2020 QCCA 887, 2020 QCCA 887

Partner Reinsurance Company Ltd. c. Optimum Réassurance inc. 2020 QCCA 887 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028972-206 ( 500-11-056724-194 ) MINUTES OF HEARING DATE: July 9, 2020 THE HONOURABLE MARK SCHRAGER, J.A. APPLICANT COUNSEL Partner reinsurance company ltd . Mtre DOUG MITCHELL Mtre MIRIAM CLOUTHIER ( IMK ) By videoconference RESPONDENT COUNSEL Optimum Réassurance inc. Mtre ERIC C.

LEFEBVRE Mtre CHARLES-ANTOINE PÉLADEAU ( Norton Rose Fulbright Canada ) By videoconference DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on June 12, 2020 by the Honourable Michel A. Pinsonnault of the Superior Court , District of Montreal and for stay of proceedings in Superior court (Art. 31, 355 et 514 C.C.P. ). Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 12:06 Commencement of the hearing. Identification of counsel. Preliminary comments. 12:07 Submissions by Mtre Mitchell. 12:24 Submissions by Mtre Lefebvre.

12:07 Reply by Mtre Mitchell. 12:42 BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] Partner Reinsurance Company Ltd. (« Partner ») seeks leave to appeal the judgment rendered on June 12, 2020 by the Superior Court, District of Montreal (the Honourable Michel A.

Pinsonnault) granting the Respondent’s, Optimum Réassurance inc. (hereinafter “Optimum”), application for provisional interlocutory injunction and safeguard order. [ 2 ] This litigation was commenced in 2019 by Optimum seeking a declaratory judgment regarding the purported exercise by it of its rights concerning a portfolio of insurance policies. [ 3 ] Partner’s contestation of the jurisdiction of the Québec courts was dismissed by the Court on April 3, 2020. [1] Then on April 30, 2020, Partner notified Optimum that failing receipt of 30 million dollars due, according to it under the agreements, it would cancel the agreements between the parties.

The rights under these agreements are the subject of the proceedings for which a declaratory judgment is sought by Optimum. The latter replied with the motion for injunction and safeguard order. [ 4 ] The judge granted the motion in part and issued an order suspending the notice of default until judgment on the declaratory proceedings.

The judge also fixed the merits before him for August 19 and 20, 2020 and authorized Optimum to make disputed payments to an independent trust company in the interim. [ 5 ] Partner contends that the order is illegal since a provisional injunction may only be granted for a period not exceeding ten days. It adds that the judge prejudged the merits without the proper evidence and adjudicated ultra petita by setting a trial date when the matter is not yet ready to be tried. He did not consult the lawyers about their readiness to proceed to trial.

Partner says discovery has not been completed nor has a joint declaration been filed. Partner also contests the judge’s finding that Optimum would suffer irreparable harm by the maturity of the default notice prior to the hearing of the merits of the declaratory proceedings. [ 6 ] Leave to appeal is governed by

article 31 C.C.P. so that the party seeking leave must demonstrate that the issues have been decided in part or that the judgment causes it irremedial prejudice. Neither is the case even though Partner may have reason to object to the judgment or to the manner it was issued. [ 7 ] Partner did not produce before the undersigned the motion before the judge but it is evident that in this case, pending since 2019, that it was open to the judge to issue a safeguard order based on the proceedings before him or even of his own initiative as provided by article 158(8) C.C.P.

The judge may not have expressed himself as such but the jurisdiction exists, nonetheless. This is not a situation where a safeguard order was issued instead of or in the place of an interlocutory injuction. [2] [ 8 ] Equally, the judge (who was seized of the matter as case management judge since 2019), had jurisdiction to set a trial date (even at his own initiative) pursuant to article 158(1) C.C.P. or under the general powers conferred upon him pursuant to

article 49 C.C.P. [ 9 ] In the circumstances as described above, the judge, in the exercise of his discretion, issued an order to, in effect, maintain the status quo between the parties until trial and then by way of case management he set an accelerated date for the hearing on the merits before him. Even if, as Partner suggests, the case management aspect leaves to be desired, this is no matter for leave under

Article 31 C.C.P. and is not so unreasonable as to warrant leave under

Article 32 C.C.P. If adjustments are required, the judge is the one to make them. [ 10 ] There is no irreparable harm created by this. If any harm is suffered by Partner, it is monetary and is susceptible of remedy once the rights of the parties are determined on the merits. [ 11 ] The judge was required to examine the rights asserted, albeit on a prima facie basis which in no way means that the merits have been prejudged by him. Partner alleges that the judge’s finding of abusive behaviour on its part should disqualify him from presiding on the merits.

This is not a ground to justify the granting of leave pursuant to Articles 31 or 32 C.C.P. Partner has recourse to address such matter if it wishes but not here and not now. FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 12 ] DISMISSES the Application for leave to appeal and for a stay of the proceedings in Superior Court with legal costs.

MARK SCHRAGER, J.A.