2023 QCCA 476, 2023 QCCA 476

Unofficial English Translation of the Judgment of the Court MacDuff c. Vacances Sunwing inc. 2023 QCCA 476 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030474-233 ( 500-06-000845-178 ) MINUTES OF THE HEARING DATE: April 6, 2023 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. APPLICANT COUNSEL Daniel Macduff Mtre Sébastien A. Paquette ( Services juridiques SP ) By videoconference M tre Jérémie John Martin ( Champlain avocats ) RESPONDENTS COUNSEL Sunwing Vacations Inc. Sunwing Airlines Inc.

Mtre Jessica Harding Mtre Quentin Montpetit ( Osler, Hoskin & Harcourt ) By videoconference Class Action Assistance Fund Mtre Nathalie Guilbert ( Class Action Assistance Fund ) By videoconference Zurich insurance company ltd. Mtre Raphaëlle Dusseault ( Clyde & Co Canada ) DESCRIPTION: Application for leave to appeal from a judgment rendered by the Honourable Lukasz Granosik of the Superior Court, District of Montreal, on February 7, 2023, corrected on March 2, 2023 (Articles 30, 31, 357, and 602 C.C.P.).

Clerk at the hearing: Mélanie Camiré Courtroom: RC-18 HEARING 9:34 a.m. Identification of case and counsel. Preliminary remarks. 9:36 a.m. Arguments by Mtre Paquette. Amended application for leave to appeal filed, with addition of a conclusion on the execution of the trial judgment during the appeal. 9:45 a.m. Comments by Mtre Harding. 9:47 a.m. Comments by Mtre Guilbert on staying the appeal file. 9:50 a.m. Exchanges between the parties on the length of the appeal stay. 9:51 a.m. Recess. 10:16 a.m. Resumption of the hearing. BY THE JUDGE: Judgment – see page 4. 10:21 a.m.

Comments by Mtre Guilbert on the execution of the judgment notwithstanding appeal. 10:23 a.m. End of hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] I must decide an application for leave to appeal from a judgment rendered on February 7, 2023, corrected on March 2, 2023, by the Superior Court, District of Montreal, approving a class action settlement agreement.

Rather than approve the immediate payment of $1,500,000 for all class counsel fees set out in the settlement agreement, the judge approved the immediate payment of $751,450 and ordered that the balance of the fees up to the agreed amount of $1,500,000 be contingent on reaching a participation rate of 50% of class members, that is, 634,217 claims (reduced to 469,398 claims in the corrected judgment of March 2, 2023). [ 2 ] Relying on BGA inc. c. Banque de Montréal , [1] the applicant submits that he is entitled to appeal as of right.

He nonetheless seeks leave to appeal, out of caution. [ 3 ] In my view, and with respect, the judgment in question is a judgment rendered in matters of execution that is subject to prior leave under subparagraph 8 of the second paragraph and the third paragraph of

article 30 C.C.P . In this respect, I adopt the reasoning of my colleague Schrager J.A. in Vidéotron c. Girard [2] as adopted by my colleague Lavallée J.A. in Neuman c. Groupe Volkswagen du Canada inc . in the following excerpt: [3] [ translation ] [10] First, the issue is whether the appeal can proceed as of right or with leave. [11] Since the judgment was rendered under execution, i.e., “a judgment approving the transaction [and] determining … the mechanics of its execution” within the meaning of

article 590 C.C.P . , and is not “[a] judgment on a class action” within the meaning of the first paragraph of

article 602 C.C.P . , leave is required under subparagraph 8 of the second paragraph of

article 30 C.C.P . [12] In other words, the judgment rules on an agreement within the meaning of

article 590 C.C.P . but does not decide the merits of the class action within the meaning of the first paragraph of

article 602 C.C.P . and requires leave to be appealed. That is what the respondent Volkswagen Group pleads, citing the judgment in Vidéotron ltée c. Girard , where my colleague Shrager J.A. wrote:

[ translation ] [1] I have before me an application for leave to appeal a judgment rendered on June 19, 2019, by the Superior Court, District of Montreal (the Honourable Carole Hallée), approving the fees of the attorneys who represented the respondent in a successful class action against the applicant. … [4] In view of the appeal, under the agreement the attorneys were entitled to 35% of the amount of the judgment terminating the proceeding, but they waived 5% and are claiming only 30%. [5] Leave is required because the judgment ruled on an execution matter (subparagraph 8 of

article 30 C.C.P . ). [13] Thus, like a judgment homologating a transaction under

article 2633 C.C.Q . , which is a judgment ruling on an execution matter that may be appealed only with leave, a judgment approving an agreement terminating a class action may be appealed only with leave. [14] Since leave to appeal was subject to subparagraph 8 of the second paragraph of

article 30 C.C.P . , the applicable criteria are those of the third paragraph of

article 30 C.C.P . [References omitted] [ 4 ] To succeed, the applicant must therefore prove that the appeal raises a question of principle that warrants the Court’s attention and exceeds the interest of the parties alone. [ 5 ] The applicant submits that the trial judge exceeded his jurisdiction under

article 593 C.C.P . by subordinating full payment of the fees to a rate of participation or claims by class members, after having acknowledged that the fees agreed to in the settlement agreement were reasonable. He therefore introduced a new concept by delaying payment of the attorneys’ fees until the claims have been paid, based on their number, when these claims are outside the attorneys’ control. He also subordinated recovery of the fees to a [ translation ] “success rate” that depends on the participation of class members in proportions that largely exceed the usual success rate for this type of claim.

Last, the judge made this decision without giving the attorneys the opportunity to make submissions both on the appropriateness of subjecting payment to this condition and the reasonableness of the 50% success rate. [ 6 ] I find that the appeal raises questions of principle that warrant the Court’s attention and exceed the interests of the parties alone.

In my opinion, leave to appeal should therefore be granted. [ 7 ] At the hearing, the applicant filed an amended application for leave to appeal that added a conclusion to allow the immediate execution of the judgment rendered by the Superior Court notwithstanding appeal, except for the conclusion in paragraph 55 of the judgment under appeal. This conclusion is not contested by the respondents or the impleaded party.

I find that it should be granted. [ 8 ] Moreover, given the application for revocation of the Superior Court judgment, which has not yet been decided, the applicant asks that the appeal proceedings be stayed until that application has been determined. That request is also uncontested, and I find that it too should be granted.

FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] GRANTS the amended application for leave to appeal; [ 10 ] GRANTS leave to appeal the judgment rendered on February 7, 2023, corrected on March 2, 2023, by the Superior Court, District of Montreal, in file 500-06-000845-178; [ 11 ] STAYS the appeal and the applicable appeal time limits, including the time limits to file briefs, until an order lifting the stay is issued by this Court following the Superior Court’s forthcoming judgment on the application for revocation of the judgment rendered on February 7, 2023, corrected on March 2, 2023, in file 500-06-000845-178 ; [ 12 ] ACKNOWLEDGES the applicant’s undertaking to file an appeal case management notice once the time limit to appeal the forthcoming Superior Court judgment on the application for revocation of judgment in file 500-06-000845-178 has expired, in order to determine the procedural steps needed to ready the case for appeal; [ 13 ] ORDERS the execution notwithstanding appeal of the judgment rendered by the Superior Court, District of Montreal, on February 7, 2023, corrected on March 2, 2023, in file 500-06-000845-178, except for the conclusion in paragraph 55 of the judgment under appeal; [ 14 ] THE WHOLE , legal costs to follow depending on the outcome of the appeal.

GENEVIÈVE MARCOTTE, J.A.