COURT OF APPEAL

CANADA

PROVINCE OF QUEBEC

REGISTRY OF MONTREAL

BY THE COURT

[1]               The appellant P. N. has presented two motions arising out of this Court's judgment of December 1, 2008, both of which seek its correction. That judgment allowed Mr. N.' appeal in part, confirmed his status as a quarrelsome litigant in the Superior Court, but substituted two of the paragraphs in the conclusions of the judgment of the Superior Court with a different paragraph.

[2]               The basis of the Court's reasoning was that the trial judge had adjudicated a re-amended motion of the respondent to have the appellant declared a quarrelsome litigant that the respondent had withdrawn, instead of the amended motion seeking similar but not identical conclusions that was properly before the Court.

[3]               The effect of the Court's judgment in this particular file was to limit the declaration of the appellant as a quarrelsome litigant to proceedings in the Superior Court, and to remove from the judgment of the Superior Court reference to a prohibition to initiate proceedings without prior approval of the Chief Justice of the Superior Court in the Court of Appeal, the Court of Quebec, all administrative tribunals and all discipline committees of the Bar of Quebec.

[4]               As modified by the Court's judgment, the conclusions of the judgment of the Superior Court now are to the following effect, with the paragraph substituted by the Court's judgment underlined for ease of reference:

DÉCLARE le défendeur plaideur quérulent à l’égard de la demanderesse et de ses procureurs;

ENJOINT ET ORDONNE au défendeur, P… N.., sous peine d'outrage au Tribunal, de ne pas introduire de nouveau recours ni de continuer tout recours ou procédure, ni de déposer une demande en justice introductive d'instance, en Cour supérieure sans, au préalable, avoir obtenu l'autorisation écrite du juge en chef de la Cour supérieure ou d'un juge désigné par lui.

INTERDIT à P... N... de continuer ses recours ou procédures contre la demanderesse et ses procureurs sans avoir au préalable obtenu la permission du Juge en chef de la Cour supérieure ou d’un juge expressément désigné par lui à cet effet;

RÉSERVE les droits et recours de la demanderesse de demander des dommages et intérêts contre le défendeur;

ORDONNE l’exécution provisoire du présent jugement nonobstant appel;

LE TOUT AVEC ENTIERS DÉPENS contre le défendeur.

[5]               Mr. N. contends, in effect, that none of the conclusions other than the one substituted by the Court were properly alleged by the respondent, with the result that the Court should correct its judgment and remove such improper conclusions from the formal order. Mr. N. relies on the Court's holding that he should not have been subjected to the conclusions of the motion that had been withdrawn, but only to those contained in the motion that the trial judge indicated she would be hearing.

[6]               In support of this proposition, Mr. N. has drawn to the Court's attention the text of a written argument the respondent's counsel submitted to the trial judge when the matter was argued before her that contains the impugned conclusions. This written argument did not form part of the record before the Court when Mr. N.' appeal was heard on October 14, 2008.

[7]               The motion that was properly before the trial judge did contain the first two conclusions set out in paragraph [4] above.[1] The remaining conclusions in the modified order were not in the motion that was properly before the trial judge.

[8]               That being said, should all of the remaining conclusions have been included in the order, and if not, should this Court correct its judgment of December 1, 2008?

[9]               On whatever basis the matter is examined, the trial judge did not properly have before her the three conclusions that follow the one that is underlined as set out in paragraph [4]. There was therefore no basis in law for those conclusions having been included in the Superior Court judgment. Even if these three conclusions had been properly before the trial judge in a motion that was validly before her, there would have been no reason to grant them.

[10]           As for the first of the three conclusions, it is partially repetitive of the one that precedes it in that it precludes Mr. N. from continuing existing proceedings without the prior authorization of the Chief Justice of the Superior Court. That subject is adequately covered in the underlined conclusion in paragraph [4]. It therefore would have been unnecessary to restate the same order twice.

[11]           As for the reserve of the respondent's rights to assert a damage claim against Mr. N., such a conclusion is of no value, since a party either has such a right or does not have such a right.[2] If the party does have such a right, the proper recourse must be instituted within the applicable prescriptive period. The purported reservation of rights cannot create rights that might not otherwise exist.

[12]           Finally, insofar as provisional execution is concerned, not only was there no valid request for it in any pleading, but no allegations in a pleading to explain why such an order was necessary. The judgment of the Superior Court is similarly silent to explain why the order was granted. In any event, the matter is now academic, since the judgment of the Superior Court has since been varied prospectively by the judgment of this Court rendered on December 1, 2008.

[13]           That being said, should the Court correct the error in its judgment pursuant to article 520 C.C.P.? To use the words of that provision, the failure of the Court to strike the latter three conclusions in its judgment of December 1, 2008 can be said to constitute an omission to adjudicate part of Mr. N.' demand. This has now been rendered clearer by the production of the written argument of the respondent's counsel before the trial judge that was not available to the Court at the hearing of the appeal on October 14, 2008.

[14]           Mr. N.' request to correct the Court's judgment should therefore be granted.

FOR THESE REASONS, THE COURT:

[15]           GRANTS the appellant's motions;

[16]           CORRECTS the judgment of this Court rendered on December 1, 2008 by substituting the text of paragraph [31] with the following text:

[31]      ALLOWS the appeal, without costs, and with effect upon the filing of this judgment, for the sole purpose of substituting the following text for the conclusions of the judgment of the Superior Court:

DÉCLARE le défendeur plaideur quérulent à l’égard de la demanderesse et de ses procureurs;

ENJOINT ET ORDONNE au défendeur, P... N.., sous peine d'outrage au Tribunal, de ne pas introduire de nouveau recours ni de continuer tout recours ou procédure, ni de déposer une demande en justice introductive d'instance, en Cour supérieure sans, au préalable, avoir obtenu l'autorisation écrite du juge en chef de la Cour supérieure ou d'un juge désigné par lui.

LE TOUT AVEC ENTIERS DÉPENS contre le défendeur.