By Ashley Kandestin
DeGrandpré Chait S.E.N.C.R.L/LLP
The Court of Appeal has recently confirmed a procedural uncertainty existing since the inception of articles 54.1 of the Code of Civil Procedure (the “CCP”) and following: when a motion for leave to appeal is brought before a judge in chambers of the Court of Appeal, can such a motion be declared improper and dilatory and be dismissed under article 54.1 CCP? The answer, clarified by the Honorable Justice Allan R. Hilton in Asselin c. Daniel Girouard & Associés inc., 2013 QCCA 159, is no. Nor can the Court, sitting on the merits of an appeal, entertain the question of abuse of procedure through the lens of 54.1.
Firstly, the meaning of the word “court”, as used in the CCP, must be understood. Though the CCP explains that the word court may designate “a judge presiding in a courtroom or acting in chambers” (art. 2 (j) CCP in fine), in matters of appeal, the court sits as a panel of at least three judges (article 513 CCP). Next, the CCP grants jurisdiction to an appeals judge sitting alone in specific circumstances, among them is most chiefly the jurisdiction to hear a motion for leave (article 494 CCP). Thus, when hearing such a motion, the appeals judge is not sitting as the court, but rather as a judge sitting alone (juge unique), and not exercising the authority of the Court.
As Justice Hilton mentions, article 513 CCP also stipulates that “fewer than three judges may […] do any acts which do not require the exercise of judicial discretion”. With regards to articles 54.1 CCP and following, not only do these provisions consistently refer to “the court” and not to “the judge”, but jurisprudence has established that the act of presiding over a claim under these articles necessarily requires the use of discretion. Thus, at first glance, neither the legislative drafting of these provisions nor the judicial consideration that is to be given to a motion based on them, attribute jurisdiction to a judge of the Court of Appeal sitting alone.
Moreover, articles 524 and 501 (5) CCP, specifically allow the Court to declare an appeal that it dismisses as being dilatory or abusive, either when seized of a matter on the merits, or on a motion to dismiss an appeal. These provisions attribute no such jurisdiction to a judge sitting alone on a motion for leave. Should a motion for leave to appeal appear to be dilatory in the sense of articles 54.1 CCP and following “a judge in chambers cannot issue an order pursuant to those provisions, however inclined to do so that judge may be” (paragraph 54 of the decision).
As an appeals judge has no jurisdiction to entertain a claim under article 54.1 CCP, and as the Court of Appeal is already equipped with articles 524 and 501 (5) CCP, claims under articles 54.1 CCP and following should only be sought in courts of first instance. This coincides with Justice Hilton’s closing remarks, in which he reminds us that relief against an abusive motion for leave to appeal can be sought by filing a subsequent suit in civil liability based on article 54.1 CCP in the appropriate court of first instance:
“ A respondent to a motion for leave to appeal cannot, whether by a written contestation or motion or orally, solicit an order from a judge in chambers to grant relief under article 54.1 C.C.P. In principle, if the judge grants the motion for leave to appeal, no claim under article 54.1 C.C.P. could ever lie, irrespective of any jurisdictional issue, since by definition an appeal that a judge has authorized cannot be considered dilatory or abusive. If, however, the motion for leave to appeal is dismissed, the judge is functus officio.
 Therefore, any claim based on article 54.1 C.C.P. upon the dismissal of such a motion must be asserted in the trial court within whose monetary jurisdiction the matter falls. In this case, however, because the jurisdictional issue has been referred to the Court, it has before it, exceptionally, the Trustee's motion pursuant to article 54.1 C.C.P.”
The full text of the decision can be read here.