Décision

O'Connor c. Monroi Inc.					2019 QCCS 5317
SUPERIOR COURT
Commercial Division
CANADA
PROVINCE OF QUEBEC
DISTRICT OF				MONTREAL
No:		500-11-029529-068
DATE:	December 11, 2019
_____________________________________________________________________
PRESIDING:				THE HONOURABLE MICHEL a. PINSONNAULT, j.S.C.
_____________________________________________________________________
DANIEL F. O’CONNOR
Plaintiff
v.
MONROI INC.
9114-8965 QUEBEC INC.
BRANA GIANCRISTOFARO-MALOBABIC
Defendants
and
4278020 CANADA INC.
ATTORNEY GENERAL OF CANADA BARREAU DU QUÉBEC
Mis en cause
and
WERNER MOOSBERGER ZELJKA MALOBABIC Opposing Third-Parties
_____________________________________________________________________
JUDGMENT on Motion for Compensation of Mr. Werner Moosberger’s investment in Me Daniel F. O’Connor Trust, for Quashing of the Seizure of the Chess Patent and to Designate an Impartial Judge by Mr. Werner Moosberger, Opposing Third-Party (Art. 151, 707, 345 C.C.P.)
_____________________________________________________________________

[1]           The undersigned is seized with a 12-page Motion filed by Mr. Werner Moosberger (“Moosberger[1]”), describing himself as an Opposing Third-Party, that was emailed on October 22, 2019 to the Chief Justice, the Honourable Jacques R. Fournier (the “Chief Justice”) and to the undersigned in his capacity as special case management judge designated by the Chief Justice by Order of June 28, 2019 (the “Moosberger Motion”). The Moosberger Motion was filed in the court record bearing number 500-11-029529-068 (“File 068”).

[2]           In his Motion, Moosberger asks the Superior Court to order various judicial declarations and remedies that can be divided essentially in four groups:

-       Quash the seizure after judgment of the Chess Patent required for MonRoi Inc. (“MonRoi”) operations practiced by Plaintiff M^tre Daniel F. O’Connor (“O’Connor”) on October 5, 2018 (the “Motion to Quash”);

-       Judicial declarations and monetary claims against O’Connor and the Barreau du Québec linked to a $50,000 investment made by Moosberger into MonRoi in May 2005, with a $50,000 cheque having been remitted to lawyer O’Connor who deposited the same into his trust account (the “Motion for compensation”);

-       Order the Attorney General of Canada to ensure that misappropriation of MonRoi’s intellectual property and Moosberger's investment by lawyer O'Connor who provided to both parties legal advice, ends and for the Superior Court's judgment made on September 21, 2018 in O'Connor c. Giancristofaro-Malobabic, 2018 QCCS 4099 (Canlii) to be revoked ( the “Attorney General Order”); and

-       An Order designating an independent and impartial judge to rule on his Motion. (the “Motion to designate an impartial judge”)

[3]           The undersigned finds that the Moosberger Motion must be dismissed on all of its aspects as Moosberger failed to establish that his proposed recourses have any realistic chances of success under the circumstances, bearing in mind that the Motion for compensation is essentially a Declaration of forced intervention against a third-party, the Barreau du Québec. Moreover, the Court believes that Moosberger does not have a sufficient legal interest to seek the various remedies found in the conclusions of his Motion.

[4]           Therefore, in the absence of a sufficient legal interest to assert any of the rights and claims found in the Moosberger Motion, Moosberger’s request that an impartial judge be appointed instead of the undersigned becomes moot.

[5]           In any event, even if the undersigned would consider Moosberger’s request to designate an impartial judge as an application for his recusation, the same should also be dismissed for lack of any serious evidence offered by Moosberger of a reasonable apprehension on his part of bias on the part of the undersigned in conformity with the applicable criteria established by the Supreme Court of Canada.     

[6]           The undersigned will now explain how he comes to those conclusions.

[7]           But, before proceeding with the Motion to Quash, preliminary comments are in order to better situate the context in which were raised the issues by Moosberger.

