2014 QCCA 1353, 2014 QCCA 1353

Cooperstock c. United Airlines Inc. 2014 QCCA 1353 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024539-140 (500-17-074743-124) DATE: JULY 14, 2014 PRESIDING: THE HONOURABLE MARIE-FRANCE BICH, J.A. JEREMY COOPERSTOCK PETITIONER – defendant v. UNITED AIRLINES, INC. CONTINENTAL AIRLINES, INC. ELAINE CLARK JESSICA ROSSMAN JEFF WITTIG RESPONDENTS – plaintiffs JUDGMENT [ 1 ] The respondents are suing the petitioner.

The conclusions of their amended introductory motion for the issuance of a permanent injunction are the following: WHEREFORE, PLAINTIFFS PRAY THAT BY JUDGMENT TO BE RENDERED HEREIN THIS HONOURABLE COURT: GRANT the present Motion; ORDER Defendant to remove the names and contact information of any and all employees of the Airline Plaintiffs, including but not limited to the names and contact information of the Individual Plaintiffs, from Defendant’s website www.UNTIED.com ; ORDER Defendant to refrain from ever posting the names and contact information of any of Airline Plaintiffs' employees on any website; ORDER provisional execution notwithstanding appeal; THE WHOLE with costs, including any costs of expertise. [ 2 ] Pursuant to articles 54.1 and ff.

C.C.P. , the petitioner filed a motion to dismiss the action, which was heard by the Superior Court, District of Montreal (the Honourable Madam Justice Micheline Perrault), on April 28 and 29, 2014. [ 3 ] By judgment dated June 3, 2014, Perrault J. dismissed the petitioner's motion. [ 4 ] The petitioner now seeks to appeal this judgment, pursuant to articles 29 and 511 C.C.P. * * [ 5 ] Before going further, a few elements of context are in order, for which I will refer to Perrault J.'s judgment: [1] On November 19, 2012, Plaintiffs United Air Lines (“ United ”) and Continental Airlines (“ Continental ” or collectively “ the Airlines ”), as well as three of their employees: Elaine Clark, Jessica Rossman and Jeff Wittig (“ the Individual Plaintiffs ”) instituted proceedings for the issuance of a permanent injunction against Defendant Jeremy Cooperstock whereby they seek an order prohibiting Mr.

Cooperstock from posting the names and contact information of any and all employees of the Airlines, including the Individual Plaintiffs, on UNTIED.com or any website (“ the Superior Court Action ”). [2] Mr. Cooperstock presents a Motion to dismiss the Superior Court Action as being improper, within the meaning of Articles 54.1 to 54.5 of the Code of Civil Procedure (the “ Motion to Dismiss ”).

[3] It should be noted that Mr. Cooperstock first presented two Motions. One based on Article 165(4) C.C.P. and the other on Articles 54.1 to 54.5 C.C.P. On February 15, 2013, both Motions were heard by Justice Kirkland Casgrain who dismissed them. Mr. Cooperstock sought leave to appeal from the judgment dismissing his Motion under Articles 54.1 et seq. C.C.P., but not from the judgment dismissing his Motion under Article 165 (4) C.C.P. On September 26, 2013, the Court of Appeal granted leave to appeal, quashed Justice Casgrain’s judgment and ordered a new Hearing of the Motion under Articles 54.1 et seq.

C.C.P. in the Superior Court (“ the Court of Appeal Judgment ”). [4] In its judgment, the Court of Appeal held as follows: “ [19] En l’espèce, le juge commet une erreur de droit en appliquant à la demande provisionnelle la règle qui ne vaut qu’en matière d’irrecevabilité, soit de tenir les faits allégués en demande pour avérés. [ … ] ” [5] Therefore, the Motion to Dismiss is now before this Court for the second time. [ 6 ] Needless to say, witnesses were heard and documents filed during the hearing before Perrault J., which lasted two days. * * [ 7 ] In

summary, the petitioner argues that Perrault J. applied the wrong framework to her analysis of his motion to dismiss in deciding, on the basis of Acadia Subaru v. Michaud , [1] that he had to demonstrate the existence of blameworthy conduct on the part of the respondents. In fact, according to other judgments of the Court of Appeal,

article 54.1 allows for the dismissal of a manifestly ill- founded claim even in the absence of blameworthy conduct. According to the petitioner, Perrault J., after having decided that the respondents' suit was not blameworthy, should have asked herself the following questions: is the suit of the respondents nevertheless manifestly ill-founded? Is the suit a SLAPP that should be dismissed or made subject to certain conditions? Are the respondents' proceedings otherwise abusive? [ 8 ] The petitioner also argues that Perrault J. erred in confusing the claim “that is clearly unfounded”, for the purposes of

article 54.1 C.C.P. , with the claim “that is unfounded in law, even if the facts alleged are true”, for the purposes of

article 165, para. (4), C.C.P. [ 9 ] In addition, according to the petitioner, Perrault J. incorrectly applied the law to the facts of the case, failed to recognize the fallacy of respondents' suit, which claims to protect the right to privacy of individuals whose contact information, as it appears on the petitioner website, is already in the public domain. Also, in the petitioner's view, the respondents have not demonstrated any wrongdoing on his part, the posting of public information being entirely lawful.

