2017 QCCA 1166, 2017 QCCA 1166

Moose International Inc. c. Moose Knuckles Canada Inc. 2017 QCCA 1166 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026885-178 (500-11-049168-152) MINUTES OF THE HEARING DATE: July 12, 2017 THE HONOURABLE nicholas kasirer, J.A. APPLICANTS COUNSEL MOOSE INTERNATIONAL INC. NOAH STERN Mtre GARY STEVEN ROSEN M tre ADAM BARZA (De Grandpré Chait s.e.n.c.r.l.) RESPONDENTS COUNSEL MOOSE KNUCKLES CANADA INC. WILLIAM POHORESKY TEXTILE CUTTING INC.

ANTOINE MOTULSKY FALARDEAU (Motulsky Avocats) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of a proceeding on June 15, 2017 by the Honourable Mr. Justice David R. Collier of the Superior Court, District of Montreal and for a safeguard order pending appeal (Art. 31, 357 and 359 C.C.P. ) Clerk: Marie Gamelin Courtroom: RC.18

HEARING 14:07 Commencement of the hearing. Identification of counsel.14:08 Exchanges between the judge and Mtre Gary Steven Rosen. Submissions by Mtre Rosen.14:17 Submissions by Mtre Antoine Motulsky Falardeau.14:20 Exchanges between the judge and Mtre Motulsky Falardeau.14:30 Reply by Mtre Rosen.14:34 Recess.14:43 Resumption of the hearing. BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing.

Marie Gamelin Clerk BY THE JUDGE JUDGMENT [1] Petitioners Moose International Inc. and Noah Stern ask for leave to appeal from a judgment of the Superior Court, District ofMontreal (the Honourable Mr Justice David Collier), rendered June 15, 2017, which granted in part their motion for an interlocutoryinjunction.

The Court did not, however, render the order requested by the petitioners that would have precluded the respondents fromengaging in all competition with them in respect of the outerwear products that are the subject-matter of the dispute between the parties. *** [2] The application for leave is made pursuant to

article 31, paragraph 2 C.C.P. [3] The petitioners have satisfied me that the judgment causes “irremediable injury / préjudice irrémédiable” within the meaning ofarticle 31 C.C.P. (see, e.g., 9045-6740 Québec inc. v. 9049-6902 Québec inc., , para. [16] (QCCA). The questionremains whether granting leave conforms to the “best interests of justice / le meilleur intérêt de la justice” pursuant to

article 9, para. 3C.C.P. [4] I am mindful that the jurisprudence recognizes considerable latitude to judges deciding matters such as these, given the factualdimension of the dispute and of the largely discretionary character of the decision to grant or refuse the order requested, and that,generally speaking, these considerations do not favour leave being granted: see, e.g., Jenbaz v. Daoud, 2016 QCCA 896 (Morissette,J.A., in chambers).

I am mindful too that the presiding judge here has been named case management judge in this dispute, and that hiscarefully written opinion contains no apparent error in the identification of the three criteria applicable to a request for an injunction atthis stage. [5] I am nevertheless of the respectful view that the petitioners have raised serious questions concerning the apparent character oftheir right to an injunction based on the judgment of the Supreme Court in Payette v.

Guay, [2013] 2 SCR 95, and its relevance to thenon-competition clause contained in the unanimous shareholders’ agreement signed by main parties here. The principles set forth inPayette are relevant as well to the balance of inconvenience as measured by the judge. These questions meet the applicable standard forleave to be granted and it is in the interest of justice that they be addressed by a panel of this Court: see, e.g., Tremblay v. Simple Conceptinc., 2010 QCCA 280 (Morissette, J.A., in chambers). In so deciding, I do not intend to limit the review the Court undertakes of thematter to this sole question.

[ 6 ] The appeal shall proceed on the accelerated track and without briefs given the plain interest in deciding the matter with dispatch. [ 7 ] Considering further my powers pursuant to

article 379 C.C.P., and my view of the importance of maintaining the status quo between the parties during the appeal proceedings, I shall render a safeguard order designed to have effect from today until the date of the hearing of the appeal, at which time the Court will have the benefit of a fuller overview of the dispute and be in a position to decide if the safeguard order should remain in place: see, e.g., Procureure générale du Québec v. 9105425 Canada inc. , 2017 QCCA 239 , (Bich, J.A., in chambers). [ 8 ] The petitioners did not request a suspension of the proceedings in first instance during the appeal.

FOR THE AFOREMENTIONED REASONS , the undersigned: [ 9 ] GRANTS the application for leave to appeal; [ 10 ] ISSUES the following safeguard order, to have effect until the day of the hearing on the merits on the appeal herein authorized: ORDERS the respondents to cease, desist and refrain from producing, importing, distributing or selling products, whether themselves or through others, which compete with Moose International Inc.’s products in Canada, the United States, Mexico, Korea, China, Japan, Europe and Russia; ORDERS the respondents to cease, desist and refrain from soliciting, either themselves or through others, clients or suppliers of Moose International Inc. for the purpose of selling products which bear Moose International Inc.’s trademarks, are copies, replicas or counterfeits of Moose International Inc.’s products, or which compete with Moose International Inc. products in Canada, the United States, Mexico, Korea, China, Japan, Europe and Russia. [ 11 ] PLACES the case on the role of October 20, 2017 in room Antonio-Lamer at 9:30 am, for a 60 minutes hearing; [ 12 ] ORDERS the appellant, after having notified a copy upon the respondent, to file in the Office of the Court, no later than August 15, 2017 , five copies of a written argument not exceeding 15 pages .

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 13 ] ORDERS the respondent, after having notified a copy upon the appellant, to file in the Office of the Court, no later than September 15, 2017 , five copies of a written argument not exceeding 15 pages and of his supplementary documents; [ 14 ] DIRECTS the parties’ attention to

article 376 C.C.P. and

article 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 15 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities. Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches. The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted ; [ 16 ] Legal costs to follow suit. nicholas kasirer, J.A.