2023 QCCA 555, 2023 QCCA 555

Per4ma Sports Technology Ltd. c. 172142 Canada inc. 2023 QCCA 555 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030005-227 ( 500-17-101425-174 ) MINUTES OF HEARING DATE: April 27, 2023 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. MARIE-JOSÉE HOGUE, J.A. BENOÎT MOORE, J.A. APPELLANTS COUNSEL PER4MA SPORTS TECHNOLOGY LTD. VISHAL PUNI Mtre MICHAEL N. BERGMAN Ms. NEILA BENFERHAT, articled student ( Bergman & Associ é

s) RESPONDENTS COUNSEL 172142 CANADA INC. HOWARD MONK Mtre DAVID BRIAN WISEMAN ( David Brian Wiseman ) On appeal from a judgment rendered on March 9, 2022 , by the Honourable Justice Bernard Synnott of the Superior Court , District of Montreal . NATURE OF THE APPEAL: Intellectual property – Patent of invention – Counterfeit – Damages – Responsibility – Defamation – Abuse of process. De Bene Esse Application for Leave to Appeal from part of the judgment of the Superior Court. (Arts. 30, 31 & 363 C.C.P. ) Clerk at the hearing : Chloé Côté-Sauvageau Courtroom: Antonio-Lamer HEARING 9:30 Commencement of the hearing.

Identification of the case and counsel. Preliminary remarks by the Court. 9:33 Submissions by Mtre Bergman on the De Bene Esse Application for Leave to Appeal.

9:36 Intervention by the Court and answer by Mtre Bergman. 9:42 Comments by the Court and answers by Mtre Bergman. 9:44 Recess of the hearing. 10:21 Resumption of the hearing. The Court informs Mtre Wiseman that it will not be necessary to hear his submissions. BY THE COURT: Unanimous judgment on the De Bene Esse Application for Leave to Appeal – see page 3. 10:23 Conclusion of the hearing.

Chloé Côté-Sauvageau, Clerk at the hearing JUDGMENT [ 1 ] Prior to the hearing, the Court asked the parties to address the need for leave to appeal from the impugned judgment. [ 2 ] The Court is of the opinion that such leave was required in this instance, given that the judgment concludes that: “the action instituted is abusive” (para. 178). The requirement of prior leave in such circumstances is well established ( Beauregard c. Boulanger , 2021 QCCA 728 ; Moghaddam c.

Succession de Naraghi , 2022 QCCA 284 ). [ 3 ] The Appellants submitted a De Bene Esse Application for Leave to Appeal under art. 363 C.C.P . on April 21, 2023. In order to obtain such leave, they must meet three conditions: (1) they must seek leave within the 6-month time limit from the date of the judgment under appeal; (2) they must show that it was impossible in fact for them to act, and (3) their appeal must have a reasonable chance of success. [ 4 ] Here, the application was filed well beyond the 6-month time limit.

Moreover, other than the general allegation that “it was impossible to submit the De Bene Esse Application within the regular delays”, the Appellants have not alleged any specific reason to explain their failure to seek leave within the time limit. But more importantly, they have failed to convince us that their appeal has any reasonable chance of success. The role of the Court of Appeal is not to retry a case, which is what the Appellants are asking the Court to do.

Where the appeal raises issues of fact or mixed issues of fact and law, the Appellants must point out overriding and palpable errors, which they have not done. FOR THESE REASONS, THE COURT: [ 5 ] DISMISSES the Appellants’ De Bene Esse Application for Leave to Appeal; [ 6 ] WITH LEGAL COSTS . GENEVIÈVE MARCOTTE, J.A. MARIE-JOSÉE HOGUE, J.A. BENOÎT MOORE, J.A.