2012 QCCA 2300, 2012 QCCA 2300

Poplawski c. McGill University Non-Academic Certified Association 2012 QCCA 2300 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023034-127 (500-17-061419-100) DATE: December 21, 2012 PRESIDING : THE HONOURABLE JACQUES A. LÉGER, J.A. SLAWOMIR POPLAWSKI APPELLANT - Defendant McGILL UNIVERSITY NON-ACADEMIC CERTIFIED ASSOCIATION RESPONDENT - Plaintiff JUDGMENT [ 1 ] The petitioner, Mr. Poplawski, who is self-represented, brings a motion for leave to appeal from a judgment rendered on September 12 th 2012, by the Honorable Madame Justice Sophie Picard of the Superior Court, District of Montreal. As can be seen from the minutes of the hearing (

schedule 1 ), there were 3 decisions rendered that day :

i) which denied his request for a postponement of his motion returnable that day : for revocation of her prior judgment of July 5 th, ; ii) the second which dismissed his demand for her recusation; iii) ans a third which dismissed his motion of revocation of the July 5 th judgment [1] .Given the ambiguity of the motion's language, I will deal successively with all three. [ 2 ] His motion is based on articles 2, 20, 26, 29, 46, 494 and 511 C.C.P. , as well as articles 23, 24 and 35 of the Quebec Charter Human Rights and Freedom and articles 15, 24 of Canadian Charter of Human Rights and Freedoms .

He has presented a large number of grounds for which he seeks leave to appeal from the September 12 judgment, which essentially can be summarize into four questions:

a) Did the trial judge erred in refusing petitioner's request to postpone his motion in revocation against the July 5 th decision, returnable on September 12 th ?

b) Was her conduct biased and unfair towards petitioner in rendering her decision under scrutiny, that led her to dismiss petitioner's motion for recusation, allegedly consistent with her approach during the previous June's hearing?

c) Did the trial judge dismiss illegally and wrongfully petitioner's motion for revocation of the August 29 th and July 5 th 2012 judgments at the reception stage, on the basis that the motion did not show, prima facie , valid or sufficient grounds?

d) Was there procedural inequity and an unfair treatment towards petitioner due to questionable conduct of the trial judge and did she act with partiality in assessing the documentary evidence.

Did the judge repeatedly breach of his fundamental rights under both the Federal and Quebec Charter of rights , when she rendered her decision [2] on July 5 th 2012, declaring him a vexatious litigant on some complaints? * * * Generalities and legal principles [ 3 ] Before dealing with those issues, it is appropriate to underline some of the guidelines that a judge in chamber takes into account when dealing with motions such as the present.

Firstly, his duty and role at the stage of authorizing or not leave to appeal, is basically to act as a filter to determine whether the judgment should or not be submitted to the Court for complete or partial review, as the case may be. In so doing, the motion judge exercises a discretionary power in interpreting articles 26 (for final judgments) and 29 C.C.P. (this latter in conjunction with

article 511, for interlocutory judgments). Such role is limited in scope, given that the legislator has explicitly decided to restrict, inasmuch as possible, the number of frivolous appeals, for those matters that require permission for leave to appeal, as listed in those articles. [ 4 ] Under the Rules and practice of the Court of Appeal of Quebec in Civil Matters [3] , it is incumbent upon all petitioners to provide with their motion « all that is required for their consideration ». Rule 22 reads as follows:

[ 5 ] 22. Presentation and content.

(1) Motions shall be presented, according to their nature, before the Court, a Judge or the Clerk. They shall be accompanied by all that is required for their consideration, and in particular by proceedings, exhibits, depositions, minutes, judgments or excerpts therefrom, as well as any statutory or regulatory provisions cited, with the exception of those of the Civil Code of Quebec or the Code of Civil Procedure.

(2) A party may apply to be excused from producing paper copies of the documents that accompany the motion, or certain of such documents, if all the parties to the motion consent that they be produced in computer format.

The application is made by letter, by facsimile or by e mail addressed to the Office of the Court, with a copy to the other parties to the motion, and is adjudicated by a Judge in the case of a motion to the Court or to a Judge, or by the Clerk in the case of a motion to the Clerk. [ 6 ] These rules are precisely designed to ensure and facilitate the work of the motion judge or of the Court, when dealing with motions. There is an obvious reason, and a valid one, why a motion for leave to appeal must be supported with all relevant documentation.

The judge in chamber needs to be fully cognizant of the context of the judgment to determine whether or not it should be submitted to the Court for review. Also, the motion needs to be precise, specific and issue oriented, so as to give it coherence and clarity. That said, it is generally rare that non-compliance with the exact formal requirements as set out in these rules will result in the dismissal of a motion, although such is the rule.

