2023 QCCA 1276, 2023 QCCA 1276

Marchetta c. Petros 724 inc. 2023 QCCA 1276 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030682-231 ( 460-17-003109-212 ) MINUTES OF HEARING DATE: September 29, 2023 THE HONOURABLE LORI RENÉE WEITZMAN, J.A. APPLICANT COUNSEL Angela Marchetta Mtre Seyed-Farhad Shayegh ( MMGC ) RESPONDENT COUNSEL Petros 724 inc.

ABSENT AND UNREPRESENTED IMPLEADED PARTY COUNSEL Tribunal administratif du travail ABSENT AND UNREPRESENTED DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on July 17, 2023, by the Honourable Claude Dallaire of the Superior Court , District of Bedford . (Articles 30, al. 2 and 357 C.C.P .) Clerk at the hearing : Ariane Simard-Trudel Courtroom: RC-18

HEARING 9:46 Commencement of the hearing. Identification of counsel. The respondent Petros 724 Inc. was first served unsuccessfully. Therefore, a special mode of service has been granted in this file. Mtre Hayes who represented the respondent in first instance, received notification of the procedures by email. A non-representation statement in appeal has been filed by Mtre Hayes.

Mtre Hayes informed the office clerk, by email, that the Notice of appeal and Application for leave to appeal have been sent to the respondent’s counsel in the USA. 9:48 Submissions by Mtre Shayegh. 9:51 Discussion between the judge and Mtre Shayegh. 9:56 BY THE JUDGE : Judgement – see page 4. Conclusion of the hearing.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT [ 1 ] The applicant seeks leave to appeal a judgment rendered by the Superior Court (the Honorable Claude Dallaire) on July 17, 2023, [1] dismissing her application for judicial review of a decision of the Tribunal administratif du travail, on November 15, 2021 (TAT-2), [2] which revoked an earlier decision of the Tribunal administratif rendered on May 18, 2021 (TAT-1), [3] finding that she had been wrongfully dismissed. *** [ 2 ] The applicant was hired in 2014 by the respondent, an American company selling business management software to American customers.

She worked mainly from her home in Bromont, Québec, and occasionally travelled to the United States to meet clients there. The respondent did not have any head office, residence, establishment, or place of business in Québec. [ 3 ] Following her dismissal in 2019, the applicant filed a complaint for wrongful dismissal under s. 124 of the Act respecting labour standards (the “ Act ”). TAT-1 ordered her reinstatement, but TAT-2 overturned the decision finding that the Act did not apply to her.

The Superior Court dismissed the application for judicial review finding that the TAT-2 decision was reasonable. [ 4 ] The question at issue is whether an employee domiciled in Quebec working online for a foreign company which has no business in Quebec is governed by the Act . The applicant submits that the judge erred in holding that the respondent did not have an “undertaking” or an office in Québec as contemplated in

section 2 paragraph 2 of the Act . *** [ 5 ] In the case of a judgment rendered on judicial review, leave is required pursuant to

article 30 par. 2

(5) C.C.P. and it will only be granted if the question at issue is one that should be submitted to the Court, in particular because it is a question of principle, a new question or a question of law that is the subject of conflicting case law (art. 30 par. 3 C.C.P. ). [ 6 ] In addition, to grant leave, it must be in the interests of justice to do so and must not offend the principle of proportionality. [4] Particularly in matters of judicial review, leave to appeal is to be granted parsimoniously. [5] [ 7 ] The applicant contends that the appeal raises issues of principle that go beyond this particular dispute [6] and which concern the scope of application of the Act to an increasingly common phenomenon of strictly online employment. [ 8 ] Without commenting on the chances of success of the appeal, it is my view that the applicant meets the applicable criteria and that leave to appeal should be granted.

FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] GRANTS the application for leave to appeal the judgment of the Superior Court dated July 17, 2023; [ 10 ] ORDERS the appellant to file with the Court office, no later than November 3, 2023 , five copies of a memorandum comprising an argument not exceeding 10 pages and the three schedules set out in ss. 51 and 58 R.C.A.Q.Civ.M. , after having notified a copy thereof to the parties having filed a representation or non-representation statement (ss. 55 para. 2 and 58 R.C.A.Q.Civ.M .);

[ 11 ] ALLOWS the respondent to file with the Court office, no later than December 8, 2023 , five copies of a memorandum comprising an argument not exceeding 10 pages and, if necessary, elements in addition to those in the appellant’s schedules (ss. 47 and 58 R.C.A.Q.Civ.M. ), after having notified a copy thereof to the appellant and to the parties having filed a representation or non- representation statement (ss. 55 para. 2 and 58 R.C.A.Q.Civ.M. ); [ 12 ] REMINDS the parties about the rule set out in art. 376 C.C.P. : 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. [ 13 ] REMINDS the parties that, in accordance with s. 13 R.C.A.Q.Civ.M ., they must send to the Court office a technological version of the paper version of their memoranda.

The preparation and transmission of this technological version are governed by the Chief Justice’s Directive entitled “Rules Respecting the Preparation of the PDF Version of Pleadings, Briefs, Memoranda, Books of Authorities or Any Other Document” and the Clerk’s Practice Direction No. 7 entitled “Transmission of the PDF Version of Certain Pleadings, Briefs, Memoranda and Other Documents by Means of the Digital Office of the Court of Appeal (DOCA)”; [ 14 ] REFERS the file to the Master of the Rolls for the scheduling of a hearing of 90 minutes, namely 60 minutes for the appellant and 30 minutes for the respondent; [ 15 ] THE WHOLE , legal costs to follow.

LORI RENÉE WEITZMAN, J.A.