2022 QCCA 435, 2022 QCCA 435

Option Consommateurs c. Samsung Electronics Canada Inc. 2022 QCCA 435 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029740-214 , 500-09-029791-217 , 500-09-029964-228 ( 500-06-000816-161 ) MINUTES OF THE HEARING DATE: March 25, 2022 CORAM: THE HONOURABLE GENEVIÈVE COTNAM, J.C.A. MICHEL BEAUPRÉ, J.C.A. PETER KALICHMAN, J.C.A. No.: 500-09-029740-214 APPLICANT COUNSEL OPTION CONSOMMATEURS Mtre MAXIME NASR Mtre LÉANIE CARDINAL ( Belleau Lapointe ) Mtre JEAN-PHILIPPE LINCOURT ( Belleau Lapointe ) By videoconference RESPONDENTS COUNSEL SAMSUNG ELECTRONICS CANADA INC.

SAMSUNG ELECTRONICS CO., LTD. Mtre JOSÉANE CHRÉTIEN YASSIN ÉLISE GAGNON-DJALO ( Mcmillan ) No.: 500-09-029791-217 APPLICANT COUNSEL

OPTION CONSOMMATEURS Mtre MAXIME NASR Mtre LÉANIE CARDINAL ( Belleau Lapointe ) Mtre JEAN-PHILIPPE LINCOURT ( Belleau Lapointe ) By videoconference RESPONDENTS COUNSEL SAMSUNG ELECTRONICS CANADA INC. SAMSUNG ELECTRONICS CO., LTD. Mtre JOSÉANE CHRÉTIEN YASSIN ÉLISE GAGNON-DJALO ( McMillan ) No.: 500-09-029964-228 APPLICANT COUNSEL OPTION CONSOMMATEURS Mtre MAXIME NASR Mtre LÉANIE CARDINAL ( Belleau Lapointe ) Mtre JEAN-PHILIPPE LINCOURT ( Belleau Lapointe ) By videoconference RESPONDENTS COUNSEL SAMSUNG ELECTRONICS CANADA INC. SAMSUNG ELECTRONICS CO., LTD. Mtre JOSÉANE CHRÉTIEN YASSIN ÉLISE GAGNON-DJALO ( McMillan )

DESCRIPTION: 500-09-029740-214 Application for leave to appeal after the expiry of time limit (art. 363 C.C.P .). Application for leave to appeal from a judgment rendered on September 13, 2021 and rectified on October 7, 2021 by the Honourable Gregory Moore of the Superior Court, District of Montreal (art. 31 and 357 C.C.P .). 500-09-029791-217 Application for leave to appeal after the expiry of time limit (art. 363 C.C.P .).

Application for leave to appeal from a judgment rendered on October 28, 2021 by the Honourable Gregory Moore of the Superior Court, District of Montreal (art. 31 and 357 C.C.P .). 500-09-029964-228 Application for leave to appeal from a judgment rendered on March 2, 2022 by the Honourable Gregory Moore of the Superior Court, District of Montreal (art. 31 and 357 C.C.P .). Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 9:50 Continuation of the hearing in the files 500-09-029740-214 and 500-09-029791- 217. Commencement of the hearing in the file 500-09-029964-228.

Identification of counsel. 9:50 Submissions by Mtre Nasr. 10:01 Submissions by Mtre Chrétien. 10:18 Recess of the hearing. 10:27 Resumption of the hearing. 10:27 By the Court: judgment- see page 5. Robert Osadchuck, Clerk at the hearing JUDGMENT [ 1 ] The Applicant seeks leave to appeal three related judgments rendered by the Superior Court in the district of Montreal (the Honourable Gregory Moore), each of which addresses issues raised in the course of pre-trial examinations.

[ 2 ] The first judgment, which was rendered on September 13, 2021 and was corrected on October 7, 2021, granted certain objections raised by the Respondents (the First Judgment ). [ 3 ] The second judgment was rendered on October 28, 2021 and dismissed the Applicant’s request to continue the pre-trial examination of a representative of Respondent, Samsung Electronics Canada Inc. ( SECA ) (the Second Judgment ). [ 4 ] The third judgment was rendered on March 2, 2022, ordering the Respondents to comply with three undertakings but allowing them to redact certain information from the documents to be provided (the Third Judgment ). [ 5 ] In regards to the First and Second Judgments, the Applicant seeks authorization to appeal outside the delays in accordance with

Article 363 C.C.P. * * * [ 6 ] The Applicant was authorized to bring class action proceedings against the Respondents in connection with the manufacture and sale of washing machines that it claims suffer from a hidden defect that results in such excessive vibration that the machines are in danger of exploding. [ 7 ] Samsung initiated a voluntary recall of the washers. Customers could opt for free at-home repairs or, depending on the age of their machine, a rebate on the purchase of a new washer.

