2021 QCCA 1425, 2021 QCCA 1425

Hazan c. Micron Technology Inc. 2021 QCCA 1425 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029630-217 (500-06-000923-181) DATE: October 14, 2021 BEFORE THE HONOURABLE STEPHEN W. HAMILTON, J.A. GAY HAZAN APPELLANT – Plaintiff v. MICRON TECHNOLOGY INC. MICRON SEMICONDUCTOR PRODUCTS INC. SAMSUNG ELECTRONICS CO. LTD. SAMSUNG SEMICONDUCTOR INC. SAMSUNG ELECTRONICS CANADA INC. SK HYNIX INC., formerly known as HYNIX SEMICONDUCTOR INC. SK HYNIX AMERICA, INC., formerly known as HYNIX SEMICONDUCTOR AMERICA, INC.

RESPONDENTS - Defendants RECTIFIED JUDGMENT There was an error in the judgment rendered on September 28, 2021: the second subparagraph of paragraph 5 states that “Service was effected on these entities beyond the 30-day appeal period” when in fact it was effected within that period.

As a result of that correction, the last sentence in paragraph 6 “Similarly, with respect to the U.S. entities, the Appellant will have to make a motion to validate service beyond the 30-day delay.” should be deleted. [ 1 ] This motion attempts to resolve a practical difficulty in the international service of the notice of appeal. [ 2 ] On June 28, 2021, the Superior Court, District of Montreal (the Honourable Donald Bisson), dismissed the Appellant’s application for authorization to institute a class action against the Respondents. [1] The Appellant wishes to appeal from that judgment. [ 3 ] The difficulty relates to the service of the notice of appeal on the Respondents. [ 4 ] There are seven Respondents: two members of the Micron group (both based in the United States), three members of the Samsung group (one based in Montreal, one in the United States and one in the Republic of Korea) and two members of the SK Hynix group (one based in the United States and one in the Republic of Korea). [ 5 ] The 30-day delay for serving and filing the notice of appeal expired on August 4, 2021.

The Appellant prepared his notice of appeal and took steps to effect service well within that delay. The current status is as follows: • The Canadian entity was served by email on July 30, 2021. Service by email is in accordance with Order 2020-4267 of the Chief Justice of Québec and the Minister of Justice dated 27 March 2020, but the email address used, info.seca@samsung.com, appears to be the email address for online shopping inquiries. This is in no way the Appellant’s fault, as the counsel representing the Samsung group has failed to cooperate even minimally by providing an email address for her client.

This situation was rectified at the hearing when I ordered her to provide an appropriate email address and she acknowledged that she would do so. • The entities based in the United States have all been served by courier, which is in accordance with the Hague Convention [2] . Service was effected on these entities within the 30-day appeal period. • With respect to the two entities based in the Republic of Korea, the Hague Convention requires that the documents to be served be translated into Korean and that service be effected through the designated Central Authorities.

The Appellant filed an affidavit demonstrating that he had initiated this process on August 3, 2021, but that the firm effecting service estimates that, even in a COVID- free world, the delay for service is generally 3 to 5 months. [ 6 ] With respect to the Canadian entity, the Appellant will serve the notice of appeal at the email address provided by Samsung’s counsel and will then have to make a motion to validate service beyond the 30-day delay.

[ 7 ] The difficulty lies with service on the Korean entities. Given the delays, there is a risk that service will not be completed prior to the expiration of the six-month delay set out in

Article 363 C.C.P. [ 8 ] To get around this difficulty, the Appellant asks me, as judge alone, to issue one of various conclusions: • Declare that the Appellant properly instituted the appeal against the Korean entities on August 4, 2021; • Subsidiarily, relieve the Appellant of the default to serve the notice of appeal on them within the 30-day delay; • Order the clerk of the Court to open the present appeal file as concerns the Korean entities. [ 9 ] The Appellant argues that he had the right, notwithstanding the Hague Convention and

Article 494 C.C.P. , to serve the Korean entities by email pursuant to Order 2020-4267. This Order was adopted by the Chief Justice of Quebec and the Minister of Justice in accordance with

Article 27 C.C.P. in the context of the state of emergency created by the COVID pandemic. I doubt that a decree adopted in response to a state of emergency in Quebec can override an international treaty and how it is applied in the Republic of Korea. I prefer to defer that question to a panel of three judges. [ 10 ] This is a case where the Appellant clearly demonstrated his intention to appeal within the 30-day delay and took steps to do so, but is faced with a process for service that may not be completed within the six-month delay set out in

Article 363 C.C.P. It seems to me inconceivable that the Appellant could lose his right of appeal in those circumstances. At the hearing, the Respondents agreed. [ 11 ] However, the declarations and orders that the Appellant asks for at this stage appear to me to exceed my jurisdiction as judge alone. I prefer to defer the motion to a panel of three judges. At the same time, these extraordinary declarations and orders may not be necessary if valid service in accordance with the Hague Convention is effected within the six-month delay.

I think we should wait and see how quickly the Korean entities can be served in accordance with the Hague Convention, as valid service in accordance with the Hague Convention is the best and cleanest outcome. [ 12 ] I will therefore defer the motion to a panel of three judges of the Court sitting on December 13, 2021 in the Mignault Courtroom. [ 13 ] Finally, the Appellant asks me to extend his delay to file his brief as concerns all of the Respondents until 3 months and 10 days after service on the Korean entities. I will grant that request.

FOR THESE REASONS, THE UNDERSIGNED: [ 14 ] GRANTS IN PART the Appellant’s application de bene esse to be relieved of the default to file the notice of appeal and for extension of the delay to file the brief; [ 15 ] EXTENDS the delay for the Appellant to file his brief as concerns all of the Respondents until 3 months and 10 days after service on the last Respondent; [ 16 ] DEFERS the other relief sought to a panel of three judges of the Court sitting on December 13, 2021 in the Mignault Courtroom; [ 17 ] THE WHOLE with legal costs to follow. STEPHEN W. HAMILTON, J.A.

Mtre David Assor Mtre Joanie Lévesque LEX GROUP For Gay Hazan Mtre Simon Paransky MCMILLAN For Micron Technology inc. and Micron Semiconductor Products inc. Mtre Karine Chênevert Mme Dana Baltaji, articling student BORDEN LADNER GERVAIS For Samsung Semiconductor inc. Mtre Nicholas Rodrigo Mtre Faiz Munir Lalani DAVIES WARD PHILLIPS & VINEBERG For SK Hynix America, inc. Date of hearing: September 24, 2021