2022 QCCA 417, 2022 QCCA 417

N&C Transportation Ltd. c. 4037308 Canada Inc. 2022 QCCA 417 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029937-224 (500-06-000720-140) DATE: March 31, 2022 BEFORE THE HONOURABLE MARK SCHRAGER, J.A. N&C TRANSPORTATION LTD. FARRIS LLP FOREMAN & COMPANY PROFESSIONAL CORPORATION ROCHON GENOVA LLP APPLICANTS – Intervenors v. 4037308 CANADA INC. RESPONDENT – Representative Plaintiff and NAVISTAR CANADA INC. NAVISTAR, INC.

NAVISTAR INTERNATIONAL CORPORATION RESPONDENTS – Defendants CORRECTED JUDGMENT [ 1 ] Seeing the clerical error of the date of the judgment of the Superior Court in respect of which leave was granted; [ 2 ] Seeing that the date of the said judgment is January 20, 2022; [ 3 ] Seeing

Article 338 C.C.P .; [ 4 ] The undersigned issues the present corrected judgment to correct paragraphs [2], [3] and [11] of his judgment of March 24, 2022 to correct the date of the judgment of the Superior Court: (…) [2] On January 20 , 2022 (notice of judgment February 1, 2022), the Superior Court, District of Montreal (the Honourable Pierre-C. Gagnon), dismissed Applicants' application for leave to intervene and for a temporary stay of a class action.

In the same document, the judge continues to then approve the settlement of the class action presented to him and issues the related orders and declarations for the implementation of that settlement. (…) [3] Applicants contend that the judgment is final and, as such, appealable as of right pursuant to

article 602 C.C.P. The undersigned is rather of the view that despite being contained in one document, two judgments were in reality issued on January 20 , 2022: one dismissed the application to intervene with costs; the other judgment authorized the settlement. The appeal of the former is subject to leave as foreseen by

article 30 para. 2

(4) C.C.P. and also as a judgment rendered in the course of a proceeding (i.e. just prior to the approval of the settlement) pursuant to

article 31 C.C.P. (…) [11] GRANTS leave to appeal the judgment of the Superior Court, District of Montreal (the Honourable Pierre-C. Gagnon) of January 20 , 2022 in record number 500-06-000720-140; MARK SCHRAGER, J.A. Mtre Bogdan-Alexandru Dobrota WOODS For Applicants

Mtre Jeffrey Orenstein CONSUMER LAW GROUP For Respondent 4037308 Canada inc. Mtre Samuel Lepage Mtre Karl Boulanger Mtre Jean Lortie MCCARTHY TÉTRAULT For Respondents Navistar Canada Inc., Navistar, Inc. and Navistar International Corporation Date of hearing: March 24, 2022 N&C Transportation Ltd. c. 4037308 Canada Inc. 2022 QCCA 417 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029937-224 ( 500-06-000720-140 ) MINUTES OF HEARING DATE: March 24, 2022 THE HONOURABLE MARK SCHRAGER, J.A.

APPLICANTS COUNSEL N&C Transportation ltd farris llp foreman & company professional corporation rochon genova llp Mtre Bogdan-Alexandru Dobrota ( Woods ) RESPONDENTS COUNSEL 4037308 canada inc. Mtre Jeffrey Orenstein ( Consumer law group ) By videoconference Navistar canada inc. navistar inc. navistar international corporation Mtre Samuel Lepage Mtre KARL BOULANGER ( McCarthy Tétrault ) By videoconference Mtre Jean Lortie ( McCarthy Tétrault )

DESCRIPTION: De bene esse Application for leave to appeal from a judgment terminating the proceeding rendered on January 20, 2022 by the Honourable Pierre-C. Gagnon of the Superior Court , District of Montreal (Articles 30 al. 2 and 357 C.C.P .). Clerk at the hearing : René Gutknecht Courtroom: RC-18 HEARING 10:15 Commencement of the hearing.

Identification of counsel. 10:18 Submissions by Mtre Dobrota. 10:34 Submissions by Mtre Lepage. 10:45 Submissions by Mtre Orenstein. 10:52 BY THE JUDGE: Judgment – see page 4. 10:53 Discussion between the Court and the counsel for the appeal management. 10:57 Conclusion of the hearing. René Gutknecht, Clerk at the hearing JUDGMENT [1] I am tasked with the adjudication of Applicants' " De bene esse application for leave to appeal a judgment approving a class action settlement". [2] On January 27, 2022 (notice of judgment February 1, 2022), the Superior Court, District of Montreal (the Honourable Pierre-C.

