2023 QCCA 1426, 2023 QCCA 1426

Royer c. Amazon.com.ca inc. 2023 QCCA 1426 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500-09-030707-236 ( 500-06-001010-194 ) MINUTES OF HEARING DATE : November 7, 2023 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPLICANTS COUNSEL Michael Royer Ala'a Abou-khadra Mtre Jeffrey Orenstein Mtre Andrea Grass ( Groupe de droit des consommateurs ) RESPONDENT COUNSEL Amazon.com.ca inc. amazon.com inc. amazon web services canada inc. amazon web services, inc. amazon technologies, inc.

Mtre Paule Hamelin ( Gowling WLG (Canada) ) Mtre Laurianne Walker Gowling WLG (Canada) ) By videoconference Capital once bank (canada branch) capital one financiAl corporation Capital one bank (usa) national association Mtre Mirna Kaddis Mtre Noah Boudreau ( Fasken Martineau Dumoulin ) DESCRIPTION : Motion for permission for incidental leave to appeal a judgment rendered on August 1, 2023 and rectified on August 10, 2023 by the Honourable Bernard Tremblay of the Superior Court, District of Montreal (Arts. 357, 360 al. 2 et 578 C.p.c .) .

Motion for permission for incidental leave to appeal a judgment rendered on August 1, 2023 and rectified on August 10, 2023 by the Honourable Bernard Tremblay of the Superior Court, District of Montreal (Arts. 357 et 578 C.p.c .) .

Clerk at the hearing : Mélanie Camiré Room : RC-18 AUDITION 9:52 Commencement of the hearing. Identification of counsel. Preliminary comments concerning the Notice of appeal. 9:54 Submissions by Mtre Orenstein concerning the delay to produce the Notice of appeal. Exchanges between the parties. 9:59 Submissions by Mtre Hamelin. 10:04 BY THE JUDGE : Judgment – see page 4. 10:05 Conclusion of the hearing.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] By judgment rendered on August 1, 2023 (and rectified August 10, 2023), the Superior Court, District of Montreal (the honourable Bernard Tremblay) granted in part the Appellants’ Fourth Amended Application to Authorize the Bringing of a Class Action & to Appoint the Petitioners as Representatives. [1] The judge authorized the bringing of a class action by the Appellant Royer but not by the Appellant Abou-Khadra, and he limited the compensatory damages that could be claimed to the cost of additional credit monitoring beyond the two-year period offered by the Respondents. [ 2 ] On September 13, 2023, the Appellants filed a Notice of Appeal.

The appeal is limited to the issues of the status of the Appellant Abou-Khadra and the damages. [ 3 ] Thereafter, on September 21, 2023, the Capital One Respondents and the Amazon Respondents both filed motions for leave to appeal. They both seek permission to file notices of incidental appeal whereby they will ask the Court to reverse the judgment in first instance and dismiss the Fourth Amended Application. The motions for leave to appeal are before me today. *** [ 4 ] The appeals from the judgment in first instance are governed by

Article 578 C.C.P. : 578. A judgment authorizing a class action may be appealed only with leave of a judge of the Court of Appeal. A judgment denying authorization may be appealed as of right by the applicant or, with leave of a judge of the Court of Appeal, by a member of the class on whose behalf the application for authorization was filed. 578. Un jugement autorisant un recours collectif ne peut faire l'objet d'un appel qu'avec l'autorisation d'un juge de la Cour d'appel.

Un jugement refusant l'autorisation peut être porté en appel de plein droit par le demandeur ou, avec l'autorisation d'un juge de la Cour d'appel, par un membre du groupe au nom duquel la demande d'autorisation a été déposée. The appeal is heard and decided by preference. L'appel est entendu et tranché par préférence. [ 5 ] As a result, the Appellants have an appeal as of right, while the Respondents require leave to appeal for their incidental appeals.

[ 6 ] What complicates the issue in this case is that the Amazon Respondents allege that the notice of appeal filed by the Appellants was late, such that the Appellants need to obtain leave to appeal from the Court. [ 7 ] More specifically, the Amazon Respondents plead that the 30-day delay for the appeal started to run from the notice of judgment for the original judgment and not from the notice of judgment for the rectified judgment, because the notice of appeal does not relate to the conclusions which were corrected by the rectified judgment. [2] [ 8 ] Faced with this argument, the Appellants undertook to make a motion de bene esse for leave to appeal beyond the delay before a panel of three judges on January 29, 2024. [ 9 ] In the circumstances, it is appropriate to postpone the hearing of the motions for leave to file incidental appeals before the same panel. [3] FOR THESES REASONS, THE UNDERSIGNED: [ 10 ] POSTPONES the hearing on the motions for leave to file incidental appeals to January 29, 2024, at 9:30 a.m. in the Mignault courtroom.

STEPHEN W. HAMILTON, J.A.