2024 QCCA 22, 2024 QCCA 22

S.N. c. Miller 2024 QCCA 22 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-700210-230 ( 500-06-001225-230 ) MINUTES OF HEARING DATE: January 10, 2024 THE HONOURABLE MARIE-FRANCE BICH, J.A. APPLICANT COUNSEL S.N. Mtre ANDREA GRASS Mtre JEFFREY ORENSTEIN ( Consumer Law Group ) Absent RESPONDENTS COUNSEL ROBERT GERALD MILLER Mtre KARIM RENNO Mtre AVA LIAGHATI ( Renno Vathilakis ) Absent FUTURE ELECTRONICS INC. Mtre JEAN-PIERRE SHEPPARD Mtre WILLIAM-ANTHONY MARCHETTI- BERRY ( Robinson Sheppard Shapiro ) Absent

IMPLEADED PARTIES ALONIM INVESTMENTS INC. ROBMILCO HOLDINGS LTD. MULTIFORM PROPERTIES INC. 4306805 CANADA INC. 11172247 CANADA INC. RODNEY MILLER ABSENT AND UNREPRESENTED DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on November 27, 2023 by the Honourable Eleni Yiannakis of the Superior Court , District of Montreal (articles 30, 31, 32 and 357 C.C.P. ). Clerk at the hearing : Chloé Côté-Sauvageau Courtroom: RC-18 HEARING Continuation of the hearing held on January 8, 2024. Counsel were excused from appearing in Court. BY THE JUDGE: Judgment – see page 4.

Chloé Côté-Sauvageau, Clerk at the hearing JUDGMENT [ 1 ] The applicant seeks to appeal the judgment rendered on November 27, 2023, by the Superior Court, District of Montreal (the honourable Madam Justice Eleni Yiannakis), dismissing her motion for a provisional Mareva injunction and safeguard order against the respondents and impleaded parties (five of which are corporate entities directly or indirectly controlled by the respondent Miller, the sixth being his son to whom he transferred one of his properties through various corporate manoeuvres). [1] [ 2 ] The application is governed by art. 31 C.C.P. as the judgment of the Superior Court was rendered in the course of class action proceedings, and more precisely at the authorization stage of said proceedings (the application for authorization to institute a class action against the respondents was filed before the Superior Court in February 2023 and the Mareva application last October). [ 3 ] According to the judgment of the Superior Court, the Mareva injunction could not be issued as the applicant, although holding an apparent right against the respondents (but not against the impleaded parties, in the judge’s opinion), did not demonstrate that there is a real risk of disappearance or dissipation of the assets of the respondents (which they hold directly or through the impleaded parties) such as to render the judgment on the merits of the class action (were the latter to be successful) impossible to execute.

Considering her conclusion in that respect, the judge (though stating her doubts in obiter ) did not find useful to decide whether or not, as a matter of

principle, Mareva injunctions can be issued at the authorization stage of a class action or only after the authorization is granted and the class action instituted. [ 4 ] Roughly summarized, the applicant’s grounds of appeal are as follows: - the judge erred in law in not deciding whether a Mareva injunction can be issued before a class action is authorized (according to the applicant, this question is an important and novel question of law); - she also erred in law in assessing “the probative value of the evidence in the Mareva Motion as if it were on a final or second-to- final (interlocutory) stage, when it was more preliminary (provisional and safeguard)”, [2] whereas “the allegations of the Applicant should have been taken for true and the evidence not having been weighed”; [3] - she further erred in concluding that, taken together, the various facts alleged by the applicant, and which were not really contested by the respondents, amounted to evidence that the execution of the final judgment granting the applicant’s class action (if such is authorized) would be in peril (on that point, the applicant basically reiterates the arguments submitted to the Superior Court, asking the Court to reassess the matter entirely). * * [ 5 ] For the following reasons, leave to appeal will not be granted. [ 6 ] In order to obtain leave to appeal of a judgment rendered in the course of a proceeding, the applicant must, pursuant to art. 31 C.C.P. , establish that 1° the judgment at stake determines part of the dispute or causes her irremediable injury, 2° said judgment is tainted by potentially reviewable errors, and 3° granting leave would be in the interest of justice in that the appeal raises a question deserving the attention of the Court and consistent with the guiding principles of procedure, including that of proportionality. [4] The applicant must also demonstrate that the appeal has reasonable chances of success. [5] Needless to say, it is not in the interest of justice to grant leave when the appeal is doomed to failure.

These cumulative criteria are particularly stringent when applied to provisional or safeguard orders (both discretionary and not binding), [6] as is the case here, and leave to appeal will be granted in exceptional circumstances only. [ 7 ] The applicant failed to discharge this burden on all three conditions. [ 8 ] Firstly, the Judgment caused no irremediable injury to the applicant (nor the class she wishes to represent) insofar as she is not precluded to renew her Mareva application if she discovers additional facts that could support her claim.

That it would probably be useless for her to pursue her present Mareva application to the interlocutory stage, in the absence of facts other than those presented to Justice Yiannakis, cannot be equated with an irremediable injury.

She may also have other means of protecting her future right to execution, such as seizure before judgment or, in the case of the transfer of the Westmount property to mis en cause Rodney Miller, paulian action [7] . [ 9 ] Secondly, the judge did not commit any reviewable error of law in determining the criteria for the issuance of a Mareva injunction nor in determining the burden of proof incumbent upon the applicant (which requires a prima facie demonstration) [8] , except, perhaps, on one point, concerning the absence of specific allegations against the impleaded parties in the Mareva Motion.

This error, however, is without consequence considering the conclusion of the judge that the respondents do not engage or have not engaged in conduct indicating that they are trying to “dilapidate or hide their assets in order to evade the execution of a potentially favourable judgment on the merits of the class action [reference omitted].” [9] [ 10 ] This is a matter of factual assessment: were the facts alleged by the applicant – which the judge took for true except on one or two minor aspects – sufficient to establish a real and objective risk that the respondents are attempting to or will dissipate or hide their assets in order to make themselves “judgment proof”?

The judge of the Superior Court noted that potential difficulties in executing a future judgment cannot be conflated with a risk of dissipation or hiding of assets [10] nor can they justify, as such, the issuance of a Mareva injunction. Because of their severe effects, Mareva injunctions must remain exceptional.

They are also highly discretionary remedies, which calls for deference in appeal. [11] [ 11 ] Besides stating her disagreement with the judge’s assessment of the situation, the applicant does not actually point out any palpable and overriding error in the conclusions or reasoning of the judge that would justify the Court to intervene.

Considering the exacting appellate standard of review in matters of provisional injunctions and safeguard orders, the appeal is thus deprived of any reasonable chance of success. [ 12 ] Finally, the question raised by the applicant as to the possibility of issuing a Mareva injunction at the authorization stage of a class action cannot justify that leave to appeal be granted.

In the circumstances of the present case, this question is purely theoretical and need not be addressed at this time. * * For the above-mentioned reasons, the undersigned: [ 13 ] DISMISSES the application for leave to appeal, with legal costs.

MARIE-FRANCE BICH, J.A.