1.            The Judgment of September 21, 2018 WHICH is at the core of the present proceedings is final and executory

[8]           A seizure after judgment was practiced by Plaintiff O’Connor on October 5, 2018 as a result from a judgment rendered in his favour by the undersigned on September 21, 2018[2] in the present File 068 (the “Judgment”) against the three Defendants Mrs. Branislava (Brana) Malobabic (“Mrs. Brana”), her wholly-owned holding company, 9114-8965 Québec Inc. (“InnDe”) and its subsidiary MonRoi (collectively the “Defendants”).

[9]           The conclusions of the Judgment were the following:

[1258] GRANTS in part Plaintiff Daniel F. O’Connor’s Re-Re-Amended Motion for relief under the shareholders oppression remedy;

[1259] DISMISSES the Re-Amended Contestation and Cross-Demand of the Defendants Brana Giancristofaro-Malobabic, 9114-8965 Québec inc. (InnDe) and MonRoi Inc.;

[1260] DECLARES the actions and omissions of the Defendants Brana Giancristofaro- Malobabic, 9114-8965 Québec inc. (InnDe) and MonRoi Inc. as oppressive and unfairly prejudicial to the rights of the Plaintiff Daniel F. O’Connor as a beneficial owner of MonRoi shares;

[1261] DECLARES the actions of the Defendants Brana Giancristofaro-Malobabic, 9114-8965 Québec inc. (InnDe) and MonRoi Inc., since the institution of the present proceedings, as an abuse of procedure;

[1262] DECLARES the actions of the Defendants Brana Giancristofaro-Malobabic, 9114-8965 Québec inc. (InnDe) and MonRoi Inc. as fraudulent;

[1263] ORDERS the Defendants Brana Giancristofaro-Malobabic, 9114-8965 Québec inc. (InnDe) and MonRoi Inc. to pay solidarily to the Plaintiff Daniel F. O’Connor, as an aggrieved person, the amount of $150,000 in compensation for the MonRoi shares that were never issued in his favor by MonRoi with interest at the legal rate of 5% per annum plus the special indemnity of article 1619 of the Civil Code of Quebec from December 18th, 2006, the date of the institution of the present proceedings;

[1264] ORDERS the Defendants Brana Giancristofaro-Malobabic, 9114-8965 Québec inc. (InnDe) and MonRoi Inc. to pay solidarily to the Plaintiff Daniel F. O’Connor the amount of $100,000 as damages suffered by Plaintiff as a result of Defendants’ abuse of procedure with interest at the legal rate of 5% per annum plus the special indemnity of article 1619 of the Civil Code of Quebec from March 22, 2007, the date of the initial Contestation of the Defendants Brana Giancristofaro-Malobabic, 9114-8965 Québec inc. (InnDe) and MonRoi Inc.;

[1265] ORDERS the Defendants Brana Giancristofaro-Malobabic, 9114-8965 Québec inc. (InnDe) and MonRoi Inc. to pay solidarily to the Plaintiff Daniel F. O’Connor the amount of $100,000 as moral damages and for troubles and inconvenience with interest at the legal rate of 5% per annum plus the special indemnity of article 1619 of the Civil Code of Quebec from December 18th, 2006, the date of the institution of the present proceedings; and

[1266] ORDERS the provisional execution of the present judgment notwithstanding appeal;

[1267] THE WHOLE with legal costs, including legal costs on the Contestation and on the Cross-Demand of the Defendants, payable solidarily by the Defendants Brana Giancristofaro-Malobabic, 9114-8965 Québec inc. (InnDe) and MonRoi Inc., to the Plaintiff Daniel F. O’Connor.

[10]        A perusal of the Moosberger Motion reveals that for the most part, it is intimately linked to various findings of facts in the Judgment that are vehemently disputed by Moosberger who characterizes the latter as a tremendous and complete miscarriage of justice[3].

[11]        As can be observed from the content of the Moosberger Motion and some of its conclusions, to all intents and purposes, Moosberger is ultimately seeking the revocation of the Judgment with the assistance of the Attorney General of Canada despite the fact that it was maintained by the Court of Appeal on January 21, 2019[4] and that leave to appeal to the Supreme Court of Canada filed by Mrs. Brana was dismissed on October 10, 2019. Otherwise, Mooseberger is essentially aiming at neutralising the effects of the Judgment and prevent O’Connor from executing the same against the assets that are either owned by MonRoi and/or used by MonRoi.

