2015 QCCA 133, 2015 QCCA 133

Seville Pictures Inc. c. TVA International inc. 2015 QCCA 133 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023729-130 (500-11-018158-028) MINUTES OF THE HEARING DATE: January 21, 2015 CORAM: THE HONOURABLE ALLAN R. HILTON , J.A. DOMINIQUE BÉLANGER , J.A. MARK SCHRAGER, J.A. APPELLANT/INCIDENTAL RESPONDENT COUNSEL SEVILLE PICTURES INC. Mtre YVES ROBILLARD Mtre JULIEN MORIER (Miller Thomson SENCRL / LLP) RESPONDENTS/INCIDENTAL APPELLANTS COUNSEL tva international inc. tva international distribution inc. allégro distribution u.s. inc. jpl production inc. GROUPE TVA INC. Mtre éric c. lefebvre Mtre DOMINIC DUPOY (Norton Rose Fulbright Canada S.E.N.C.R.L., s.r.l.)

In appeal from a judgment rendered on June 11, 2013 by the Honourable Mr. Justice Joël A. Silcoff of the Superior Court, District of Montreal NATURE OF THE APPEAL : Contract – formation – offer and acceptance Clerk: Linda Côté Courtroom: Pierre-Basile-Mignault HEARING 9:30 Counsel have been advised that a judgment will be rendered today, without a hearing and without costs. The parties are not present at today's hearing. Clerk BY THE COURT JUDGMENT [ 1 ] This is an appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Joel Silcoff) rendered on June 11, 2013 in virtue of which the appellant’s action was dismissed and the respondents’ cross-demand was maintained, in part. By judgment of January 28, 2013, the judge ordered that both the principal action and cross-demand be split so that he only heard the parties and rendered the aforementioned judgment on the issue of fault.

Accordingly, the judgment under appeal also ordered the continuation of proof and hearing on the cross-demand “in order to receive evidence and arguments on behalf of the respective parties addressing causation and quantum”. [ 2 ] The respondents have filed an incidental appeal seeking a declaration that the principal demand and cross-defence were abusive and that the trial judge omitted to adjudicate their motion to that effect. [ 3 ]

Article 273.2 C.C.P. provides that where proceedings have been split, the right to appeal only arises upon the judgment that terminates the proceedings : [ 4 ]

273.2 . No appeal lies from the judgment on the application for the splitting of an action; the right to appeal judgments on the merits only arises upon the issue of the judgment terminating the proceedings. 273.2.

Le jugement sur la demande de scission est sans appel; le droit d'appeler des jugements rendus sur le fond de l'instance ne prend naissance qu'à compter du jugement qui y met fin. [ 5 ] Given the foregoing, the parties were advised by this Court, prior to the hearing of the appeal, that because judgment had not been rendered on the issues of causation and quantum of damages arising out of the cross-demand, the proceedings were not as yet, terminated.

Accordingly, the appeal and incidental appeal are premature. [ 6 ] The judgment on the cross-demand is clearly not final as causation and quantum remain to be adjudicated. [ 7 ] Even though the judgment dismissing appellant's action is final, it is included in a case where the proceedings were split and, where the cross-demand is not fully adjudicated.

Moreover, even if the Court were to hear the principal appeal and decide that the trial judge erred in dismissing the appellant's recourse, it would still have to return the file to the Superior Court for a determination of the causal nature of the respondents' fault and the quantum arising therefrom. [ 8 ] Thus, the right to appeal is suspended. [1] The proceedings have not been terminated as required by

article 273.2 C.C.P . [ 9 ] While it is true that the cross-demand can subsist as a separate action following a discontinuance of the principal demand, [2] the cross-demand and the principal demand are, nevertheless, part of the same proceedings. [ 10 ] This

interpretation flows from the text of

article 273.2 C.C.P. and also from concerns for proportionality and an efficient deployment of judicial resources. It would hardly be efficient that an appeal from the judgment dismissing the principal demand be treated separately by one panel of the Court of Appeal while the judgment on the cross-demand is adjudicated subsequently by a potentially different panel of this Court. [ 11 ] However, in fairness to the parties who have invested in the preparation of a lengthy joint record, the principal appeal and incidental appeal will not be dismissed.

Rather, the case will be struck from the roll with the order that once judgment is rendered in the Superior Court on the issues of causation and quantum in the cross-demand, this case will, once again, be eligible to be placed on the roll and joined to any appeal of such subsequent judgment of the Superior Court on the cross-demand. [ 12 ] FOR THESE REASONS, THE COURT : [ 13 ] STRIKES the appeal and incidental appeal from the roll; [ 14 ] SUSPENDS the hearing of the appellant's appeal; [ 15 ] ORDERS that the suspension be lifted upon the service on the adverse party and the filing of a notice by either party in the Registry of this Court that judgment has been rendered by the Superior Court on the issues of causation and quantum of the cross- demand; such notice to be given within 45 days of any such judgment; [ 16 ] ORDERS that the appeal and incidental appeal be joined for hearing to the appeal, if any, from the judgment to be rendered by the Superior Court on the cross-demand; [ 17 ] ORDERS , in the absence of any such further appeal arising out of the judgment to be rendered by the Superior Court, that the present appeal be placed anew on the roll for hearing by preference; [ 18 ] THE WHOLE without costs.

ALLAN R. HILTON, J.A. DOMINIQUE BÉLANGER, J.A.

MARK SCHRAGER, J.A.