2017 QCCA 151, 2017 QCCA 151

GMR CPA inc. c. Rouhani 2017 QCCA 151 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026479-162 (500-11-051115-166) MINUTES OF THE HEARING DATE: January 26, 2017 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL GMR CPA INC. MAXIME GIRARD-MURRAY Mtre Stanislas Bricka RESPONDENT COUNSEL YALDA ROUHANI Mtre Stephanie Rassam (Stein & Stein inc.) IMPLEADED PARTY CAISSE DESJARDINS DU MONT-SAINT-BRUNO DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on October 31, 2016 by Michel A. Pinsonnault of the Superior Court, District of Montreal Clerk: Adam Scott Courtroom: RC.18

HEARING 9:32 Commencement of the hearing. Roll call. Identification of counsel. Suspension of the hearing. 9:33 Resumption of the hearing. Representations by Mtre Bricka. 10:01 BY THE JUDGE: I acknowledge the petitioners’ undertaking that they do not oppose the preparation of a fair evaluation of the shares. Representations by Mtre Rassam. 10:15 Reply by Mtre Bricka. 10:21 Suspension of the hearing. 10:30 Resumption of the hearing. BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing. (

s) Adam Scott Clerk BY THE JUDGE JUDGMENT [ 1 ] The petitioners seek leave to appeal from a judgment rendered in the course of proceedings by the Superior Court, District of Montreal, (the Honourable Michel A. Pinsonnault), rendered on October 31, 2016, granting an interim order sought by Yalda Rouhani by which she sought to obtain access to financial information pertaining to GMR CPA inc. (GMR).

The order is sought in connection with an action in damages brought by the respondent against petitioner Girard-Murray for physical and psychological abuse and an oppression action brought against the petitioners under the Quebec Business Corporations Act (the Act). [ 2 ] Interpreting the Act as empowering him to render an interim order that is appropriate to the circumstances, and citing the relevance of the procedural principle of proportionality to sustain his conclusions, the judge ordered the petitioners to allow the respondent and her designated representative “unfettered access” to GMR’s corporate records and fixed certain modalities for consulting the documents at GMR’s place of business. *** [ 3 ] The petitioners argue that leave should be granted because the judge erred in law in rendering the order.

Specifically, they submit that (

i) the interim order fails to meet the requirements of an injunction in that it is imprecise; (ii) that the judge erred in law in rendering an interim order not authorized under the Act, noting in particular that he failed to treat the prerequisite of urgency; (iii) the judge erred in law by failing to consider whether an alternative measure to the interim order was available to provide the respondent with the relief she sought, in particular an examination on discovery of the petitioners; (iv) that the order does not meet the requirement of necessity in that an unlimited access to financial records was not required to evaluate the shares and that providing access to GMR’s premises was not necessary to the ultimate aim of the action; and (

v) that the judge wrongly attributed the status of director to the respondent, and that her status as shareholder did not give a right to access to certain corporate documents. ***

[ 4 ] The motion for leave is governed by

article 31 C.C.P. The petitioners must show that the judgment causes “irremediable prejudice” within the meaning of that provision and, if so, it is in the interests of justice and in keeping with the principle of proportionality that leave be granted. [ 5 ] Leave should be denied. [ 6 ] I am hard pressed to see irremediable prejudice on the proceedings (the instance ) caused by the judgment as that idea has been explained in the decided cases.

Providing the respondent with financial information, even if it is confidential, has no irremediable juridical impact on the proceedings, as opposed to an impact that is merely factual in nature: see the majority opinion in Elitis Pharma inc. v. RX Job inc ., [1] as applied by judges in chambers to the threshold for leave in

article 31 C.C.P. [2] Insofar as there may be confidential information amongst the records to which the respondent has gained access, there are other measures, identified in Elitis Pharma , that could be deployed to preclude the company from suffering harm. [3] [ 7 ] In any event, granting leave would not serve the interests of justice as an appeal would have no reasonable prospect of success.

The decision to grant an interim order of this nature is highly discretionary and the Court has consistently said that deference is owed to the motion judge in such matters. [4] The judge explained, in careful detail, the foundation in law and fact for the interim order. The scope of the order was indeed broad, but not overbroad so that it is not susceptible of enforcement. The judge explained adequately the factual basis for urgency as this factor is relevant in a corporate law setting, which distinguishes this case from 176283 Canada inc . v. St- Germain , [5] cited by the petitioners.

The factual context recounted by the judge offers a clear justification for this order rather than another means of obtaining the information. In sum, the arguments as to supposed errors of law or fact raised by the petitioners fail to point to an apparent weakness in the judgment. [ 8 ] Finally, a judge in chambers should not grant leave pursuant to

article 31 C.C.P. where the proposed appeal would not respect the principle of proportionality. There are plain signs that this dispute has escalated to the point that an appeal would cause the parties and the justice system to expend resources in an inefficient manner. The shareholder dispute here appears to mask what is an essentially a family law matter which could perhaps be resolved otherwise than by recourse to the courts. [6] FOR THE AFOREMENTIONED REASONS , the undersigned: [ 9 ] DISMISSED the motion for leave, with legal costs against the petitioners. NICHOLAS KASIRER, J.A.