[12]        Be that as it may, for the most part, the Moosberger Motion raises many facts, circumstances and arguments that were already raised by the Defendants during the 38-day trial and which have already been considered, discussed and adjudicated in the Final Judgment.

[13]        By obtaining the undersigned’s recusation, Moosberger is essentially endeavouring to have another judge of the Superior Court of Québec revisit once again many of the facts and circumstances[5] that gave rise to the Final Judgment, given that he disputes and disagrees wholeheartedly with several of the findings of fact in the Final Judgment, including its conclusions.

[14]        Yet, at this juncture, the only true outstanding issues are the ones that the Chief Justice specified in his June 28, 2019 Designation Order:

JE DÉSIGNE l'honorable Michel A. Pinsonnault pour décider de toutes les procédures relatives à l'exécution de jugement dans ce dossier.

[Emphasis added]

[15]        There is an undeniable fact at this juncture: the Judgment is final and executory (the “Final Judgment”). It cannot be set aside and retried nor can it be annulled or revoked.

2.            The Legal interest of Moosberger to act Herein

[16]        It is of critical importance to identify the basis upon which Moosberger is attempting to assert his rights and recourses against O’Connor, the Barreau du Québec and the Attorney General of Canada via his Moosberger Motion.

[17]        The Moosberger Motion reveals that Moosberger invested $50,000 into MonRoi by remitting his funds to lawyer O’Connor in trust in May 2005. The Oppression Remedy proceedings were instituted in the following year by all the investors (including Moosberger) on the basis that Mrs. Brana (and the corporate Defendants) denied their right to receive shares of MonRoi in consideration of their respective investments.

[18]        After the institution of the Oppression Remedy proceedings, Moosberger settled out of court with Mrs. Brana and received the MonRoi shares that he expected to receive in consideration of his $50,000 investment in MonRoi. The undersigned understands that Moosberger did not have to make a second investment for the same amount of $50,000 in order to obtain his corresponding MonRoi shares. In his Motion, Moosberger is nevertheless essentially blaming O’Connor for having remitted to MonRoi his $50,000 investment without ensuring that his MonRoi shares would be issued in his name beforehand.

[19]        Despite having ultimately received in 2008 the MonRoi shares that he was entitled to from the outset, Moosberger has accused O’Connor of having misappropriated and misused the $50,000 that he had entrusted with the lawyer who had deposited his cheque into his trust account before releasing the entire proceeds to MonRoi in mid-2005[6].  

[20]        Moosberger is also alleging that not only did the Final Judgment consecrate O’Connor’s misappropriation of his $50,000 investment but by allowing O’Connor to seize the Chess Patent it results in destruction of my investment deposited in Mr. O’Connor’s trust account on the basis that MonRoi would have the Chess Patent to operate[7].

[21]        Approximately five years later, on February 18, 2010, Moosberger sent a letter to O’Connor demanding the refund of his $50,000 entrusted to him in May 2005. O’Connor refused to refund Moosberger[8].

[22]        On March 23, 2010, Moosberger filed a claim with the Indemnity Fund of the Barreau du Québec (the “Indemnity Fund”) alleging that O’Connor had illegally misappropriated the sum of $50,000 that he had entrusted to him as a lawyer[9].

[23]        The Indemnity Fund dismissed Moosberger’s claim and therefore, refused to refund his $50,000 investment. On April 23, 2012, the Barreau du Québec rejected his appeal of the negative decision of the Indemnity Fund.

[24]        There is no doubt that the aforesaid $50,000 was invested by Moosberger into MonRoi and that as a result of which he became a shareholder of MonRoi from 2008 onwards[10].

[25]        Moosberger did not lend those funds to MonRoi and is not a creditor of MonRoi in connection with his $50,000 equity investment.

[26]        Moosberger’s status vis-à-vis MonRoi is that of a shareholder. 

3.            The MOTION TO QUASH THE SEIZURE of the Chess patent

[27]         With respect to the Chess Patent which is the object of the Motion to Quash[11], Moosberger describes the same as follows at paragraph 11 of his Motion:

11. In the Term Sheet, Mr. O’Connor claimed that MonRoi would have the necessary technology to operate, as in paragraphs 7 to 13, including the chess patent International Application No. PCT/CA2004/000067 (the "Chess Patent")¹.

