2019 QCCA 1897, 2019 QCCA 1897

3070352 Canada inc. c. Tricot Liesse (1983) inc. 2019 QCCA 1897 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028617-199 ( 500-17-087117-159 ) MINUTES OF HEARING DATE: November 8, 2019 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. CLAUDINE ROY, J.A. GENEVIÈVE COTNAM, J.A. APPLICANTS COUNSEL 3070352 CANADA INC. BRIAN CYTRYNBAUM Mtre RONALD AUDETTE Mtre CHARLES DAVIAULT ( Gowling WLG (Canada), s.e.n.c.r.l., s.r.l. ) RESPONDENTS COUNSEL TRICOT LIESSE

(1983) INC. CLAUDE HELWANI 4174925 CANADA INC. Mtre DOUGlas MITCHELL Mtre OLGA REDKO ( IMK s.e.n.c.r.l./IMK L.L.P. ) Absent IMPLEADED PARTY 126217 CANADA INC. UNREPRESENTED DESCRIPTION: Application to be authorized to appeal after the expiry of time limit from a judgment rendered on April 15, 2019 by the Honourable Gary D.D. Morrison of the Superior Court, District of Montreal (Article 363 C.C.

P) Application for permission to present indispensable new evidence (Article 380 C.C.P .) Application de bene esse for declaratory judgment (Articles 49, 107 (4) and 142 C.C.P .)

Clerk: Elisabeth Lepage Courtroom: Pierre-Basile-Mignault HEARING 9:32 Continuation of the hearing held on November 4, 2019. The parties were excused from appearing in Court. 9:33 By the Court: judgment – see page 3. Elisabeth Lepage, Clerk JUDGMENT [ 1 ] The applicants seek authorization to appeal a judgment rendered on April 15, 2019 by Justice Gary D.D.

Morrison of the Superior Court after the expiry of the legal time limit. [ 2 ] We are of the opinion that the motion should be dismissed as the applicants failed to establish (1) that it was impossible for them to act earlier and (2) that their eventual appeal has a reasonable chance of success. [ 3 ] Although the applicants state in their motion that the attorney representing them before the Superior Court failed to inform them of their right to appeal the judgment, an e-mail from that attorney, which was filed before this Court, seems to suggest that he had discussed the matter with them in the days following the reception of the judgment.

He was of the opinion that the appeal had little chance of success. The applicants did not seek another opinion at the time. It is only after a new claim was filed against them by the respondents, months later, that the possibility of appealing the judgment was raised by their new attorney, who considered it might impact their defence in the new file.

Under these circumstances, we cannot conclude that it was impossible for the applicants to act earlier in filing an appeal. [ 4 ] Furthermore, the applicants failed to convince us that the appeal, which essentially seeks to reassess the trial judge’s appreciation of the evidence adduced before him and of the credibility of the witnesses, has a reasonable chance of success.

FOR THESE REASONS, THE COURT : [ 5 ] DISMISSES the application to be authorized to appeal a judgment out of time with legal costs; [ 6 ] DECLARES the application for permission to present indispensable new evidence and the de bene esse application to confirm that the application to appeal the judgment after the expiry of the legal time limit was filed on October 15, 2019 as being moot. ALLAN R. HILTON, J.A. CLAUDINE ROY, J.A. GENEVIÈVE COTNAM, J.A.