2023 QCCA 254, 2023 QCCA 254

Honeywell International Inc. c. Bombardier inc. 2023 QCCA 254 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030339-220 ( 500-17-095980-168 ) MINUTES OF HEARING DATE: February 21, 2023 THE HONOURABLE GUY COURNOYER, J.A. APPLICANT COUNSEL Honeywell international inc. M tre George J. PolLaCk Mtre Léon Moubayed M tre Hannah Toledano M tre Pierre Lantoin ( Davies Ward Phillips & Vineberg ) RESPONDENT COUNSEL Bombardier inc.

Mtre Mason Poplaw M tre Jean- Philippe Mathieu M tre Sarah Woods ( McCarthy Tétrault ) Mtre ERIC MONGEAU Mtre JEAN-FRANÇOIS FORGET ( Stikeman Elliott ) Of counsel DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on November 24, 2022 by the Honourable Mr. Justice David R. Collier of the Superior Court , District of Montreal . (Articles 31 and 357 C.C.P .)

Clerk at the hearing : Ariane Simard-Trudel Courtroom: RC-18 HEARING 9:35 Commencement of the hearing. Identification of counsel. 9:37 Submission by Mtre Pollack. Discussion between the judge and Mtre Pollack. 9:57 Submission by Mtre Poplaw. Discussion between the judge and Mtre Poplaw. 9:58 Mtre Poplaw resumes his submission. 10:05 Discussion between the judge and Mtre Poplaw. 10:17 Reply by Mtre Pollack. 10:22 Discussion between the judge and all counsel. Recess of the hearing. 12:16 Resumption of the hearing. BY THE JUDGE : Judgment – see page 4. Conclusion of the hearing.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT [ 1 ] I am seized with a leave to appeal application on case management measures in complex commercial litigation “which involves a dispute respecting the parties’ rights under three contracts for the supply by Honeywell of aircraft propulsion units for Bombardier’s Challenger 300, Challenger 350 and CSeries programs”. [1] [ 2 ] This bifurcated case [2] is set to go to trial next fall for 18 days. [ 3 ] For convenience, I am quoting the first two paragraphs of the leave application: [1] The parties are engaged in specially managed case litigation.

On November 24, 2022, they appeared before the Court below for a hearing concerning the Appellant’s disclosure of evidence. By its Amended Notice of Case Management (the “ Notice ”) ( Exhibit R-1 ), the Respondent took the position that the Appellant could not possibly have disclosed all documents that have been requested and that it should be ordered to provide an affidavit (attached to the Notice).

The affidavit, which it exclusively authored, contains excessively broad wording with absolute conclusions which goes well-beyond any reasonable good faith knowledge and belief, particularly considering the nearly 30-year period in question, rendering it impossible to sign. [2] The Appellant’s position is that it had complied with its obligations, that it had gone above and beyond what is required in terms of disclosure and that there was no reason why it should be forced to provide an affidavit. At the hearing, the Appellant produced a letter addressed to the Court below by Ms.

Tarsha Luke, Chief Litigation Counsel of the Appellant (the “ Appellant’s Letter ”) ( Exhibit R-2 ) explaining the lengths the Appellant went to in response to the Respondent’s requests for production of documents. As appears from the judgment rendered by the Court below (the “ Order ”) ( Exhibit R-3 ), the sincerity of the Appellant’s Letter was accepted. [ 4 ] The minutes of the proceeding on November 24, 2022 explain the context and the reasons for the case management measures

ordered: Bombardier requests the Court to order a Honeywell representative to sign an affidavit confirming that the company has disclosed all the documents in its possession, or under its control, that are responsive to Bombardier's requests for undertakings and the Court's rulings concerning the disclosure of evidence.

Honeywell argues that it has made full disclosure and that an affidavit is not necessary. lt points to a letter from Honeywell's Chief Litigation Counsel, Ms Tarsha Luke, dated November 23, 2022, in which she states that Honeywell has fulfilled its duty to "exhaust all reasonable efforts to ensure full disclosure of all information, including documents, relevant to the litigation." ln her letter, Ms Luke describes the efforts made by Honeywell to comply with its disclosure obligations since the beginning of this litigation. Bombardier is not satisfied with the responses and explanations offered by Honeywell.

Bombardier points out that very few documents have been transmitted to it by Honeywell in response to questions relating to the implementation and execution at Honeywell of programs intended to reduce costs to Bombardier. Bombardier believes it is unlikely that so few documents would exist at a large company like Honeywell in relation to its cost reduction programs. The Court notes that only a small number of documents have been identified by Honeywell in relation to its cost reduction and most favoured client obligations owed to Bombardier under the parties' contracts.

The documents communicated to Bombardier appear to be limited to reports made by Honeywell staff to senior management between 2013 and 2015. There are no documents relating to the periods before or after 2013 to 2015. Furthermore, none of the reports is accompanied by supporting documents (memos, notes, analyses, etc). The Court also notes that documents 14, 16, 16.1 and 16.2 were provided to Bombardier long after the initial request was made, and after Honeywell had indicated that all relevant documents had been provided. The Court does not question the sincerity of Ms Luke's November 23 letter.

However, in light of the small number of documents provided to Bombardier to date, some of which were provided late, it is appropriate to require Honeywell to affirm in a sworn affidavit that it has made all reasonable measures to comply with Bombardier's requests for information, and that all information and documents in its possession or under its control have been provided . The-draft affidavit attached to Bombardier's Modified Notice of Case Management will serve as a template for the affidavit to be provided by Honeywell. Honeywell may, of course, add to it, but may not detract from it.

As regards paragraph 10 of the draft, Honeywell may affirm that, following its investigations, there exist no other documents to the best of its knowledge . The Court would expect such an affidavit to be signed and transmitted to Bombardier's counsel within a delay of thirty days. Finally, the Court grants Bombardier's request to obtain a copy of the "Directive" circulated by Honeywell to its personnel on May 13, 2016. This document is referred to in the third paragraph of Ms Luke's November 23 letter.

This ruling is subject to the representations Honeywell's counsel may have respecting the privileged or confidential nature of all or parts of the document, and which shall be made in writing to the Court within the next two weeks. [Emphasis added] [ 5 ] While the issue raised by the application may be interesting, I am inclined to defer, as I should, to the discretion of the case management judge, who has his finger on the pulse of this protracted litigation filed in 2016. [ 6 ] I note that the applicant is fully aware that the judge’s order has not been complied with, that no stay has been sought and that the order should therefore be complied with promptly if I deny leave.

THEREFORE, THE UNDERSIGNED: [ 7 ] DISMISSES the application for leave to appeal; [ 8 ] THE WHOLE , with legal costs. GUY COURNOYER, J.A.