In addition, the Respondents compensated customers whose washers were damaged. [ 8 ] The Applicant maintains that the recall is inadequate and that the members are entitled to damages for the trouble and inconvenience caused by the defect. [ 9 ] The Applicant conducted pre-trial examinations of representatives of each of the two Respondents in the course of which the Respondents objected to a number of questions and requests for undertakings, all of which were submitted for adjudication.

The Applicant seeks leave to appeal the First Judgment in regards to four objections that were maintained and which prevent it from obtaining the information and documentation requested in Undertakings 6, 8, 14 and 17.

U-6: To provide copy of the 64 reports re: tops detaching; U-8: To provide copy of the email sent to retailers re: recall notice, with copy of responses from retailers; U-14: To verify whether conversations with consumers were recorded; if so, to provide copy of the recordings; U-17: To verify whether there is a record re: the 4,694 class members; if so, to provide copy of same. [ 10 ] In addition to the adjudication of the objections, the Applicant sought permission to examine a second representative of SECA in regards to questions that the first representative could not answer.

In the Second Judgment, permission was granted in regards to all but one of the subjects that the Applicant intended to cover in the follow-up examination. As regards the remaining subject, the Judge ruled that the question was not relevant in light of the First Judgment. [ 11 ] Finally, the Applicant sent a case management notice to address certain undertakings that had either not been provided (U-10) or had not been completely satisfied (U-11, U-12).

In the Third Judgment, the Respondents were ordered to comply with the remaining undertakings but were authorized to redact names and addresses from the information to be provided.

The relevant conclusions of the Third Judgment read as follows: [28] ORDONNE à Samsung Electronics Canada inc. de répondre à l’engagement U-10 de l’interrogatoire d’Anand Majithia avant le 11 mars 2022 et AUTORISE Samsung Electronics Canada inc. à caviarder les noms et adresses des clients qui apparaissent au dossier en question; [29] ORDONNE à Samsung Electronics Canada inc. de fournir à Option consommateurs des réponses non caviardées aux engagements U-11 et U-12 de l’interrogatoire d’Anand Majithia avant le 11 mars 2022, mais AUTORISE Samsung Electronics Canada inc. à caviarder les noms et adresses qui apparaissent au Customer Incident Log aux pages 179 et suivants du document.pdf; The delay to appeal [ 12 ] In regards to its motions for leave to appeal the First and Second Judgments, the Applicant brought motions for special mode of service in order to be authorized to serve Respondent, Samsung Electronics Co., Ltd. ( SEC ), which is domiciled in South Korea. [ 13 ] The Court granted the motions for special mode of service and authorized the Applicant to serve SEC in the hands of its Canadian lawyers.

By the time the judgment granting the motions for special mode of service was rendered, the delays to appeal had expired, which explains the Applicant’s requests to appeal outside the delays. [ 14 ] In regards to the First Judgment, the motion for leave to appeal, along with a notice of appeal and a motion for special mode of service, was filed on October 21, 2021, which is within thirty days of the corrected judgment of October 7, 2021 but is more than thirty days from the original judgment of September 21, 2021. [ 15 ] A correction to the First Judgment was necessary because the Judge had failed to rule on an objection that had been debated by the parties.

The conclusions of the First Judgment were thus corrected to indicate that objection 8 was dismissed. [ 16 ]

Article 338 C.C.P . provides that the time limit for appeal begins to run on the date of the corrected judgment, if the correction is to “the operative part of the judgment”.

[ 17 ] SEC argues that under the circumstances, the delay to appeal should run from the original judgment because the appeal does not concern the corrected portion of the First Judgment. [ 18 ] The Court does not agree. [ 19 ] The correction to the First Judgment resulted in a change to its conclusions which is precisely what is contemplated by

Article 338 C.P.C . In this particular case, the fact that this conclusion is not the subject of the appeal is irrelevant since the Applicant could not have known in advance whether the Judge would agree to correct his judgment and it may well have had to include this objection in its motion for leave to appeal. [ 20 ] Since SEC refused to accept service through its Canadian attorneys and since the motions for special mode of service were only adjudicated on January 24, 2022, it was impossible for the Applicant to have legally served SEC with its motions for leave to appeal within the thirty day time limit.

The Court is satisfied that it was impossible for the Applicant to have acted sooner and, consequently, this component of the test for authorization to appeal outside the delays (Article 363 C.P.C. ) is satisfied. [ 21 ] Since the two motions for leave to appeal were brought within six months of the judgments at issue, the only question left to decide in regards to the question of authorization to appeal outside the delays is whether or not the appeals have a reasonable chance of success. This criterion will be addressed below.

