2015 QCCA 1302, 2015 QCCA 1302

1749522 Ontario inc. c. 3025528 Canada inc. 2015 QCCA 1302 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025364-159 (505-17-003731-082) MINUTES OF THE HEARING DATE: August 5, 2015 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL 1749522 ONTARIO INC. Mtre FRANÇOIS D. GAGNON M e Eugénie Lefebvre ( Borden Ladner Gervais, s.e.n.c.r.l., s.r.l. ) RESPONDENT COUNSEL 3025528 CANADA INC.

Mtre JONATHAN WARIN (Lavery, De Billy s.e.n.c.r.l.) IMPLEADED PARTY COUNSEL INTERGRAPH INVESTMENTS LIMITED THE COLLEGE OF FAMILY PHYSICIANS OF CANADA m tre OLIVIER COCHE ABSENT (McCarthy Tétrault s.e.n.c.r.l., s.r.l.) DESCRIPTION: Motion for leave to appeal from a judgment rendered on May 20, 2015, by the Honourable Mr. Justice Kirkland Casgrain, of the Superior Court of Quebec, District of Longueuil (Art. 29, 411 and 511 C.C.P .)

Clerk: Asma Berrak Courtroom: RC-18 HEARING 14 :19 Commencement of the hearing. Identification of counsel. Judge’s comment. 14 :22 Submission by Mtre Gagnon. Intervention by Mtre Warin. 14 :23 Judge’s comment. 14 :29 Submission by Mtre Warin. 14 :30 Mtre Gagnon has no reply to present. Suspension of the hearing. 14 :36 Resumption of the hearing. Judge’s comment. BY THE JUDGE : Judgment-see page 3. 14 :40 Conclusion of the hearing.

Clerk BY THE JUDGE JUDGMENT [ 1 ] 1749522 Ontario Inc. (Ontario Inc.) asks for leave to appeal from an interlocutory judgment of the Superior Court, District of Montreal (the Honourable Kirkland Casgrain), rendered on May 20, 2015, in which the judge modified the time allotted for examination and cross-examination of certain witnesses for the eventual hearing of the dispute on the merits. [ 2 ] The petitioner argues that the judgment significantly reduces the time available to it for presenting its case.

In the circumstances, Ontario inc. argues that its ability to make a full answer and defence is “irrevocably prejudiced” by the interlocutory judgment and seeks leave. *** [ 3 ] The motion is governed by articles 29 and 511 C.C.P. [ 4 ] Upon questioning by the undersigned, both the petitioner and the respondent recognized, quite rightly, that the judge seized of the case on the merits could extend the hearing if he or she feels that the time allotted for Ontario Inc.’s presentation of its defence is insufficient.

In that sense, it seems to me most unlikely that the petitioner’s right to a defence is “irrevocably” compromised. Moreover, Ontario Inc. has not convinced me that the judgment orders the doing of something that cannot be remedied by final judgment pursuant to

article 29 C.C.P. as that notion has been interpreted by the courts. [1] The very language employed by Casgrain, J. suggests to me that he was aware of this: he said, in his oral reasons for judgment, that “la preuve ne devrait pas durer plus que trois heures […]” [emphasis added], indicating his own view that the order might well be changed. [ 5 ] But even if the requirement of

article 29 C.C.P. were satisfied, I would have refused leave. [ 6 ] The judgment of Casgrain, J. is a case management decision. Considerations relating to the fair and efficient deployment of court time and resources require that judges be invested with sufficient discretionary authority to manage cases and thereby ensure, in

particular, that access to justice for all receive proper attention. [2] This kind of decision deserves deference on appeal. [ 7 ] This is a circumstance in which the judge decided according to his view of “la bonne marche des procédures”, to invoke the useful expression of my colleague Marcotte, J.A. [3] While the discretionary authority of a case management judge is not unfettered, disturbing a decision such as this one on appeal in name of the “pursuit of justice / les fins de la justice”, within the meaning of

article 511 C.C.P., would require some sign that the judge erred in law or exercised his discretion in an inappropriate manner that causes the petitioner a plain injustice. That demonstration is lacking here. FOR THE FOREGOING REASONS , the undersigned: [ 8 ] DISMISSES the motion, with costs. NICHOLAS KASIRER, J.A. [1] See Elitis Pharma inc . v. RX Job inc. , 2012 QCCA 1348 , para. [23] : “Il ne suffit pas, selon le texte même de l’article 29 C.p.c ., d'invoquer un préjudice irrémédiable – ou encore grave voire important – encore faut-il que le jugement final ne puisse y remédier”.