Application to the present case [ 7 ] However, in this instance, petitioner's failure to provide a number of essential « proceedings, exhibits, depositions, minutes, judgments or excerpts there from, as well as any statutory or regulatory provisions cited », with his original motion for leave filed on October 12 2012, is more than an inconsequential violation from such formal requirements.

Further, the mere fact that petitioner is unrepresented does not entitle him to ignore those rules and proceed as he did, as if they served no useful purpose at the authorization stage [4] . [ 8 ] His formal motion presented is dated October 11 2012, accompanied by a notice of presentation, dated October 12 and an affidavit by petitioner dated Oct. 11, stating, « all the facts alleged in the above motion are true ». Its format is irregular, and in large

part incoherent, if not incomprehensible. Its unusual presentation, such as not identifying the grievances on an issue basis and the generality of the conclusions, makes it difficult to delineate with clarity between what petitioner claims are grounds of appeal, recital of facts, complaints against the judge and the court system at large, his arguments and his evidentiary statements.

Briefly stated, the rationale of many of the statements of facts and arguments of the law are difficult to understand; and the process followed by petitioner is far from being obvious. [ 9 ] Merely as an illustration of such difficulties and lack of coherence, at the outset of his motion, petitioner states that the inquiry before the trial judge lasted 115 minutes « without 64 minutes suspension »; one fails to appreciate the relevance of such statement.

Another one is the wide ranging scope of the conclusions to set aside the Judgment of September 12 th 2012, whereas on that day, 4 decisions were rendered, three of which are included in

schedule 1 and another, as an amended judgment of the July 5 th judgment (see supra footnote 1). The only way to distinguish between them, is the introductory paragraph of petitioner's motion « …. dismissed the Applicant motion for revocation of judgments of July 5,2012 as appears in the judgment attached to this proceeding (Schedule 1 ) ». And that

schedule is actually a Procès-Verbal d'audience of the September 12 hearing, in which appears the 3 decisions noted above. One may reasonable question which decision is ultimately contemplated by petitioner in his second conclusion. [ 10 ] Given the unusual nature of the motion and its disorganization, it is unnecessary to repeat the long list of petitioner's grievances, enumerated over 58 paragraphs.

It bears no thing, a large number of complaints and grounds of appeal, to the extent they are intelligible, assert conclusions of law or legal arguments, but fail to provide specific factual basis to support such conclusions, other than simply making unsupported statements. Furthermore, another group of complaints assert generalities relating to facts, although unsupported and which would require nothing less than reviewing de novo all of the findings of the trial judge and her appreciation of the evidence.

His conclusions are as follows: THE APPLICANT WILL ASK THE COURT OF APPEAL TO : INCLUDE INTO THE PRESENT MOTION the Applicant's previous motion of 20.07.12 for revocation not submitted to the Court of Appeal by the introduced administrative mistake in the Superior Court (included in the file No: 500-17-061419-100).

SET ASIDE the judgment of September 12, 2012 in file No : 500-17-061419-100 at the first instance; ORDER all testimonies/documents submitted without the presence of Applicant on those hearings of June 13-14, 2012 to be removed from the file no 500-17-061419-100 and close/annul this case that should be recognized as a mistrial after introducing presented above serious judicial errors. CONDEMN the respondent to pay costs both at the first instance and in appeal.

THE WHOLE without additional cost. [ 11 ] As well, although petitioner appended some 6 schedules to his motion, it is only a partial list of items, such as proceedings, minutes, exhibits, transcripts or excerpts thereof, which would have been required to have a complete contextual perspective and understanding of the issues to be considered, particularly considering the scope and ambit of his conclusions. [ 12 ] Without going through an exhaustive list of such missing items to support his grounds of appeal, here are some illustrations.

Respondent's motion in the first instance seeking to have petitioner declared a vexatious litigant; the minutes of the hearing before the same judge on June 13 and14 of, to which petitioner is referring in his third conclusion; the minutes of the hearing of July 5 th before her and more importantly her judgment rendered that day; the transcripts for the hearings held June 13, 14, July 5 th and September 12 th 2012, or excerpts thereof. Such items are necessary, if only to validate petitioner's grievances that the trial judge was hostile towards him and treated him unfairly during said hearings.

Absent the transcripts or excerpts thereof and the June minutes, it is impossible to appreciate the merits of petitioner's request that testimonies be removed from this file and his grievance as to her conduct towards him.

Given the seriousness of petitioner's complaints made against the trial judge, the hierarchy of the Superior Court and the judicial system at large, it goes without saying that one needs to have such complaints examined in their proper context, before determining whether they have any merits. [ 13 ] Moreover at the hearing before me, petitioner attempted to file yet another amendment to his motion for leave to appeal, in which he states at paragraph 15: « The Applicant only presents some reflecting injustices /problems 54 documents [5] for inducing deeper reflections among higher ranking representatives of our judicial system ».

