Summary

Keywords

Evidence — Civil procedure — Replacement of judge — Judgment rendered on basis of transcript of stenographic notes — Consent of parties — Judicial admission — General mandate of lawyer — In absence of parties’ consent for judge to rely solely, as regards evidence, on transcripts and recordings under art. 327 of Code of Civil Procedure (“C.C.P.”), whether trial must be commenced again — Whether lawyer can consent under art. 327 C.C.P. without approval of client as part of lawyer’s general mandate — Whether this consent amounts to waiver of procedural constitutional rights — Whether lawyer’s general mandate can extend to waiving client’s rights of this kind — When there is valid consent, whether judge must recall witness or require other evidence when deficiencies in evidence raise questions — Whether art. 327 C.C.P. must be read in conjunction with art. 326 C.C.P. — What is practical purpose of art. 327 C.C.P. according to reasoning of Quebec Court of Appeal? — Whether lawyer’s consent under art. 327 C.C.P. can lead to disavowal — If not, what is appropriate remedy when that consent is not valid? — Code of Civil Procedure, CQLR, c. C-25.01, arts. 191, 326 and 327.

Summary

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The applicant, Berish Schwimmer, challenged three notices of assessment issued by the respondent Agence du revenu du Québec (“ARQ”). The case was heard by a Court of Québec judge and was taken under advisement. Because the judge was unable to act, the Chief Judge of the Court of Québec issued an order pursuant to art. 326 of the Civil Code of Procedure (“C.C.P.”) that the trial be continued and completed by Judge Forlini, who proceeded to hold a case management conference in the presence of the parties’ lawyers, including the respondent Julie Gaudreault-Martel for Mr. Schwimmer. The minutes of the management conference stated the following, among other things: [TRANSLATION] “[t]he parties consent to the judge relying solely, as regards evidence, on the transcript of the hearing”. Judge Forlini dismissed Mr. Schwimmer’s originating application for an appeal of the assessments (hereinafter “Forlini judgment”). After receiving the Forlini judgment, Mr. Schwimmer sought the disavowal of Ms. Gaudreault-Martel on the ground that he was never informed that she had consented to the judge relying solely, as regards evidence, on the recording of the trial and the transcript of the stenographic notes. The ARQ applied for the dismissal of the originating application for disavowal on grounds of abuse pursuant to art. 51 C.C.P. Judge Riverin declared the originating application for disavowal to be clearly unfounded and abusive, and he dismissed it (hereinafter “Riverin judgment”). The Quebec Court of Appeal allowed Mr. Schwimmer’s application for leave to appeal the Riverin judgment and referred the ARQ’s application for the dismissal of the appeal from the Forlini judgment to the panel that would be seized of the appeal from the Riverin judgment. The Quebec Court of Appeal found that Judge Forlini proceeded on the basis of valid consent and it dismissed the two appeals.

Lower Court Rulings