The motions for leave to appeal [ 22 ] All three judgments were rendered in the course of proceedings and may be appealed with leave in accordance with the second paragraph of

Article 31 C.C.P . [1] Leave will therefore be granted when it is demonstrated that the judgment in appeal determines “part of the dispute or causes irremediable injury to a party, including if it allows an objection to evidence.” In addition, the party seeking leave must demonstrate that the appeal is consistent with the principles of proportionality and of the proper administration of justice. [2] [ 23 ] While it is possible that the information the Applicant seeks to obtain can be made available at trial, the nature and the volume of the information requested make such communication impractical.

For all intents and purposes, the Judgments maintain objections and possibly deprive the Applicant of relevant evidence in regards to the seriousness of the alleged defects, the difficulties encountered by the members of the group and the possible inadequacy of the recall.

The Court is thus satisfied that the Judgments cause irreparable injury to the Applicant. [ 24 ] It should be added in regards to the Second Judgment that since the Judge’s refusal to allow for a continuation of the examination of a SECA representative is based on the First Judgment, granting leave to appeal is consistent with the principles of proportionality having regard to the proper and efficient administration of justice. [ 25 ] Furthermore, the proper and efficient administration of justice also dictates that the question of the Applicant’s right to the requested information be dealt with as soon as possible to avoid future delays at a stage when the case is closer to being heard on the merits. [3] [ 26 ] The criteria set out in

article 31 C.C.P . are thus met. [ 27 ] As far as the chances of success are concerned, the Applicant raises a number of arguments, including: ➢ The Judge bases much of his reasoning on the Court’s decision in Fillion c. Québec (Procureur general) , 2015 QCCA 352 , which is clearly distinguishable from the questions at issue here, notably because (

i) the group in that case was composed of the victims of sexual assault; and (ii) it was the defendant who sought to identity of the members of the group and not the plaintiff ; ➢ Certain of the records requested are actually referred to in the Respondents’ defense and it will thus be deprived of the opportunity to test the veracity of those allegations; ➢ Certain of the records requested are relevant to establishing the technical problems experienced by the members of the group both before and after the recall; and ➢ A document request is not disproportionate simply because it involves a large amount of documentation. [ 28 ] The Court is satisfied that the appeals have at least a reasonable chance of success. [4] FOR THESE REASONS, THE COURT : [ 29 ] GRANTS the Applicant’s November 11, 2021 Motion for authorization to appeal outside the delays in file 500-09-029740- 214; [ 30 ] GRANTS the Applicant’s October 20, 2021, Motion for leave to appeal a judgment rendered in the course of proceedings in file 500-09-029740-214; [ 31 ] GRANTS leave to appeal the judgment rendered by the Superior Court on September 13, 2021 and corrected on October 7, 2021, by the Honourable Gregory Moore, J.S.C.; [ 32 ] GRANTS the Applicant’s February 7, 2022 Motion for authorization to appeal outside the delays in file 500-09-029791-217; [ 33 ] GRANTS the Applicant’s November 24, 2021, Motion for leave to appeal a judgment rendered in the course of proceedings in file 500-09-029791-217;

[ 34 ] GRANTS leave to appeal the judgment rendered by the Superior Court on October 28, 2021, by the Honourable Gregory Moore, J.S.C.; [ 35 ] GRANTS the Applicant’s March 14, 2022, Motion for leave to appeal a judgment rendered in the course of proceedings in file 500-09-029964-228; [ 36 ] GRANTS leave to appeal the judgment rendered by the Superior Court on March 2, 2022, by the Honourable Gregory Moore, J.S.C.; [ 37 ] REFERS the matter to the Master of the Rolls for the purposes of setting a date for a single hearing of two hours; [ 38 ] ORDERS the Applicant, after having notified a copy upon the Respondents, to file in the Office of the Court, no later than May 5, 2022, five copies of a single written argument not exceeding 20 pages.

All documents necessary for the adjudication of the appeals (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 39 ] ORDERS the Respondents, after having notified a copy upon the Applicant, to file in the Office of the Court, no later than June 30, 2022, five copies of a single written argument not exceeding 20 pages and of their supplementary documents; [ 40 ] DIRECTS the parties’ attention to

article 376 C.C.P . and

section 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. [ 41 ] REMINDS the parties about Practice Direction G-3 (latest revision: April 20, 2021) which strongly encourages them to attach a technological version of their brief or memorandum and their book of authorities to each hard copy of those documents.

The technological version must be saved on a USB key and must be in PDF format that allows keyword searches and includes hyperlinks from the table of contents to the brief, memorandum or book of authorities and, where applicable, from the argument to the schedules. If the Word version of their argument is available, parties are also invited to put that version on the USB key. [ 42 ] THE WHOLE, legal costs to follow. GENEVIÈVE COTNAM, J.C.A. MICHEL BEAUPRÉ, J.C.A. PETER KALICHMAN, J.C.A.