2023 QCCA 1511, 2023 QCCA 1511

Bessette c. Foisy 2023 QCCA 1511 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030770-234 ( 500-11-061992-232 ) MINUTES OF HEARING DATE: November 30, 2023 THE HONOURABLE PATRICK HEALY, J.A. APPLICANTS COUNSEL Isabelle Bessette Gestion Annabelle inc. Mtre Ronald H. Levy ( De Granpré Chait ) RESPONDENTS COUNSEL Eugène Foisy 9218-2708 Québec inc.

Mtre Anne-France Goldwater Mtre Stéphanie Herbert ( Goldwater Dubé ) Mtre ÉRIC VALLIÈRES ( McMillan ) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on October 27, 2023 by the Honourable Michel A. Pinsonnault of the Superior Court , District of Montreal (Arts. 9,17, 30, 31, 32, 357 and 657 C.C.P .) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING

10:08 Commencement of the hearing. Identification of counsel. Preliminary remarks. Case management. 10:13 Submissions by Mtre Goldwater. 10:27 Comment by Mtre Levy 10:28 Mtre Goldwater resumes her submissions. 10:36 Submissions by Mtre Levy. 11:06 BY THE JUDGE: Judgment will be rendered in the minutes of the hearing and will be sent to the parties. 11:07 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The applicants seek leave to appeal against a judgment of the Superior Court on 27 October 2023 that was given in response to requests for case management submitted by both parties.

Article 32 C.C.P . is specifically concerned with appeals from decisions concerning case management and the present application is properly brought under this provision and the prevailing jurisprudence. [ 2 ] The present matter concerns proceedings in the Superior Court taken by the applicants against the respondents that allege multiple instances of commercial malfeasance to the applicants’ detriment. The details of these allegations are voluminous and complex.

The proceedings are in a preliminary stage because the relevant factual details require continuation of a meticulous investigation and subsequent analysis. [ 3 ] The commercial action between the parties is parallel to proceedings in divorce between the parties Bessette and Foisy. There is considerable overlap between these matters but there is no doubt that there are many preliminary matters that must be addressed to ensure the progress of the file. [ 4 ] The applicants were granted an order in the nature of a Mareva injunction to protect their interests in advance of the action against the respondents.

On 26 July 2023 Pinsonnault J. gave judgment to order various measures for management of the case. Among them were measures concerning an expert forensic investigation, the disclosure of documents and arrangements relating to questions of confidentiality. On 27 October 2023 Pinsonnault J. rendered a further judgment on matters of case management.

His conclusions modified material parts of the order delivered on 26 July 2023, especially with regard to the scope of the expert investigation, the progress of the investigation, the burden of costs for the investigation and access to relevant information for the preparation of the case. He based his decision on his perception of changing circumstances in the evolution of the case. [1] There is no question that the circumstances of this case have evolved.

Whether they have evolved so markedly so as to establish a transformation of the case from what it was previously is not the standard that must be met for a subsequent modification of a pearlier decision in case management. A change will suffice if it demonstrates that the renewed application for case management is not a disguised appeal against the earlier decision. [ 5 ] The applicants claim that the second judgment by Pinsonnault J. should be heard on appeal with leave because it was unreasonable and inconsistent with the guiding principles of civil procedure. [ 6 ]

Article 32 C.C.P . is an exception to the principles governing appeals from judgments rendered in the course of a proceeding. It provides that as a general rule decisions relating to case management may not be appealed. The same

article allows an exception if on application for leave to appeal the petitioner demonstrates that the matter should be referred to the Court because it unreasonable or otherwise inconsistent with the guiding principles of procedure.

The jurisprudence of this court is clear that such leave will be granted only sparingly, [2] not least because such appeals impede the primary aim in case management of facilitating the progress of files. [3] In the absence of exceptional circumstances, deference is owed to the management judge. [4] [ 7 ] There are also systemic reasons that militate against granting leave to appeal from a decision concerned with case management.

Such proceedings do not proceed according to the same rules of evidence and proof that apply at trial and decisions about case management do not engage the general principles of res judicata . Case management is designed to advance the progress of cases and to allow both the parties and the court to respond expeditiously and effectively to the exigencies of a case as it evolves. It is predicated on the exercise of broad discretion to an efficient preparation of the file.

For this purpose the most efficient manner in which to proceed is not an appeal but, where appropriate, by a renewed exercise in management. [5] Further management of a file does not preclude adjustment, alteration or reversal of previous decisions in management, provided that such modifications are reasonable in the circumstances of the case and otherwise consistent with the guiding principles of procedure, including the interests of justice and proportionality. [6] The opportunity to seek revision of such decisions upon further application also minimises the risk of irremediable prejudice to the parties.

[ 8 ] The applicant has not demonstrated exceptional circumstances that would warrant leave to appeal rather than a renewal of case- management measures in the Superior Court to advance the progress of the litigation. FOR THESE REASONS, THE UNDERSIGNED : [ 9 ] DISMISSES the present application for leave with costs of justice. PATRICK HEALY, J.A.