Sarah D. Pinsonnault
Articles du même auteur
04 Mar 2020

Being convinced of suffering an injustice does not discharge your obligation as a self-representing litigant

Par Sarah D. Pinsonnault, avocate

David Gelles, Student, McGill Law Student

Sarah D. Pinsonnault, Lawyer, Larivière Meunier


In response to the decision rendered in O’Connor v. Giancristofaro-Malobabic, 2018 QCCS 4099 (“Giancristofaro”), Mr. Werner Moosberger, a shareholder in MonRoi Inc., essentially asked the Superior Court to rule on four motions. In O’Connor c. Monroi Inc., 2019 QCCS 5320, Moosberger asked the Superior Court to: 1) quash the seizure of MonRoi’s patent; 2) rule on a claim for monetary compensation from Me. Daniel O’Connor; 3) revoke the judgment in Giancristofaro; and 4) appoint a different judge to rule on these motions. The judge dismissed all motions, finding that Moosberger did not have sufficient legal interest to seek these remedies, and further finding that there was no reasonable apprehension of bias on his part, towards Moosberger.


In Giancristofaro, the judge ruled in favour of O’Connor, who was the beneficial owner of shares in the company MonRoi Inc., shares of which were never issued to him. O’Connor obtained relief for shareholder oppression and for abuse of procedure from Mrs. Brana Gioncristofaro-Malobabic, her holding company, 9114-8965 Quebec Inc., and its subsidiary, MonRoi Inc – the defendants in that case. As a result, O’Connor was awarded compensation for damages arising from his claims, for which the defendants are solidarily liable.

Moosberger vehemently disputes various findings of fact in the Giancristofaro judgment, and in his motion he essentially sought a revocation of that judgment, by aiming to neutralize the effects of the latter and preventing O’Connor from executing it. To that end, Moosberger sought the assistance of the Attorney General of Canada, despite the judgment being maintained by the Quebec Court of Appeal, and despite leave to appeal to the Supreme Court being dismissed.

The substance of Moosberger’s motions, by attempting to frustrate the judgment in question, and assign a new judge, amounts to setting aside the Giancristofaro judgment and re-trying the case. Per the Superior Court, the judgment is final and executory, and as such the issues that Moosberger seeks to re-adjudicate are conclusively beyond revisiting. The only outstanding issues are procedural matters relating to the execution of the judgment.

Decision Rendered

Regarding Moosberger’s status, the Court found that he is a shareholder of MonRoi, not a creditor. Moosberger claimed $50,000 from O’Connor, which Moosberger had given him to invest in MonRoi Inc., arguing that he misappropriated the funds, instead of investing them in return for shares. Moosberger believes there was a misappropriation because he did not initially receive the shares, as Mrs. Gioncristofaro-Malobabic denied him and similar investors their right to shares. However, Moosberger did receive the appropriate amount of shares following a settlement with Mrs. Gioncristofaro-Malobabic after an oppression remedy was instituted.

Regarding the motion to quash the seizure of the patent, the Court found that Moosberger has no basis for that claim. It is a settled matter that the judgment is final and enforceable, and that patents can be seized. Moosberger’s claim rests on the argument that, as a shareholder he has a legal interest to assert his right against the seizure, because the patent is necessary for MonRoi’s operations, and surrendering the patent would destroy his investment in the company. As a shareholder however, the Court ruled that Moosberger does not have sufficient interest for his claim against a seizure undertaken by a creditor who holds a final and fully executory judgment.

Moosberger’s claims are further and fatally weakened by the fact that the registered owners of the patent are also O’Connor’s debtors, and because the Court sees his opposition as an abusive procedure aimed only at hindering O’Connor’s efforts to execute the judgment.

Regarding the motion for compensation from O’Connor, the Court found that Moosberger had no basis for the claim. Moosberger’s motion for compensation amounts to a forced intervention of a third party, in this case the Barreau du Quebec. Because the case it was introduced into was already decided, the Court found that the motion must fail, as such a motion must be necessary for a complete resolution of the main dispute, which was already resolved. Further, the forced intervention would require the addition of a new defendant to answer the conclusions of the main claim, and the motion should not be permitted if the claims have no connection with the main dispute in that they constitute a new cause of action. Here, the compensation claim sought against O’Connor and the Barreau fail because the main dispute has been definitely disposed of on the merits.

Lastly, even if such a motion could be brought, the claim in question is clearly prescribed. The prescription period for such a claim is three years, and it has run its course long ago, with the final relevant date being April 23, 2012. Moosberger filed this motion over three years since that date.

Regarding the motion to revoke the judgment, the Court found that this claim is also unfounded. Other than seeking a claim that the Attorney General step in to revoke the judgment, Moosberger’s motion was silent on the reasons justifying that conclusion, thus not establishing a legal interest or obligation requiring the Attorney General to intervene. Moreover, the Attorney General expressed the desire to remain neutral in a private dispute, and raised the issue of prescription, as for the above claim, as being fatal in any case.

Regarding the motion to appoint a new and impartial judge, the claims here also fail. Moosberger failed to adduce any evidence supporting a reasonable apprehension of bias, which is buttressed by a presumption that judges act with integrity and impartially that creates a large burden to overcome. Moreover, given the conclusions the Court reached on Moosberger’s motions, it is clear that he does not have standing as a party, and cannot seek the recusation of the judge in the case at bar. In other words, Moosberger failed to demonstrate that he had sufficient legal interest to become a party to the proceedings.

Finally, based on the analyses of Moosberger’s motions, the Court also found that these were frivoulous, unreasonable, and excessive uses of procedure. The Court’s stance is clearly articulated by the judge as follows:

“[50] The fact that Moosberger chose to be self-represented and the fact that he is a resident of the State of Louisiana did not relieve him from the fundamental obligation to take reasonable steps before launching legal proceedings against O’Connor and the Barreau du Québec to ascertain that his proceedings were serious and stood a reasonable chance of success, which is clearly not the case herein.

[51] Under such circumstances, a self-represented person always has the duty and the obligation to act and exercise its rights and recourses against others in good faith. The lack of legal knowledge of the self-represented person cannot serve as a panacea or an excuse to justify the institution of reckless proceedings without seeking any legal advice before instituting the same.”

This decision raises important points about abuse of process, and about self-representing litigants. These points can be summed up by the following statement: one’s conviction of having sufficient legal interest to assert their rights does not relieve an individual of their obligation to take reasonable steps before launching proceedings. Here, the Court was adamant that Mr. Moosberger could not rely on his status as a self-represented litigant, from an outside jurisdiction, to push forward his claims. His doing so amounted to an abuse of process. Thus, self-representing litigants cannot blindly institute proceedings, even if they believe they have sufficient interest in a matter to assert their rights.

The decision in its entirety may be read here.

Other references: O’Connor v. Giancristofaro-Malobabic, 2018 QCCS 4099.

Commentaires (0)

L’équipe du Blogue vous encourage à partager avec nous et nos lecteurs vos commentaires et impressions afin d’alimenter les discussions sur le Blogue. Par ailleurs, prenez note du fait qu’aucun commentaire ne sera publié avant d’avoir été approuvé par un modérateur et que l’équipe du Blogue se réserve l’entière discrétion de ne pas publier tout commentaire jugé inapproprié.

Laisser un commentaire