^Footnote1 https://patentscope.wipo.int/search/en/detail.jsf?docId=WO2004064957

[28]        The above hyperlink leaves no doubt that the Chess Patent referred to by Moosberger is the same Patent that was also registered as the United States Patent No: US8,087,672 B2 (granted on January 3, 2012) based on WO/2004/064957, System and Devices for Real-Time Electronic Chess Move Recording, Viewing and Storage (the “U.S. Patent”). The U.S. Patent has been the object of two third-party oppositions so far including the present one[12].

[29]        An Opposition was also filed earlier by Defendant Mrs. Brana, as the registered owner of the U.S. Patent[13] and by Defendant InnDe.

[30]        InnDe’s Opposition was dismissed by judgment rendered on March 25, 2019[14] by the Honourable Justice Silvana Conte (the “Conte Judgment”) on the basis that Mrs. Brana did not have sufficient legal interest to oppose on behalf of InnDe the seizure after judgment practiced by O’Connor on October 5, 2018[15].

[31]        Insofar as the U.S. Patent was concerned, Mrs. Brana’s Opposition was also dismissed by the Conte Judgment.

[32]        On May 13, 2019, the Honourable Justice Allan R. Hilton of the Court of Appeal dismissed Mrs. Brana’s Application for leave to appeal the Conte Judgment[16] and made the following comment concerning the U.S. Patent issue[17]:

[5] […] Finally, she [Mrs. Brana] argued that patents are exempt from seizure, which may be true elsewhere in Canada, but is not true in Quebec, as the Superior Court held in Brunet v. Chrysler Canada Ltd.[18]

[33]        The issue of the enforceability of the Final Judgment against the U.S. Patent and of the legality of the seizure after judgment practiced by O’Connor against the U.S. Patent are settled issues.

[34]        The Conte Judgment is also final and executory.  

[35]        The other Third-Party Opposition was filed by Opposing Third-Party Ms. Zeljka Malobabic (“Ms. Zeljka”) whose Motion to Quash has yet to be heard. However, on a prima facie basis, the Motion to Quash of Ms. Zeljka suffers, inter alia, from serious weaknesses as she is trying to assert, as Opposing Third-Party being an alleged creditor of MonRoi, the right to quash the seizure of the U.S. Patent that is registered in the name of Mrs. Brana[19] and not in the name of MonRoi[20].

[36]        Moosberger’s justification to quash the seizure of the U.S. Patent can be summed up as follows:

-       Moosberger is attempting to assert his right and legal interest to make his Third-Party Opposition on the basis that he is a shareholder (investor) of MonRoi;

-       that the U.S. Patent (Chess Patent) is needed by MonRoi for its operations[21]; and

-       that by surrendering to O’Connor the U.S. Patent (Chess Patent), his investment into MonRoi will be destroyed[22].  

[37]        With all due respect, Moosberger, acting in his capacity as a shareholder of MonRoi, does not have a sufficient legal standing or interest to oppose a seizure practiced by a creditor of MonRoi who holds a judgment that is final and fully executory. The fact that Moosberger disputes the validity and legality of the Final Judgment is of no assistance to him under the present circumstances.

[38]        Moreover, the fact that the U.S. Patent belongs to or is registered to Mrs. Brana and/or InnDe, who are also both debtors of O’Connor pursuant to the Final Judgment, creates an insurmountable obstacle for Moosberger as a MonRoi shareholder, even if MonRoi may have a contractual right to use the U.S. Patent on a limited basis[23].  

[39]        Regardless of his intent, and given that the Conte Judgment settled definitively the issue of the legality of the seizure of the U.S. Patent by O’Connor, a fact that could not be ignored by Moosberger, his Third-Party Opposition is bound to fail and represents, in the undersigned’s opinion, an unreasonable and excessive use of legal procedure aimed at blocking the efforts of O’Connor to execute the Final Judgment against the assets of the three Defendants in lieu of receiving payment of the sums of money that the Defendants owe him.

[40]        The Motion to Quash the seizure of the U.S. Patent is therefore dismissed.

