Court of Appeal of Quebec

Lafond c. Comité du fonds d'indemnisation du Barreau du Québec

Marcotte, Hamilton, Beaupré

Appeal from a judgment of the Superior Court dismissing an application for judicial review. Dismissed.

The appellant, a lawyer, appeals from a judgment of the Superior Court dismissing her application for judicial review to quash a decision of the Compensation Fund Committee of the Barreau du Québec (CFCBQ). An exception to dismiss was raised against the application for judicial review and was dismissed in a judgment rendered orally on September 21, 2018. At the end of the hearing on the merits, the trial judge granted the exception to dismiss and dismissed the application for judicial review for lack of standing and interest to act.

Nothing supports the conclusion that the appellant’s standing and interest to act was not questioned at the hearing on the merits or that the appellant was deprived of the right to be heard on that issue. The judgment of September 21, 2018, was not res judicata. The judge was justified in re-examining on the merits the issue of the appellant’s sufficient interest due to the evolving facts and changing circumstances, regardless of the decision rendered at the interlocutory stage.

Under the second paragraph of art. 529 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.), an action in evocation concerns a case pending before a “court”. An action for review or in nullity may also concern decisions made by “a person or body”. It is unclear whether someone can be a “party” to a purely administrative decision made by a person or body. It is best to adopt the interpretation that favours the exercise of rights of a person with a sufficient interest in an application for review or in nullity of a judgment or decision, even if the person is not officially a “party” to the proceeding. A broad and liberal interpretation of the second paragraph of art. 529 C.C.P. is faithful to its wording, which is unambiguous. It is also consistent from a historical standpoint.

In these circumstances, the appellant does not have to be a party to the CFCBQ’s decision to ask that it be quashed. She was only required to demonstrate a sufficient interest in the application for judicial review.

The appellant does not lose any right as a result of the CFCBQ’s decision, which did not contain any conclusion against her, and would not “benefit” were it to be quashed. Certainly, the CFCBQ’s decision implicitly recognized a fault on her part. That does not create a sufficient interest, however, to contest the decision to the extent that the debate on the ethics breach was before the Disciplinary Committee of the Barreau du Québec, where the appellant had an opportunity to be heard and to defend herself. The debate then moved on to the Tribunal des professions. The CFCBQ’s decision was not likely to change this fact, and the appellant’s interest in seeking its nullity is therefore neither direct nor present and actual. The judge did not err in dismissing the application for judicial review.

Legislation interpreted: Article 529 paragraph 2 C.C.P.

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