2012 QCCA 810, 2012 QCCA 810

JTI-MacDonald Corp. c. Létourneau 2012 QCCA 810 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL MINUTES OF THE HEARING DATE: May 3, 2012 THE HONOURABLE ALLAN R. HILTON, J.A. N o : 500-09-022585-129 (500-06-000070-983 and 500-06-000076-980) PETITIONER ATTORNEYS JTI-MACDONALD CORP. Mtre Guy Pratte (ABSENT) Mtre François Grondin (ABSENT) BORDEN LADNER GERVAIS RESPONDENTS ATTORNEYS CÉCILIA LÉTOURNEAU JEAN-YVES BLAIS CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ Mtre Marc Beauchemin (ABSENT) DE GRANDPRÉ CHAIT Mtre André Lespérance (ABSENT) LAUZON BÉLANGER LESPÉRANCE INC MIS EN CAUSE ATTORNEY

IMPERIAL TOBACCO CANADA LTD ROTHMANS, BENSON & HEDGES LTD PROCUREUR GÉNÉRAL DU CANADA Me George R. Hendy (ABSENT) OSLER HOSKIN HARCOURT MOTION FOR LEAVE TO APPEAL FROM AN INTERLOCUTORY JUDGMENT RENDERED ON MARCH 14 AND 20, 2012 BY THE HONOURABLE BRIAN RIORDAN OF THE SUPERIOR COURT DISTRICT OF MONTREAL N o : 500-09-022582-126 (500-06-000070-983 and 500-06-000076-980 ) PETITIONER ATTORNEY IMPERIAL TOBACCO CANADA LTD Mtre George R.

Hendy (ABSENT) OSLER HOSKIN HARCOURT RESPONDENTS ATTORNEYS CÉCILIA LÉTOURNEAU JEAN-YVES BLAIS CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ Mtre Marc Beauchemin (ABSENT) DE GRANDPRÉ CHAIT Mtre André Lespérance (ABSENT) LAUZON BÉLANGER LESPÉRANCE INC. MIS EN CAUSE ATTORNEYS JTI-MACDONALD CORP. ROTHMANS, BENSON & HEDGES LTD PROCUREUR GÉNÉRAL DU CANADA Mtre Guy Pratte (ABSENT) Mtre François Grondin (ABSENT) BORDEN LADNER GERVAIS MOTION FOR LEAVE TO APPEAL FROM AN INTERLOCUTORY JUDGMENT RENDERED ON MARCH 14, 2012 BY THE HONOURABLE BRIAN RIORDAN OF THE SUPERIOR COURT DISTRICT OF MONTREAL

Clerk: Annick Nguyen Court Room: —— HEARING Continuation of April 27, 2012, hearing. Judgment – Voir page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] The applicants seeks leave to appeal judgments of the trial judge (the Honourable Mr. Justice Brian Riordan) dismissing objections to questions relating to whether or not the applicant Imperial Tobacco had been involved in smuggling of tobacco products.

The essential basis of the objections was the irrelevance of the answers to the questions in light of the absence of any allusion to smuggling in the eight questions Jasmin, J. authorized on February 21, 2005 for consideration in these class actions.

The expressed reason given by the trial judge to dismiss the objections was that the respondents were claiming punitive damages. [ 2 ] Insofar as my jurisdiction to entertain the motions for leave to appeal is concerned, the applicants correctly acknowledge that a judgment rendered during a trial that dismisses an objection is not subject to immediate appeal (article 29 C.C.P .).

They contend, however, that the very right of the trial judge to entertain the question of smuggling of tobacco products is what is really in issue in light of the absence of allegations to that effect, since punitive damages can only be awarded for a fault that has been alleged in the proceedings and proved. They further point out that

article 1016 C.C.P. would require judicial authorization to amend the existing claims, which has neither been sought nor obtained. [ 3 ] At the hearing before me, counsel for the respondents offered a theory as to the relevance of the questions that does not appear in the transcript of the proceedings in the Superior Court. According to counsel for one of the applicants, this theory was being stated for the first time in any judicial forum.

The theory is that smuggled tobacco products crossed the border in packages that did not bear the statutory health warnings, with the result that consumers who purchased such products would be unaware of the dangers associated with smoking, thus potentially increasing consumption of the products. [ 4 ] In my opinion, there is an arguable case that the issue the applicants present for consideration is one that falls within the recognized exception of a judgment going to the heart of a trial judge's jurisdiction in the context of class action proceedings.

On the other hand, if I were to grant leave, the panel of the Court hearing the appeal would not be bound by my determination of this Court's jurisdiction, and it would be free to quash any such judgment I might render rather than addressing the merits of the proposed appeal. [ 5 ] In such circumstances, I believe I should follow the approach adopted by Kasirer, J.A. in Canada (Attorney General) v. Imperial Tobacco Ltd . [1]

[ 6 ] I therefore defer the motions for leave to appeal the interlocutory judgments of the Superior Court dismissing objections to the admissibility of evidence to a panel of the Court, and leave to the members of that panel the decision whether and to what extent they should adjudicate the merits of the proposed appeal. [ 7 ] Since I have not granted leave but deferred the motion, the proceedings in the Superior Court continue without my having to consider whether they should be suspended. [ 8 ] Given rules 48 and 49 of the Rules of the Court of Appeal in Civil Matters , which reads as follows: 48. Abandonment.

Where the appellant’s arguments and documents standing in lieu of the factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandis . 49. Foreclosure. Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedure apply, mutatis mutandis.

THEREFORE, THE UNDERSIGNED: [ 9 ] DEFERS the motions for leave to appeal to the Court; [ 10 ] PLACES the two cases on the role of September 28, 2012, at 9:30 am, in court room Pierre-Basile-Mignault, for a total of 90 minutes hearing for both appeals; [ 11 ] ORDERS the petitioners, after having served a copy upon the respondents, to file in the office of the Court, no later than June 22, 2012 , four copies of a written argument not exceeding 20 pages , of the exhibits that would normally have made up schedules I, II and III of their factum and of /their authorities; [ 12 ] ORDERS the respondents, after having served a copy upon the petitioners, to file in the office of the Court, no later than August 10, 2012 , four copies of a written argument in each case not exceeding 20 pages , of their supplementary documents and of their authorities; [ 13 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12-point type, with no more than 12 characters per 2.5 cm; [ 14 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 15 ] THE WHOLE with costs to follow.

ALLAN R. HILTON, J.A.