Gagnon), dismissed Applicants' application for leave to intervene and for a temporary stay of a class action. In the same document, the judge continues to then approve the settlement of the class action presented to him and issues the related orders and declarations for the implementation of that settlement. [3] Applicants contend that the judgment is final and, as such, appealable as of right pursuant to

article 602 C.C.P. The undersigned is rather of the view that despite being contained in one document, two judgments were in reality issued on January 22, 2022: one dismissed the application to intervene with costs; the other judgment authorized the settlement. The appeal of the former is subject to leave as foreseen by

article 30 para. 2

(4) C.C.P. and also as a judgment rendered in the course of a proceeding (i.e. just prior to the approval of the settlement) pursuant to

article 31 C.C.P. [4] Applicants contend that as out of province (British Columbia) representatives of a class action based on the same cause of action, they have the requisite interest to intervene to oppose the settlement. They contend that Quebec class members are not well served by the settlement approved by Justice Gagnon.

They allege various errors of the judge including the mischaracterization of their proceeding as a "carriage motion" as well as the erroneous approval of a settlement concluded in breach of class counsel's duties. [ 5 ] Respondents submit that even though the judge refused the right to intervene, he nevertheless heard Applicants' arguments. The undersigned's reading of the judgment does not necessarily confirm this assertion. [ 6 ] Respondents' contestation includes the assertion that the issues raised have become moot since the judgment has been executed by the publication of the requisite notices. I disagree.

The completion of execution might render the appeal moot but not, as here, the commencement of that process, where no funds have been disbursed.

Moreover, I will stay the execution. [ 7 ] The exercise of judicial discretion to refuse permission to intervene is, in principle, entitled to deference. [1] However, in this case, I am of the opinion that the requirements for leave under both articles 30 and 31 C.C.P. are satisfied in that new points of principle are raised and the refusal to allow Applicants permission to intervene may cause prejudice to the Quebec class members. [ 8 ] Accordingly, I will grant leave to appeal.

[ 9 ] Given the application of

article 31 C.C.P. , I am bound to address the continuation of the proceedings in first instance. A stay is appropriate given the commencement of execution and since the conclusions sought in appeal may become academic without such stay. FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 10 ] GRANTS Applicants " De bene esse application for leave to appeal a judgment approving a class action settlement"; [ 11 ] GRANTS leave to appeal the judgment of the Superior Court, District of Montreal (the Honourable Pierre-C.

Gagnon) of January 22, 2022 in record number 500-06-000720-140; [ 12 ] SUSPENDS the proceedings in first instance including execution of the said judgment until final judgment of the Court or other disposition of the appeal; [ 13 ] PLACES the file on the roll of August 2 nd , 2022 , in room Pierre-Basile-Mignault at 9:30 a.m., to be pleaded without briefs, for a duration of 90 minutes ( 45 minutes for the Appellants; 45 minutes for the Respondents); [ 14 ] ORDERS Appellants, after having notified a copy upon Respondents, to file in the Office of the Court, no later than April 21, 2022 , five copies of a written argument not exceeding 20 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 15 ] ORDERS Respondents, after having notified a copy upon Appellants, to file in the Office of the Court, no later than May 19, 2022 , five copies of a written argument not exceeding 20 pages each and of his supplementary documents; [ 16 ] DIRECTS the parties’ attention to

article 376 C.C.P. and

section 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 17 ] REMINDS the parties about Practice Direction G-3 (latest revision: April 20, 2021) which strongly encourages them to attach a technological version of their brief or memorandum and their book of authorities to each hard copy of those documents.

The technological version must be saved on a USB key and must be in PDF format that allows keyword searches and includes hyperlinks from the table of contents to the brief, memorandum or book of authorities and, where applicable, from the argument to the schedules. If the Word version of their argument is available, parties are also invited to put that version on the USB key. [ 18 ] THE WHOLE , legal costs to follow. MARK SCHRAGER, J.A.