This attempt is another violation from the Rules noted above, as if petitioner was at full liberty of ignoring them and free to act as he sees fits, thus proceeding as if the rules served no useful purpose. Its production was denied, for its lateness and lack of relevance.

However, I exceptionally authorized him to remit a copy of same to me and to opposing counsel (without the 54 documents attached), simply to be used as pleading notes during his oral presentation. [ 14 ] Given petitioner's attitude, of acting as he sees fit and his disrespect of the rules, I am of the view that the cumulative non- compliances of petitioner's motion with procedural rules is such that, in and of itself, the motion must be dismissed.

But there are also substantial reasons for its dismissal. * * * [ 15 ] Assuming for one moment that petitioner had complied with the procedural requirements in presenting his motions, I conclude that the various decisions of the first instance judge are well founded as she properly applied the law for each of them.

Her refusal to postpone the hearing [ 16 ] The refusal by the trial judge to refuse petitioner's request for a postponement of the hearing that day is a decision resulting from the exercise of her discretion and one that falls into the category of case management, particularly given that she has been specifically appointed to manage this file by the Chief Justice of the Superior Court. It is widely accepted that such decision are rarely changed or reviewed by an appellate Court, given that such decisions deserve the highest degree of deference. Such a decision can only be appealed from if leave is granted.

To succeed, petitioner must meet the cumulative criteria enunciated in articles 29 and 511 C.C.P . I conclude that petitioner has failed to show any errors by the judge of first instance that warrant granting leave under

article 29 C.C.P . and further that he has not demonstrated that the pursuit of justice requires leave to appeal to be granted pursuant to

article 511 C.C.P. Lastly, an appeal stands no chance of success, as the judge properly exercised her discretion. refusal of petitioner's demand for recusation [ 17 ] While petitioner has phrased in his own words allegations that he claims justifies granting leave to appeal, it remains that none of these allegations are sufficient to raise the possibility that this Court might consider reversing the judgment delivered by the trial judge, given the nature of motion for recusation. Its outcome in appeal would depend largely on the assessment of the evidence.

It is not the role of a judge in chambers to whom an application is made claiming procedural inequity, unfairness or partiality on the part of the judge, to engage in a practice of reading more than the material submitted in support of the motion. Absent some of the items necessary to identify the evidence of such conduct, such determination cannot be made adequately. [ 18 ] As far as I have been able to determine, what took place on that date before Madam Justice Picard had to do with more than considering petitioner's demand for her recusation.

Simply reviewing the minutes of the hearing and petitioner's recital of the events, reveals that the demand for her recusation appears to have been raised once she rendered or was about to render her decision refusing petitioner's demand for a postponement of the hearing. This illustrates plainly that, absent any transcript, this decision is part of her case management assigned to her by the Chief Justice of the Superior Court. It is likely that during this process, decisions were made which did not meet petitioner's expectations, or that observations may have been made that displeased him.

However, in and of itself, that does not amount to bias and does not constitute a « reasonable cause to fear that the judge will not be impartial within the meaning of art. 234 C.C.P . », as noted by my colleague Justice Morissette in Brattas c. 9088-2895 Québec Inc . [6] , referring to another judgment of this Court in Métromédia [7] , “[I]l ne faut […] pas confondre critique et partialité.” [ 19 ] That said, it is trite law that the issue of a motion for recusation is fairly plain and simple. It is disposed of by the judge seized of the case.

Article 238 C.C.P . provides : 238. La requête en récusation est décidée par le juge saisi de la cause. Sa décision est sujette à appel conformément aux règles applicables à l'appel d'un jugement interlocutoire The judge's decision is subject to appeal in accordance with the rules applicable to appeals from an interlocutory judgment. [ 20 ] The criteria are those provided for in articles 29 and 511 C.C.P. They must be read cumulatively. Although a judgment dismissing a demand of recusation may be interlocutory within the meaning of

article 29 C.C.P., it is also required that the permission

for leave of appeal justifies that «the pursuit of justice requires that leave be granted» as priovided by

article 511 C.C.P. [8] [ 21 ] Thus, the authorizing judge acting as a buffer to filter permission to appeals has to weigh that the matter stands a reasonable chance of success. On the issue of recusation of a judge, it is opportune to refer to the decision of the Supreme Court in Bande indienne Wewaykum c. Canada [9] .

In this case, a party was seeking a posteriori to have the judgment declared null, on the ground that Justice Binnie had expressed an opinion on the merits, while he was Deputy Minister with Justice Canada : [76] First, it is worth repeating that the standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality.

In this respect, de Grandpré J. added these words to the now classical expression of the reasonable apprehension standard: The grounds for this apprehension must, however, be substantial, and I . . . refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”. ( Committee for Justice and Liberty v. National Energy Board , supra , at p. 395) [77] Second, this is an inquiry that remains highly fact-specific. In Man O’War Station Ltd. v.