4.            The Motion for compensation against O’Connor and the Barreau du Québec

[41]        The conclusions sought by Moosberger against O’Connor and the Barreau du Québec are the following:

DECLARE that Plaintiff Daniel F. O’Connor solicited in May of 2005 Mr. Werner Moosberger’s $50,000 investment without registration and prospectus approved by the Autorité des marchés financiers in violation of the Québec Securities Act, while Mr. Werner Moosberger was neither Mr. O’Connor’s family nor his friend.

DECLARE that Plaintiff Daniel F. O’Connor solicited Mr. Werner Moosberger’s $50,000 investment based on misrepresentations and that he transferred funds from his trust account into an empty shell company without the chess technology assets, without giving to Mr. Werner Moosberger anything in return, and thereafter seized the promised chess asset to destroy Mr. Moosberger's investment.

ORDER the Barreau du Quebec and lawyer Daniel F. O'Connor, to pay solidarily to Mr. Werner Moosberger an amount that the Court determines is just and proper, in compensation for his investment solicited in violation of the securities laws and based on misrepresentations with interest at the legal rate of 5% per annum plus the indemnity.

ORDER the Barreau du Quebec and lawyer Daniel F. O'Connor, to pay solidarily to Mr. Werner Moosberger an amount that the Court determines is just and proper, damages suffered by Mr. Werner Moosberger as a result of Plaintiff's illegal acts and abuse of procedure with interest at the legal rate of 5% per annum plus the indemnity.

ORDER the Barreau du Quebec and lawyer Daniel F. O'Connor, to pay solidarily to Mr. Werner Moosberger an amount that the Court determines is just and proper, moral damages and for troubles and inconvenience with interest at the legal rate of 5% per annum plus the indemnity.

[42]        As previously mentioned, the relevant allegations found in the Moosberger Motion regarding his Motion for compensation reveal the following:

-       On May 13, 2005, Moosberger remitted to O’Connor a $50,000 cheque made payable to Daniel F. O’Connor in trust representing his investment into MonRoi;[24]

-       On May 7, 2008, Moosberger obtained his MonRoi shares in consideration of the $50,000 previously remitted to O’Connor in trust;[25]

-       On February 18, 2010, Moosberger sent a letter of demand to O’Connor seeking the refund of his $50,000 investment in MonRoi that had been misappropriated by O’Connor and the latter refused to refund the money;[26] 

-       On June 25, 2010, Moosberger filed an ethical complaint against O’Connor with the Syndic of the Barreau du Québec which was unsuccessful;[27]

-       On March 23, 2010, Moosberger also filed a claim with the Indemnity Fund requesting the refund of his $50,000 investment entrusted to the lawyer O’Connor who had allegedly misappropriated and misused those funds illegally;

-       Moosberger’s claim was denied by the Indemnity Fund and Moosberger’s appeal with the Executive Committee of the Barreau du Québec was denied on April 23, 2012[28].

[43]        Given that there is no longer an ongoing dispute or litigation on the merits in File 068 between O’Connor and the Defendants as the Judgment rendered on September 21, 2018 is final and executory, at the hearing, the Barreau du Québec and O’Connor being the two parties that are the object of the Motion for compensation, voiced their opposition to what purports to be an attempt by Moosberger to introduce surreptitiously into File 068 a Declaration in forced intervention against the Barreau du Québec that is clearly  groundless and irremediably bound to fail for the following reasons:

-       The forced intervention of a third party (namely the Barreau du Québec) must be necessary for a complete resolution of the main dispute between the parties[29];   

-       The forced intervention constitutes the addition of a new defendant who will have to answer to the conclusions of the main claim[30];

-       The forced intervention should not be permitted if the conclusions sought against the Barreau du Québec have no connection with the conclusions of the main claim in that they constitute a distinct cause of action[31].

[44]        With respect to O’Connor, the new monetary conclusions sought against him are clearly tardy since the main dispute on the merits has been definitely disposed of and terminated since September 21, 2018. Such monetary conclusions could not be brought up by Moosberger in File 068 by way of a Motion for compensation or by way of a Declaration intervention.

[45]        With respect to the two conclusions seeking judicial declarations from the Court, they relate to matters that have been specifically considered and adjudicated in the Final Judgment.