The respondents' suit – a SLAPP, indisputably – is therefore clearly unfounded in fact and should have been dismissed as a direct infringement of the petitioner's freedom of expression. [ 10 ] Finally, the petitioner also alleges that he was denied procedural fairness in relation with the filing by respondents of documents contained in a USB key that he could only access long after the hearing and a copy of which he never received. [2] These documents which were also misinterpreted by Perrault J. [ 11 ] Being aware of the fact that judgments dismissing motions to dismiss pursuant to

article 54.1 C.C.P. are usually not susceptible of appeal, the petitioner, relying on Cooperstock v. United Air Lines Inc. , [3] invokes an exception and argues that the protection that this provision offers against SLAPPs is meaningful only at the early stage of the proceedings. By not immediately dismissing the respondents' ill-founded suit, Perrault J. inflicted upon the petitioner an irreparable harm that cannot be remedied by the final judgment within the meaning of

article 29, sub-para. 2, C.C.P. In these circumstances, the pursuit of justice, within the meaning of

article 511 C.C.P. requires that leave be granted. * * [ 12 ] In interlocutory matters, leave will be granted upon the following cumulative conditions: - the judgment falls within one of the categories contemplated by the first or second paragraph of

article 29 C.C.P. , and - the pursuit of justice (defined at length in Weinberg v. Cinar Corporation [4] ) requires that leave be granted. [ 13 ] Judgments dismissing motions made pursuant to articles 54.1 and ff. are not susceptible of appeal, apart from a few exceptions ( res judicata and lis pendes , absence of jurisdiction, new and important questions of law which must be answered immediately to the benefit of the public interest or the administration of justice). [5] None of these exceptions applies here.

Another exception was added by the Court in the case of SLAPPs [6] and we shall see below what is to be made of this exception in the present case. [ 14 ] I am of the view, respectfully, that the motion for leave to appeal the interlocutory judgment of Perrault J. does not fulfill the applicable criteria and should be dismissed. [ 15 ] Even though Perrault J.'s analysis was partly founded on the notion that, in order to be dismissed pursuant to articles 54.1 and ff.

C.C.P. , a suit has to be blameworthy in some sort of moral sense, i.e. be indicative of some form of bad faith or recklessness, [7] she went, in fact, much further than that. Relying on the evidence before her, which she examined carefully, she actually decided that she could not come to the conclusion that the respondents' claim was ill-founded in fact [8] or that it was otherwise frivolous or abusive.

She specifically decided that the respondents' claim does not have the characteristics of a SLAPP and is not a SLAPP (see paras. 31 to 36 of her judgment, in particular) and that it is neither excessive nor unreasonable (see paras. 37 to 39, in particular), a determination which underlies all of her judgment.

On the contrary, she convincingly explained why the respondents' suit, on the basis of the prima facie evidence, is sufficiently strong to deserve not to be dismissed at this early stage of the proceedings and that it should go to trial. [9] [ 16 ] Having studied the judgment, the motion for leave to appeal and the documents annexed thereto as well as those that were

provided to me during the hearing, and having heard the arguments of the parties, I can only come to the same conclusion, for the same reasons that need not be repeated here. [ 17 ] Given that the respondents' suit does not have the characteristics of a SLAPP (as far as it can be assessed at this time), Perrault J.'s judgment is not susceptible of appeal (see supra , para. [12] and [13]). But in my opinion, even if it were, the petitioner grounds of appeal, in view of the exacting standard of appellate review, would have no chances of success before the Court. Thus, the pursuit of justice within the meaning of

article 511 C.C.P. does not require that leave be granted. [10] [ 18 ] Indeed, whatever error of law Perrault J. may have made in the manner in which she expressed the legal standard by which to assess the abusive character of the respondents' claim and conduct, or lack thereof, this (rhetorical) error did not fundamentally affect the outcome of the debate before her and an appeal on this point would have no reasonable prospect of success. [ 19 ] As far as the judge's appreciation of the evidence is concerned, the petitioner, who had the burden thereof, has failed to show the appearance or even the mere possibility of a palpable and overriding error that would justify granting leave. [ 20 ] But what about the petitioner's argument of procedural unfairness?

It is not persuasive. Having been provided, at the hearing, with a USB key containing documents that he could not access, the petitioner should have asked for a postponement, or that the cross- examination of the respondents' witnesses be delayed until he had time to review these documents, which he now deems essential. He did not and accepted that the documents be delivered to him in paper copy after the hearing.

After accessing the USB key, and discovering that it contained documents that allegedly contradicted the testimony of the respondents' witnesses and showed the abusive nature of the suit against him, he did not ask for the reopening of the hearing, which was the proper remedy. [11] Considering these circumstances, the petitioner's claim of procedural unfairness is ill-founded and cannot justify that leave be granted. [ 21 ] I would also add that, considering the limited nature of the conclusions sought by the respondents against the petitioner in their action, the rule of proportionality, within the meaning of

article 4.2 C.C.P. , strongly militates against granting leave. Motions to dismiss pursuant to articles 54.1 and ff. C.C.P. are to be heard on prima facie evidence. They are not a substitute for the trial, nor do they allow for a “trial-in-advance”. Considering the injunctive nature of the suit, it could be heard within a reasonable time, which would allow the parties to obtain a final judgment rather than suffering delays in unnecessary preliminary proceedings. [ 22 ] F OR THESE reasons , the motion for leave to appeal is DISMISSED , with costs. MARIE-FRANCE BICH, J.A. Mr.

Jeremy Cooperstock Personally Mtre Mark Bantey Gowling Lafleur Henderson For the respondents Date of hearing: July 9, 2014