment rendered on May 12, 2021 by the Honourable Marie-Christine Hivon of the Superior Court , District of Montréal . DESCRIPTION: 500-09-029561-214 Application to dismiss an appeal (Articles 357 and 365 C.C.P .). 500-09-029562-212 Application to dismiss an appeal (Articles 357 and 365 C.C.P .).

Clerk at the hearing : René Gutknecht Courtroom: Pierre-Basile-Mignault HEARING

10:58 Commencement of the hearing. Identification of counsel. 10:59 Submissions by Mtre Gascon. 11:00 Mtre Gascon submits an outline of pleading. 11:01 Mtre Gascon resumes her submission. 11:15 Submissions by Mr Kinlock. Mr Kinlock submits the written arguments. 11:32 Discussion between the Court and Mr Kinlock. 11:40 BY THE COURT: Judgment will be filled during the course of the day. 11:41 Discussion between the Court and Mr Kinlock. 11:43 Conclusion of the hearing.

René Gutknecht, Clerk at the hearing JUDGMENT [ 1 ] The Court is seized of two applications to dismiss appeals, both of which are combined with an application to declare the appeals abusive. These applications pertain to the appeal of three judgments rendered by the Superior Court, District of Montreal, on May 12, 2021 (the Honourable Madam Justice Marie-Christine Hivon). [ 2 ] The first application (file no. 500-09-029561-214) pertains to the appeal of a judgment [1] dismissing the appellant’s application for an interlocutory injunction seeking the following conclusions: 1.1.

Declare that Defendants have breached various sections of the Case Protocol established on March 12, 2020; 1.2. Order Defendants, lawyers and staff of BLG, and representatives of Defendants to cease altering, tampering or removing documents from the present case file, including ceasing exertion of influence of its ‘‘ supporters within the Court in relation to the sabotage ’’ of the present case file. [ 3 ] The judge dismissed this application on the ground that the appellant had not met any of the criteria for the issuance of an interlocutory injunction.

The judge noted that the grounds invoked by the appellant for his application for an injunction indicated his misunderstanding of what case management entails, the appellant having relied, among other things, on the fact that a document that had been produced during a case management conference was not physically in the court record as an indication of collusion between the Superior Court, the respondents and their lawyers.

The judge also noted that the only prejudice alleged by the appellant referred to delays in the advancement of the file, which delays were, in fact, due to the COVID-19 pandemic. [ 4 ] In support of his appeal, the appellant alleges that the judge exercised her discretion unreasonably. To substantiate the existence of an error of law, he refers, in particular, to systemic discrimination and misrepresentations by the respondents. He also argues that the judge committed palpable errors of fact. [ 5 ] The respondents ask that the appeal be dismissed both because the appellant should have sought leave to appeal under

article 31 of the Code of Civil Procedure and because the appeal is doomed to fail. [ 6 ] The respondents are right. A judgment dismissing an application for an interlocutory injunction is governed by

article 31 C.C.P. and requires leave. [2] This ground alone is sufficient to dismiss the appeal. Moreover, even if the appellant had presented an application for leave to appeal, it would have been denied since the appeal is doomed to fail. [ 7 ] The second application to dismiss (no. 500-09-029562-212) pertains to the appeal of two other judgments rendered that same day.

The first judgment [3] dealt with the appellant’s application to disqualify the firm Borden, Ladner, Gervais (BLG), counsel for the respondents. [ 8 ] In support of his application for disqualification, the appellant alleged that Mtre Patrick Trent of the firm BLG, who was representing the respondents, had acted as counsel in a previous file between the same parties and that his conduct in that file would make him a key witness in the matter now before the court.

The appellant also argued that BLG was in a conflict of interest because of political interference with respect to the appellant by former politicians within the firm. He also claimed there had been collusion between BLG and the Superior Court. [ 9 ] The judge dismissed this application, indicating that an application to disqualify a lawyer can only be granted for serious cause,

especially when the disqualification targets an entire firm.

In the matter before her, she considered that the allegations were clearly insufficient and that even if Mtre Trent were to be called as a witness, there was nothing to establish that his testimony would pertain to essential disputed facts. [ 10 ] The other judgment dealt with the appellant’s application for breach of case protocol and abuse of procedure. [4] The judge dismissed this application primarily on the ground that the delays of which the appellant complained were due to the limitation of judicial activities caused by the COVID-19 pandemic and due to personal reasons of the respondents’ lawyers, also resulting from the health crisis.

The judge also noted that the allegations of collusion between the Superior Court and BLG were frivolous and unfounded. [ 11 ] In his notice of appeal, the appellant argues that the judge erred in law by concluding that the criteria for disqualification and for a finding of abuse under

article 51 C.C.P. had not been met and by failing to take into consideration the collusion and political interference in the file. [ 12 ] The respondents ask that the appeal be dismissed on the same grounds as the appeal of the first judgment, namely, that the appeal was not properly brought and that it has no reasonable chance of success. [ 13 ] Here, too, they are right. The appeal required leave and, in any event, is doomed to fail. [ 14 ] As for the applications to declare the appeals abusive, there is no need to grant them since the dismissal of the appeals at this preliminary stage is sufficient.

FOR THESE REASONS, THE COURT: In both files: 500-09-029561-214 and 500-09-029562-212 [ 15 ] GRANTS in part the applications to dismiss the appeals; [ 16 ] DISMISSES the appeals; [ 17 ] DISMISSES the application to declare the appeals abusive; [ 18 ] THE WHOLE with legal costs. STEPHEN W. HAMILTON, J.C.A. BENOÎT MOORE, J.C.A. GUY COURNOYER, J.C.A.