[46]        Finally, both O’Connor and the Barreau du Québec raised that if Moosberger had valid claims[32] against them in connection with the allegations in the Moosberger Motion, which they denied, such claims have been clearly prescribed (time-barred) for many years.

[47]        The applicable prescription period herein is 3 years and it has clearly run its course many years ago:

-       O’Connor received the $50,000 investment on May 13, 2005;

-       O’Connor refused to refund the $50,000 around March 2010 following a letter of demand from Moosberger of February 18, 2010;

-       On April 23, 2012, the Barreau du Québec denied the appeal or the review of the Indemnity Fund to deny Moosberger’s claim for the same $50,000 investment misappropriated by O’Connor

[48]        The Court emphatically agrees with all the arguments submitted by the Barreau du Québec and O’Connor. 

[49]        Moosberger knew or should have known that he could not force the intervention of the Barreau du Québec in File 068 and seek various monetary compensation for a clearly prescribed claim against the Barreau du Québec and O’Connor.  

[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.    

[52]        Regardless of Moosberger’s intent, the undersigned finds that his Motion for compensation against O’Connor and the Barreau du Québec is clearly unfounded, unreasonable, frivolous and therefore constitutes an excessive procedure, especially since the Final Judgment can no longer be revoked or set aside as seemingly wished by Moosberger.       

5.            The Attorney General Order

[53]        The same conclusion applies to the Attorney General Order sought by Moosberger that reads as follows:

ORDER the Attorney General of Canada to ensure that misappropriation of MonRoi Inc. intellectual property and Mr. Werner Moosberger's investment by lawyer Daniel F. O'Connor who provided to both parties legal advice ends and for the Superior Court's judgment made on September 21, 2018 in O'Connor c. Giancristofaro-Malobabic, 2018 QCCS 4099 (Canlii) to be revoked.

[54]        Other than the aforesaid conclusion, the Moosberger Motion is totally silent about the reasons justifying the involvement of the Attorney General of Canada in this strictly private matter between citizens.

[55]        At the hearing, the lawyer for the Attorney General of Canada made the following observations underlying his client’s position that the Attorney General of Canada wishes to remain neutral in this otherwise private legal matter and seeks no involvement on his part, especially since the Judgment is final having been brought up to the Supreme Court of Canada who dismissed Mrs. Brana’s application for leave to appeal.

[56]        The lawyer echoed the position of the Barreau du Québec and of O’Connor with respect to the new conclusions sought by Moosberger in the context of a Final Judgment and raising himself the fatal issue of prescription.

[57]        Moreover, the lawyer pointed out that the Moosberger Motion is totally silent when it comes to establish the legal interest or even a legal obligation or duty that the Attorney General of Canada would have to intervene herein.

[58]        Finally, the Attorney General Order is completely ill-founded as the Attorney General of Canada cannot be ordered by the Superior Court to ENSURE:

-       on the one hand, that misappropriation of MonRoi Inc. intellectual property and Mr. Werner Moosberger's investment by lawyer Daniel F. O'Connor who provided to both parties legal advice ends; and

-       on the other hand, for the Superior Court's judgment made on September 21, 2018 in O'Connor c. Giancristofaro-Malobabic, 2018 QCCS 4099 (Canlii) to be revoked.

[59]        Such an unsubstantiated and unenforceable conclusion is totally unrealistic, groundless and clearly frivolous under the present circumstances.

[60]        The Attorney General of Canada was forced by Moosberger to intervene into a legal dispute that does not concern him in any manner whatsoever, especially since there is a Final Judgment.

[61]        The lawyer for the Attorney General of Canada concluded by saying that he would reiterate the same arguments on behalf of his client if and when a similar motion brought up by Ms. Zeljka is eventually heard by the Court.   

[62]        The Attorney General Order must be dismissed as well.

6.            The Motion to designate an independent and impartial judge to rule of the Moosberger Motion

[63]        The Moosberger Motion to designate an impartial judge is addressed to the Superior Court in general.

[64]        A similar request was filed earlier by Ms. Zeljka claiming to act as an Opposing Third-Party in the present File 068 with the Chief Justice who took the position that following his Order made on June 28, 2019 designating the undersigned as a special case management judge to rule on all matters and issues relating to the execution of the Final Judgment, he did not have the jurisdiction to replace the designated judge and that a party seeking such a change had to request the recusation of the judge instead.

