2022 QCCA 66, 2022 QCCA 66

Kawasaki Kisen Kaisha Ltd. c. Option Consommateurs 2022 QCCA 66 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029861-226 ( 500-06-000657-136 ) MINUTES OF HEARING DATE: January 19, 2022 THE HONOURABLE MARK SCHRAGER, J.A. APPLICANTS COUNSEL kawasaki kisen kaisha ltd k line america inc. Mtre Eric Vallières Mtre Yassin Élise Gagnon-Djalo Mtre NEIL CAMPBELL ( Mcmillan ) By videoconference Nippon Yusen Kabushiki Kaisha NYK LINE (NORTH AMERICA) inc. NYk line (canada) inc.

Mtre Guillaume Boudreau-Simard Mtre Jean-françois forget ( Stikeman Elliott ) By videoconference Eukor car carriers inc. wilh. wilhelmsen asa wilh. wilhelmsen holding asa wallenius wilhelmsen logistics americas llc wallenius wilhelmsen logistics as wallenius lines ab Mtre Mélanie Martel ( DLA Piper (Canada) ) By videoconference RESPONDENTS COUNSEL

option consommateurs Jean-Claude Charlet Mtre Josée Cavalancia Mtre Rosalie Jetté ( Belleau Lapointe ) By videoconference IMPLEADED PARTIES COUNSEL Höegh autoliners as Höegh autoliners inc. Mtre Jessica Harding Mtre Celine Legendre ( Osler, Hoskin & Harcourt ) By videoconference Mitsui O.S.K. line ltd Mitsui O.S.K. Bulk shipping (U.s.a.) Nissan motor car carriers co. ltd Wolrd logistics service (usa) inc.

Mtre Simon jun seida ( Blake, Cassels & Graydon ) By videoconference DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on November 30, 2021 by the Honourable Donald Bisson of the Superior Court , District of Montreal . Clerk at the hearing : René Gutknecht Courtroom: RC-18 HEARING 9:53 Commencement of the hearing.

Identification of counsel. 9:55 Submissions by Mtre Vallières. 10:16 Submissions by Mtre Cavalancia. 10:27 Reply by Mtre Vallières. 10:30 Reply by Mtre Martel. 10:33 Reply by Mtre Boudreau-Simard. 10:35 BY THE JUDGE: Judgment – see page 4. 10:36 Conclusion of the hearing. René Gutknecht, Clerk at the hearing

JUDGMENT [ 1 ] The petitioning parties seek leave to appeal the judgment rendered on November 30, 2021 by the Superior Court, District of Montreal (the Honourable Judge Donald Bisson), (notice of judgment December 7, 2021), which dismissed a verbal request to apply the “Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions and the Provision of Class Action Notice” (hereinafter the “Protocol”).

In effect, the judgment refuses a request to conduct a case management hearing jointly with judges in British Columbia and Ontario regarding the possibility of a stay of the class proceeding pending before the Superior Court. [ 2 ] The Quebec Superior Court has authorized a class action against the petitioning parties herein for all residents of Quebec who purchased petitioner’s transport services or who purchased property (car, agricultural machinery or construction equipment) transported by petitioners. [ 3 ] The Supreme Court of British Columbia has certified a similar class action but the class is limited to residents of British Columbia.

Also, there is pending before the Ontario Superior Court certification proceedings for a national group which would exclude British Columbia and Quebec residents. [ 4 ] Petitioners have moved for a stay of the Quebec class action. They wish to add Quebec residents to the British Columbia action.

In such regard, petitioners requested that Justice Bisson apply the Protocol and contact the Ontario and British Columbia judges with a view to holding a case management conference to discuss whether a joint hearing should be held on the foregoing proposal of petitioners. [ 5 ] The judge dismissed the request observing that the application of the Protocol is discretionary as provided in Rule 62 of the Règlement de la Cour supérieure du Québec en matière civile.

He held that the Protocol does not apply in this case because there is no overlap in the class description so that the pending class actions do not meet the definition of “action” contained in the Protocol. Accordingly, he concluded that any application of the Protocol at this time is premature. [ 6 ] Secondly, he found that each of the three courts involved would have to adjudicate on the basis of their own provincial laws and jurisprudence. As such, the judge noted that there is really no common question for discussion.

He underlined that any discussions between the judges could not address the merits of the decisions to be taken by each of them, independently. The judge concluded that there is no real risk of contradictory judgments given the different laws applicable in each province, but in the event of any potential conflict foreseen in the result, a Quebec judge has jurisdiction to stay the class proceeding before him pursuant to

Article 577 C.C.P. [ 7 ] Petitioners contend that the judgment is “unreasonable in light of the guiding principles of procedure” so that leave to appeal should be granted pursuant to

Article 32 C.C.P. More particularly, they allege that the judge failed to consider the need for interprovincial cooperation, proportionality and judicial economy required by the circumstances of this case. Petitioners emphasize the need to synchronize between the 3 judges underlining that the judges in British Columbia and Ontario wish to have the conversation. They underline that the absence of clearly defined guiding principles and the judge’s acknowledgment of the lack of appellate jurisprudence militate in favour of the granting of leave to appeal. [ 8 ] As petitioners recognize, as a case management decision,

Article 32 C.C.P. applies. Thus, as a general rule, there is no appeal of such a judgment except where it “appears unreasonable in light of the guiding principles of procedure”. Moreover,

Article 31 C.C.P. also applies since the judgment is interlocutory so that petitioners must, at this stage, and in these circumstances demonstrate some irreparable prejudice. [1] [ 9 ] The judge considered the appropriate procedural principles in virtue of Rule 62 and the Protocol. The exercise of his discretion in such regard does not appear to be unreasonable regarding principles of procedure. Another judge may have decided otherwise, but that is neither a reason to grant leave to appeal nor for the Court to intervene. Deference is due to the case management judge [2] . Accordingly, the criterion of

Article 31 C.C.P. is not satisfied. [ 10 ] Moreover, if there is a prejudice within the meaning of

Article 31 C.C.P. , it is not irreparable as the judge only decided that the application of the Protocol was at this time, premature. Also, the judge presiding over a class action can always stay the proceeding where other parallel proceedings are pending in other provinces under the inherent jurisdiction recognized by

Article 577 C.C.P. and as alluded to by the judge. [ 11 ] While the undersigned can appreciate, as the judge pointed out, that appellate guidance on the issues might be helpful, this is not the appropriate case for that assistance. FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 12 ] DISMISSES the Application for leave to appeal, with legal costs. MARK SCHRAGER, J.A.