2023 QCCA 1427, 2023 QCCA 1427

Promark Electronics Inc. c. Bombardier Recreational Products Inc. 2023 QCCA 1427 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030724-231 ( 500-17-124910-236 ) MINUTES OF HEARING DATE: November 10, 2023 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPLICANTS COUNSEL promark electronics inc. electrical components international inc. Mtre Henry Steinberg Mtre Jason S. Novak ( Spiegel Sohmer ) Absent RESPONDENT COUNSEL bombardier recreational products inc.

Mtre Eve-Lyne Morin M me Manar Choukair, stagiaire en droit ( Lavery, De Billy ) Absent DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on September 5, 2023 by the Honourable Tiziana Di Donato of the Superior Court , District of Montreal (Arts. 31 al. 2 and 357 C.C.P .) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING

Continuation of the hearing held on November 8, 2023. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 3. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The Applicants seek leave to appeal from the judgment rendered on September 5, 2023, by the Superior Court, District of Montreal (the honourable Tiziana Di Donato), which granted the Respondent’s declinatory exception and ordered the transfer of the court file from the District of Montreal to the District of Bedford. [ 2 ] The Respondent is a legal person and its domicile is in the District of Bedford.

The Applicants chose to sue the Respondent in the District of Montreal on the sole basis that the Respondent indicated on its corporate profile with the Registraire des entreprises that its “ domicile élu ” was at the offices of Stikeman Elliott in Montreal. [ 3 ] The debate in first instance was whether this election of domicile was sufficient to trigger the application of the third paragraph of

Article 41 C.C.P. : 41. The court having territorial jurisdiction in Québec to hear a judicial application is the court of the domicile of the defendant, or of one of the defendants if there are two or more defendants domiciled in different districts. 41. La juridiction territorialement compétente au Québec pour entendre les demandes en justice est celle du lieu où est domicilié le défendeur ou l’un ou l’autre d’entre eux s’il y en a plusieurs domiciliés dans différents districts.

If the defendant has no domicile in Québec, the court that has territorial jurisdiction is the court of the defendant’s residence or, in the case of a legal person, the court of the place where the defendant has an establishment, or the court of the place where the defendant has property. Si le défendeur n’a pas de domicile au Québec, la juridiction territorialement compétente est alors celle du lieu de sa résidence ou, s’agissant d’une personne morale, celle du lieu d’un de ses établissements ou encore celle du lieu où le défendeur a des biens.

So far as public order permits, the court of the defendant’s elected domicile , or the court designated by an agreement between the parties other than a contract adhesion, also has territorial jurisdiction.

Est aussi territorialement compétente, si l’ordre public le permet, la juridiction du lieu du domicile élu par le défendeur ou celle désignée par la convention des parties, à moins que cette convention ne soit un contrat d’adhésion. [Emphasis added] [Soulignements ajoutés] [ 4 ] The judge decided that it was not, and the Applicants seek leave to appeal from that decision. *** [ 5 ] The judgment was rendered in the course of the proceeding, with the result that the right of appeal is governed by

Article 31 C.C.P. [ 6 ] The Applicants must therefore satisfy me that (1) the judgment determines part of the dispute or causes them irremediable injury, (2) there is, at least in appearance, an error in the judgment which may justify the Court’s intervention, and (3) the proposed appeal is in the interest of justice and that it respects the principle of proportionality. [ 7 ] It is generally accepted that a judgment in the course of the proceeding that decides an issue relating to jurisdiction may cause irremediable injury to a party and therefore meets the first condition. [1] [ 8 ] As for the second and third conditions, the issue of whether the election of domicile under

Section 33 of the Act respecting the

legal publicity of enterprises is sufficient to trigger the application of the third paragraph of

Article 41 C.C.P. has never been decided by the Court. Moreover, there appear to be somewhat inconsistent judgments in the lower courts. [2] I am satisfied that it is a question of sufficient importance to merit consideration by the Court. [ 9 ] It is appropriate that the appeal proceed on an accelerated basis and that the proceeding be stayed pending the judgment of the Court. The parties are free to proceed with matters such as examinations out of court or the delivery of undertakings, if they agree to do so.

FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] GRANTS the application for leave to appeal; [ 11 ] GRANTS the Applicants leave to appeal from the judgment rendered by Justice Di Donato on September 5, 2023; [ 12 ] ORDERS the Appellants to file with the Court office, no later than November 23, 2023 , five copies of a memorandum comprising an argument not exceeding 10 pages and the three schedules set out in ss. 51 and 58 R.C.A.Q.Civ.M. , after having notified a copy thereof to the Respondent (ss. 55 para. 2 and 58 R.C.A.Q.Civ.M. ); [ 13 ] ORDERS the Respondent to file with the Court office, no later than December 21, 2023 , five copies of a memorandum comprising an argument not exceeding 10 pages and, if necessary, elements in addition to those in the Appellants’ schedules (ss. 47 and 58 R.C.A.Q.Civ.M. ), after having notified a copy thereof to the Appellants (ss. 55 para. 2 and 58 R.C.A.Q.Civ.M. ); [ 14 ] DEFERS the file to the Master of the Rolls to fix a hearing of a duration of 80 minutes , namely 40 minutes for the Appellants and 40 minutes for the Respondent; [ 15 ] ORDERS a stay of the proceedings in first instance; [ 16 ] REMINDS the parties of the rule set out in art. 376 C.C.P. : 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. [ 17 ] REMINDS the parties that, in accordance with s. 13 R.C.A.Q.Civ.M. , they must send to the Court office a technological version of the paper version of their memoranda.

The preparation and transmission of this technological version are governed by the Chief Justice's Directive entitled "Rules Respecting the Preparation of the PDF Version of Pleadings, Briefs, Memoranda, Books of Authorities or Any Other Document" and the Clerk's Practice Direction No. 7 entitled "Transmission of the PDF Version of Certain Pleadings, Briefs, Memoranda and Other Documents by Means of the Digital Office of the Court of Appeal (DOCA)"; [ 18 ] THE WHOLE , legal costs to follow. STEPHEN W. HAMILTON, J.A.