[65]        By judgment rendered on November 14, 2019[33], the undersigned dismissed the Application for recusation of Ms. Zeljka as the latter failed to meet the applicable test to establish the existence of a reasonable apprehension of bias, an essential requirement when a party[34] is seeking the recusation of a judge, a concept that was considered and analysed at length in that judgment[35].

[66]        In the present instance, Moosberger justifies and concludes at the same time his Motion to designate an impartial judge as follows:

48. I sincerely do not believe that the Honorable Justice Michel A. Pinsonnault is impartial and request to be provided an impartial judge to hear my motion. In my opinion, this verdict results in misappropriation of investment by Mr. O’Connor and I request that it either be revoked, or for all damages to be paid to me.

[67]        But, first and foremost, given the conclusions reached by the Court with respect to the Motion to Quash, the Motion for compensation and the Attorney General Order that have all been dismissed, the Moosberger Motion is clearly unfounded and frivolous.

[68]        Under such circumstances, the Court finds that Moosberger does not even have the standing as a “party[36]” to File 068 to seek the recusation of the undersigned.

[69]        In other words, a person cannot simply invite itself in a legal matter and claim to be a “party” justifying its express goal to cause the recusation of the judge without having legitimate and serious grounds to become a “party” to those ongoing proceedings, be it as an intervenor or an opposing third-party.    

[70]        In any event, a perusal of the Moosberger Motion reveals that Moosberger is essentially seeking to obtain:

-       an Order that O’Connor and the Barreau du Québec refund of his $50,000 investment entrusted to O’Connor in 2005 together with unspecified damages;

-       an Order to quash the seizure after judgment of the U.S. Patent practiced by O’Connor on October 5, 2018; and

-       an Order to the Attorney General of Canada seeking essentially its intervention in the present instance in order to ensure that, to all intents and purposes, the execution proceedings initiated by O’Connor following the Final Judgment (described as a misappropriation of MonRoi’s intellectual property) are blocked and finally, to ensure that the Final Judgement be revoked.  

[71]        With all due respect, other than allegations found in the Moosberger Motion that:

-       The Final Judgment is a tremendous and complete miscarriage of justice[37];

-       The undersigned defamed Moosberger in the Final Judgment in connection with his testimony at the 38-day trial[38];    

-       The undersigned made an inaccurate statement at paragraph 93 of the Final Judgment regarding the MonRoi shares held by InvestorCo[39];

-       The undersigned made an error in the Final Judgment by awarding to O’Connor MonRoi shares that were over-valued, thus enabling him to seize the U.S. Patent[40];

-       By rendering the Final Judgment in September 2018, after allowing this case to drag for nearly 12 years, the undersigned ruled in favour of O’Connor, and demanded that MonRoi pays damages plus interest to O’Connor and surrenders the Chess Patent to him, which Moosberger found to constitute a complete miscarriage of justice, as it resulted in the destruction of his $50,000 investment deposited in O’Connor’s trust account on the basis that MonRoi would use the Chess Patent to operate;

Moosberger did not provide any serious and compelling reasons to support his unalleged apprehension of a reasonable bias on the part of the undersigned justifying his replacement by the Chief Justice and his recusation following the Designation Order of June 28, 2019 by the Chief Justice.

[72]        The above reasons alleged in the Moosberger Motion all evidence that Moosberger, as a shareholder of MonRoi, is in strong disagreement with many of the undersigned’s findings of fact in the Final Judgment and with its conclusions given their potential impact on his $50,000 investment.

[73]        Moosberger is certainly at liberty to express his opinion regarding the Final Judgment.

[74]        However, his opinion on the Final Judgment is of no assistance to Moosberger to reverse the strong presumption of integrity and impartiality that a judge enjoys[41].  

[75]        In Droit de la famille 17396[42], the Québec Court of Appeal made the following comment regarding that very subject:

[23] La Cour suprême du Canada nous enseigne qu'il existe une présomption à l'effet que les juges agissent avec intégrité, qu'ils sont impartiaux et que chacun d'eux respecte le serment d'impartialité qu'il a prêté. La preuve requise pour contrer cette présomption doit être rigoureuse puisqu'il faut établir une réelle probabilité de partialité parce qu'un simple soupçon est insuffisant. La crainte raisonnable de partialité doit s'appuyer sur « des faits précis et non sur un ramassis de faits imaginés, grossièrement exagérés, ou carrément inventés »¹⁴.

