2023 QCCA 1512, 2023 QCCA 1512

Air Canada c. Choquette 2023 QCCA 1512 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030781-231 ( 500-06-000717-146 ) MINUTES OF HEARING DATE: November 29, 2023 THE HONOURABLE PATRICK HEALY, J.A. APPLICANT COUNSEL Air Canada Mtre Simon J. Seida Mtre Anthony Cayer Mtre Andréa Daigle ( Blake, Cassels & Graydon ) RESPONDENT COUNSEL Robert Choquette Mtre Freddy Adams ( Adams Avocats ) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on October 13, 2023 by the Honourable Aline U.K.

Quach of the Superior Court , District of Montreal (Arts. 31 and 357 C.p.c. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING

11:21 Commencement of the hearing. Identification of counsel. 11:22 Submissions by Mtre Adams. 11:39 Submissions by Mtre Seida. 11:50 Mtre Seida formulates a verbal motion so that the exhibits 7 to 12 will be under seal. 11:51 Case management. Exchanges between the parties. 11:52 BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] Under the second paragraph of

Article 31 C.C.P. the petitioner seeks leave to appeal against a judgment of the Superior Court in the course of proceedings in a class action on the basis that it will cause irremediable injury to its vital interests. The issue concerns five exhibits that have not yet been produced in court. The judgment of the Superior Court dismissed the petitioner’s request to place the exhibits under seal and deferred to a later date a request to redact portions of an expert’s report and accompanying data. [ 2 ] The petitioner affirms that the material in the five proposed exhibits is sensitive and confidential.

It consists of data and strategic information that relate to the petitioner’s management of the supply, cost and revenue concerning fuel in its international operations. These are central issues in the action authorised before the Superior Court. The petitioner seeks to ensure that this sensitive and confidential information is not made public in the course of proceedings.

It claims that the decision of the Superior Court will allow the public disclosure of this information and would thereby cause irreversible prejudice to its vital commercial interests in a manner that could not be corrected by a final judgment. [1] [ 3 ] The motion for leave to appeal seeks an examination by the Court of the exception to the principle of open proceedings provided in

Article 12 C.C.P. and a consideration of the principles expressed by the Supreme Court in Sherman . [2] In particular, and by means of four related questions of law, the petitioner asks that this Court examine whether the commercial interests that it identifies are sufficiently substantial and legitimate to satisfy the standard required for the redress it claims. [3] The petitioner also submits that the judge erred in fact and in law in concluding that the material at issue is not vital to the protection of core and strategic interests of the company in the highly competitive market of commercial aviation. [ 4 ] The petitioner has advanced a plausible claim that the Superior Court erred in its

interpretation of

Article 12 C.C.P., Sherman and related jurisprudence. In so doing it has shown that leave to appeal is in the interests of justice and consistent with the principle of proportionality. [4] It has also demonstrated that it is in the interests of justice to suspend proceedings in the Superior Court pending appeal.

FOR THESE REASONS, THE UNDERSIGNED : [ 5 ] GRANTS the present motion for leave to appeal; [ 6 ] ORDERS that Annexes 7-12 inclusive of the petitioner’s motion for leave be placed under seal pending appeal; [ 7 ] SUSPENDS proceedings in the Superior Court pending appeal; [ 8 ] REFERS the file to the Master of the Rolls for the scheduling of a hearing of 120 minutes, namely 60 minutes for the appellant and 60 minutes for the respondent; [ 9 ] THE WHOLE, legal costs to follow.

PATRICK HEALY, J.A.