Auckland City Council (Judgment No. 1) , [2002] 3 N.Z.L.R. 577, [2002] UKPC 28, at par. 11 , Lord Steyn stated that “This is a corner of the law in which the context, and the particular circumstances, are of supreme importance.” As a result, it cannot be addressed through peremptory rules, and contrary to what was submitted during oral argument, there are no “textbook” instances.

Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts. [ 22 ] Obviously, a demand for recusation of a judge is not a trivial matter, particularly for those cases where the petitioner is self- represented.

The party resorting to such demand must be in a position to understand the gravity of what is alleged, and should understand case law on the matter, which is clearly not the case here. [ 23 ] Having regards to the argument formulated by petitioner in his motion and after having heard his arguments at the hearings without the benefit of the transcript, I am of the view that this motion has no basis in law and I fail to see in what way the pursuit of justice requires that leave be granted in the present matter. [ 24 ] As to petitioner's grievances that the judge acted unfairly and with partiality towards him throughout the process since June, he has failed to convince me that such ground for recusation is serious enough to justify that permission to appeal be granted.

On partiality, Justice Delisle, wrote in : Droit de la famille – 1559 [10] Pour être cause de récusation, la crainte de partialité doit donc :

a) être raisonnable, en ce sens qu'il doit s'agir d'une crainte, à la fois, logique, c'est-à-dire qui s'infère de motifs sérieux, et objective, c'est- à-dire que partagerait la personne décrite à

b) ci-dessous, placée dans les mêmes circonstances; il ne peut être question d'une crainte légère, frivole ou isolée;

b) provenir d'une personne : 1 o sensée, non tatillonne, qui n'est ni scrupuleuse, ni angoissée, ni naturellement inquiète, non plus que facilement portée au blâme; 2 o bien informée, parce que ayant étudié la question, à la fois, à fond et d'une façon réaliste, c'est-à-dire dégagée de toute émotivité; la demande de récusation ne peut être impulsive ou encore, un moyen de choisir la personne devant présider les débats; et

c) reposer sur des motifs sérieux; dans l'analyse de ce critère, il faut être plus exigeant selon qu'il y aura ou non enregistrement des débats et existence d'un droit d'appel. [ 25 ] Briefly put, the reasons put forward by petitioner do not meet these criteria and his fear of partiality appears to be essentially motivated by an inappropriate subjective perception of reality. The Superior Court judge did not err in refusing to recuse herself, and she properly exercised her discretion in the matter as she had to.

Our Court will seldom interfere in the exercise of such discretionary matters and petitioner has not demonstrated that this matter is a situation in which it ought to do so. Dismissal of petitioner's motion for revocation [ 26 ] The trial judge dismissed petitioner's motion to revoke the July 5 th decision, inter alia , on the basis that it did not raise a genuine or sufficient grounds for revocation, and that in fact it was in the nature of an appeal of her previous judgments.

In so doing, she properly applied the law, in particular articles 482 and 483 C.C.P. [ 27 ] Petitioner's motion on this decision is governed specifically by

article 26 C.C.P. , as such dismissal constitutes a final judgment, within the meaning of the Code of Civil Procedure. Since our Court's decision in F.L. c. Lesage [11] , it has become widely accepted that anyone who has been declared a vexatious pleader [12] has an automatic right of appeal, provided he inscribes for appeal in a timely fashion, (30 days from such judgment), as required under

article 494 C.C.P . In the present instance, petitioner has rather opted to present a motion for revocation in the Superior Court, instead of appealing within the delays; and thus it would appear, from the partial record before me, that the 30 days delay to appeal de plano of such judgment has expired. [ 28 ] Given the limited powers vested upon the judge in chambers, I do not have jurisdiction to order the remedy contemplated in

article 523 C.C.P. [ 29 ] Only the Court can entertain such motions, provided it is made within 6 months of the decision under scrutiny and if it can be persuaded that the rigorous criteria of said

article are met. It is indeed a heavy burden, notably that petitioner has to demonstrate, " that in

fact it was impossible for him to act sooner ". For these reasons, the undersigned : [ 30 ] DISMISSES petitioner's motion for leave to appeal, with costs. JACQUES A. LÉGER, J.A. Mr. Slawomir Poplawski Personnaly Appellant Mtre Marie-Claude St-Amant MELANÇON MARCEAU GRENIER SCIORTINO For the respondent Date of hearing: December 5, 2012 [1] There is yet another judgment rendered that day, by the same judge, amending her previous decisions of July 5 th , declaring him a vexatious litigant, but given the somewhat confused wording of the motion and its conclusions, I understand that it is not proper subject matter of this motion.