[24] Il incombe à celui qui allègue une crainte raisonnable de partialité de présenter une preuve convaincante démontrant que, eu égard aux circonstances de l'espèce, une personne raisonnable pourrait craindre que le juge n'est plus impartial.

^{Footnote 14} Fresaid Entreprises Ltd c. Refco Futures Canada Ltd., J.E. 98-552 (C.A.).  

[Emphasis added]

[76]        Based on the foregoing and the evidence adduced at the hearing (or the lack thereof), the undersigned finds that other than failing to be a “party” within the meaning of articles 201 and following of the Code of civil procedure, Moosberger also failed to meet the stringent requirements to successfully reverse the strong presumption of integrity and of impartiality of the judge.

[77]        In brief, other than vehemently disagreeing with the Final Judgment[43], Moosberger did not establish the existence of serious grounds justifying the undersigned’s recusation from this legal matter (i.e. the Moosberger Motion).

[78]        In conclusion, for all the reasons stated above, the undersigned is of the opinion that setting aside the issue of the replacement or of the recusation that has already been disposed of, the Motion to Quash, the Motion for compensation and the Attorney General Order sought by Moosberger in his Motion are all clearly ill-founded and frivolous as they have no reasonable chances of success.

[79]        Without ruling in any manner whatsoever on the merits of O’Connor’s execution proceedings in File 068 that are presently disputed by Mrs. Brana, the Court also finds that the Moosberger Motion is essentially an unfounded and frivolous attempt by Moosberger to delay, if not to obstruct, the execution proceedings of O’Connor based on the Final Judgment.

[80]        For all the reasons stated above, the various remedies sought by Moosberger in his Motion are so obviously ill-founded and frivolous that the Court finds that the Moosberger Motion constitutes an unreasonable and excessive use of the procedure by Moosberger within the ambit of article 51 of the Code of civil procedure.

[81]        In other terms, the Moosberger Motion has all the characteristics of an abuse of procedure.

WHEREFORE, THE UNDERSIGNED:

[82]        DISMISSES the Motion for Compensation of Mr. Werner Moosberger’s investment in Me Daniel F. O’Connor Trust, For Quashing of the Seizure of the Chess Patent and to Designate an Impartial Judge filed by Mr. Werner Moosberger, Third Opposing Party; 

[83]        REFUSES to recuse himself from this legal matter;

[84]        DECLARES that the Motion for Compensation of Mr. Werner Moosberger’s investment in Me Daniel F. O’Connor Trust, For Quashing of the Seizure of the Chess Patent and to Designate an Impartial Judge filed by Mr. Werner Moosberger, Third Opposing Party constitutes an abuse of procedure pursuant to articles 51 and following of the Code of civil procedure;

[85]        RESERVES the rights and recourses of M^tre Daniel F. O’Connor, the Barreau du Québec and of the Attorney General of Canada to seek damages against Mr. Werner Moosberger as a result thereof, as the case may be;

[86]        THE WHOLE WITH COSTS payable by Mr. Werner Moosberger to M^tre Daniel F. O’Connor, the Barreau du Québec and to the Attorney General of Canada.

		__________________________________ MICHEL A. PINSONNAULT, J.S.C.
Mtre Daniel F. O’Connor
Plaintiff, self-represented
Mtre Luc Séguin
Fonds d'assurance responsabilité professionnelle
Attorneys to Mtre Daniel F. O’Connor (cross-demand)
Mrs. Brana Giancristofaro-Malobabic
Defendant, self-represented
Ms. Zeljka Malobabic
Opposing Third-Party, self-represented
Mr. Werner Moosberger
Opposing Third-Party, self-represented
Mtre Tommie Anne Côté Clyde & Co Canada Attorneys to Mis en cause Barreau du Québec
Mtre Ludovic Sirois
Ministère de la Justice Canada
Attorneys to Mis en cause Attorney General of Canada
Hearing date:	December 4, 2019