2022 QCCA 1256, 2022 QCCA 1256

Fraser c. Canadian National Railway Company 2022 QCCA 1256 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030048-227 ( 500-11-060810-229 ) MINUTES OF HEARING DATE: September 15, 2022 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. STEPHEN W. HAMILTON, J.A. CHRISTINE BAUDOUIN, J.A. APPELLANT COUNSEL pamela FRASER Mr. ETIENNE GRATTON, articling student ( Juristes Power Law ) Mtre Giacomo Zucchi ( Juristes Power Law ) Absent RESPONDENT COUNSEL canadian national railway company Mtre Stéphanie Lapierre Mtre Nathalie Nouvet ( Stikeman Elliott ) Absent Mtre PIERRE BIENVENU (imk) Absent Mtre Dominic Dupoy ( Norton Rose Fulbright Canada ) By videoconference

On appeal from a judgment rendered on April 1, 2022 by the Honourable Marie-Anne Paquette of the Superior Court , District of Montreal . DESCRIPTION: Application to dismiss an appeal (Article 365 C.C.P. ). Application to amend a pleading (Articles 206 and 378 C.C.P. ). Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 10:48 Commencement of the hearing. Identification of counsel. Continuation of the hearing held on September 12, 2022. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 4. Conclusion of the hearing. Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] The Appellant made an application to the Superior Court under

Section 137 of the

Canada Business Corporations Act [1] for an order compelling the Respondent to include two shareholder proposals in its management proxy circular for the 2022 shareholders’ meeting. That application was dismissed by the Honourable Marie-Anne Paquette, as she then was, by judgment rendered on April 1, 2022. [2] The Appellant filed a notice of appeal on May 3, 2022.

Because the shareholders’ meeting was scheduled to take place on May 20, 2022, she asked in the conclusions of her Notice of Appeal that the Respondent be ordered to include the 2022 proposals in the 2023 management proxy circular rather than the 2022 circular. [ 2 ] The Respondent filed an Application to Dismiss an Appeal, arguing that the Appellant could not ask for relief with respect to the 2023 circular and that the appeal with respect to the 2022 circular was moot.

The Appellant then filed an Application to Amend a Pleading, whereby she sought to amend her application in first instance to ask for an order that the Respondent include the 2022 proposals in the 2023 management proxy circular. [ 3 ] Since the application to amend is intended to correct the problem at the heart of the application to dismiss the appeal, it is appropriate to examine it first. [ 4 ] Parties can amend their proceedings at any time, provided that doing so “does not delay the proceeding”, “is not contrary to the interests of justice” and “must not result in an entirely new application having no connection with the original one” (Article 206 C.C.P. ). [ 5 ] The proposed amendment will not delay the proceedings, is not contrary to the interests of justice and does not result in an entirely new application having no connection with the original one.

The issues are exactly the same, whether they are decided in relation to the 2022 circular or the 2023 circular. If the amendment is refused and the appeal is dismissed, the Appellant will probably institute a new application in the Superior Court in relation to the 2023 circular, will likely receive the same answer from the Superior Court and will be back before the Court at best in time to present an urgent appeal shortly in advance of the 2023 shareholders’ meeting. The amendment is in the interests of justice in that it will accelerate the proceedings and save judicial resources. The amendment is allowed.

[ 6 ] Once the amendment is allowed, the Respondent’s arguments on the irregularity of the appeal and its mootness fall. The Respondent argued at the hearing that the appeal had no reasonable chance of success, but that argument is not convincing. While we do not express any opinion on the chances of success of the appeal, the Appellant has identified a number of issues in the lower court judgment that could justify the intervention of the Court.

FOR THESE REASONS, THE COURT: [ 7 ] GRANTS the Appellant’s Application to Amend a Pleading in accordance with its conclusions; [ 8 ] DISMISSES the Respondent’s Application to Dismiss an Appeal; [ 9 ] THE WHOLE , without legal costs. YVES-MARIE MORISSETTE, J.A. STEPHEN W. HAMILTON, J.A. CHRISTINE BAUDOUIN, J.A.