2021 QCCA 503, 2021 QCCA 503

St-Louis c. La Presse ltée 2021 QCCA 503 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029301-215 ( 500-17-111928-209 ) MINUTES OF HEARING DATE: March 19, 2021 THE HONOURABLE GUY COURNOYER, J.A.

APPLICANT COUNSEL Nadine St-Louis Mtre Arielle Corobow M tre Julius Grey ( Grey Casgrain ) By videoconference RESPONDENTS COUNSEL la presse ltée isabelle hachey Mtre Christian Leblanc M tre patricia hénault ( Fasken Martineau Dumoulin ) By videoconference DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on December 18, 2020 by the Honourable Benoît Emery of the Superior Court , District of Montreal (Art. 31 and 32 C.P.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 12:29 Commencement of the hearing. Identification of counsel.

Preliminary comments.

Submissions by Mtre Grey. 12:31 Submissions by Mtre Leblanc. 12:41 Reply by Mtre Grey. 12:42 Recess of the hearing. 12:46 Resumption of the hearing. BY THE JUDGE: Judgment – see page 3. 12:49 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The petitioner seeks leave to appeal from a judgment rendered on December 18, 2020, by the Superior Court, District of Montreal (the Honourable Benoît Emery) during a case management conference. [ 2 ] The petitioner is seeking damages stemming from the publication of a newspaper

article raising questions about the petitioner aboriginal ancestry. [ 3 ] The judgment, recorded in the minutes of the hearing, ordered that expert reports be produced by a joint expert. [ 4 ] The petitioner submits that the judgment was rendered without hearing the parties, considering the utility of a joint expert and the possibility of finding one. [ 5 ] Furthermore, the judge did not consider the « steps already taken » (s. 158 C.C.P. ) by the petitioner to secure two experts, one anthropologist and one psychiatrist. [ 6 ] The respondent asserts that the judge was obviously concerned about proportionality given the costs entailed by the expert reports to be prepared in view of the amount of damages sought. [ 7 ] The fact that the judge responded to their “Avis de gestion” which was seeking to bar the presentation of any expert evidence by ordering joint expert evidence only reflects the judge concerns.

The choice of remedy was to the judge to make. [ 8 ] I am of the view that this case has many striking similarities to the situation presented to my colleague Marcotte J.A. in Espar inc. c. Transport TFI 6 [1] where she stated: [5] Que ce soit sous l’

article 31 ou 32 C.p.c. , j’estime qu’il y a lieu de permettre l’appel.

Le jugement est peu motivé et ne traite pas des motifs de contestation des requérantes soulevés dans leur protocole d’instance à l’égard de la nomination d’un expert commun, non plus que du fait qu’elles ont déjà retenu les services de leur propre expert. [6] Or, l’absence de tels motifs m’amène à conclure que la mesure de gestion paraît déraisonnable eu égard aux principes directeurs de la procédure, alors que le paragraphe 158 (2) C.p.c. permet au juge de nommer un expert commun « si le respect de la proportionnalité l’impose et que cette mesure, tenant compte des démarches déjà faites, permet de résoudre efficacement le litige sans pour autant mettre en péril le droit des parties à faire valoir leurs prétentions ». [ 9 ] While it is well understood that the minutes of a case management hearing will rarely provide detailed reasons, the judge’s

summary reasons make it difficult to understand how he applied the principles established by our Court in Webasto c. Transport TFI 6 [2] and whether he considered the steps already taken by the petitioner to secure expert evidence. [ 10 ] I therefore adopt the reasoning of my colleague Marcotte J.A. and concludes that leave to appeal should be granted. [ 11 ] Considering that there should be case management and that the appeal should proceed by memoranda pursuant to

section 37 of the Civil Practice Regulation, which reads as follows: 37. Leave to Appeal for a Judgment in the Course of a Proceeding (Art. 31) . A judge who grants leave to appeal from a judgment rendered in the course of proceedings shall establish the date and duration of hearing and establish a timetable for the filing of memoranda unless, for such purpose, the judge refers the matter to the Clerk ( Art. 368 & 374 ).

THEREFORE, THE UNDERSIGNED: [ 12 ] GRANTS the application for leave to appeal; [ 13 ] GRANTS leave to appeal; [ 14 ] ORDERS the suspension of proceedings in first instance; [ 15 ] DEFER the application to the master of the rolls for a hearing of 60 minutes in duration; [ 16 ] ORDERS the petitioner, after having notified a copy upon the respondents, to file in the Office of the Court, no later than April 23, 2021 , five copies of a written argument not exceeding 15 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 17 ] ORDERS the respondents, after having notified a copy upon the applicant, to file in the Office of the Court, no later than May 28, 2021 , five copies of a written argument not exceeding 15 pages and of his supplementary documents; [ 18 ] 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. [ 19 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities. Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches. The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted; [ 20 ] THE WHOLE , legal costs to follow. GUY COURNOYER, J.A.