r v. GESTION J, 2015 QCCA 294

Industries Cover inc. (Syndic des) 2015 QCCA 294 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025007-154 (500-11-047250-143) DATE: Le 13 février 2015 THE HONOURABLE MARK SCHRAGER, J.A. IN THE MATTER OF THE BANKRUPTCY OF INDUSTRIES COVER INC. GUARDIAN INDUSTRIES CANADA CORP. GUARDIAN INDUSTRIES CORP. Respondents and JELD-WEN DU CANADA LTÉE APPLICANT – Intervenor v. GESTION J&N BOUDREAULT INC. RESPONDENT – Petitioner and OFFICE OF THE SUPERINTENDENT OF BANKRUPTCY CANADA Impleaded party and PRICEWATERHOUSECOOPERS INC.

Trustee JUDGMENT [ 1 ] I am tasked with the adjudication of a motion de bene esse for leave to appeal and to extend the delays of the intervenor in first instance Jeld-Wen du Canada ltée (“Jeld-Wen”). [ 2 ] The judgment of first instance was rendered by the Superior Court, District of Montreal, sitting in Commercial Division (the Honourable Michel A. Pinsonnault), on January 13, 2015, in virtue of which, the assignment and bankruptcy of Industries Cover inc. (“Cover”) was annulled.

The judgment also includes a confidentiality order to protect certain confidential information of Cover particularly from intervenor with whom it is involved in a product liability suit. [ 3 ] Guardian Industries Canada Corp. and Guardian Industries Corp., the former being the controlling shareholder of Cover, inscribed in appeal on January 23, 2015. [ 4 ] Jeld-Wen takes the position that its right to appeal is governed purely by the civil rules given that the confidentiality order appears in the judgment but after the conclusion annulling the bankruptcy. The undersigned does not agree with this proposition.

The confidentiality order is an integral part of the judgment which is an exercise of the Superior Court’s bankruptcy jurisdiction pursuant to

Section 183 of the Bankruptcy and Insolvency Act (“ B.I.A. ”). [1] [ 5 ] Alternatively, Jeld-Wen states that it may file an incidental appeal as of right, upon application of

Article 26.0.1 C.C.P. and Rule 3 of the Bankruptcy and Insolvency General Rule s [2] (“ Rules ”). Rule 3 makes the rules in civil matters suppletive. [ 6 ] This position is contested by the Respondent in appeal because it is stated that the confidentiality order is independent of the other part of the judgment. I disagree. The confidentiality order is intimately linked to the other part of the judgment annulling the bankruptcy order.

Justice Pinsonnault himself points out at paragraphs 545 and following of the judgment that this is the case and had the bankruptcy been maintained, the confidentiality issue would have become moot in his view. This is a very different situation from that in Entreprises Pro-Sag inc. c. Groupe Oslo Construction inc. , 2005 QCCA 743 , where the judgment on which the incidental appeal was based, was not the appeal between the parties before the Court. In that case, several judgments were issued on several motions to dismiss lodged by different defendants.

In the present case, there is but one judgment and as indicated above, the confidentiality conclusions are intimately linked to the other conclusions with respect to the nullity of the bankruptcy. [ 7 ] This case is also distinguishable from the situation in Hoppenheim c. Feldman [3] where my colleague, Justice Bich, J.A., found that there were in reality two judgments not directly related, albeit found in one document. As stated above, that is not the case at bar as characterized by the trial judge.

[ 8 ] I am also invited not to consider Jeld-Wen as a party since its only interest is access to documents blocked by the confidentiality order and its intervention in first instance was by way of oral representation. I disagree with this proposition. Jeld-Wen’s name is on the judgment and there are conclusions in the judgment in which it has an interest. It is a party. [ 9 ] Therefore, in my view, there is an incidental appeal as of right which has been filed within 10 days of the principal appeal. [ 10 ] Accordingly, it is not necessary to consider Jeld-Wen’s subsidiary position seeking an extension of time and leave to appeal pursuant to

Section 193 (

e) B.I.A. [ 11 ] FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 12 ] GRANTS the motion de bene esse for leave to appeal and to extend the delays in part only; [ 13 ] DECLARES that Jeld-Wen du Canada ltée does not require leave to appeal and that the motion constitutes an inscription of incidental appeal filed within the applicable legal delays; [ 14 ] COSTS to follow. MARK SCHRAGER, J.A. Mtre Yves Robillard Miller Thomson SENCRL / LLP For Guardian Industries Canada Corp. and Guardian Industries Corp. Mtre Mark Bantey Mtre Steven Nguyen Gowling Lafleur Henderson s.e.n.c.r.l.

For Jeld-Wen du Canada ltée Mtre Suzanne Gagné Mtre Mihnea Bantoiu Létourneau & Gagné Mtre William Noonan Gestion Hickson Noonan inc. For the respondent Mtre Cécile Deforges BCF s.e.n.c.r.l. For the trustee Date of hearing: February 10, 2015