2023 QCCA 475, 2023 QCCA 475

7080735 Canada inc. c. City of Gatineau 2023 QCCA 475 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030467-237 ( 550-17-011274-196 ) (500-17-011884-200) MINUTES OF HEARING DATE: March 31, 2023 THE HONOURABLE FRÉDÉRIC BACHAND, J.A. 500-09-030467-237 (550-17-011274-196) APPLICANT COUNSEL 7080735 Canada inc. Mtre Jean-François Towner Mtre Léanne Nagy-Bureau ( Jeansonne avocats ) Absent RESPONDENT COUNSEL city of gatineau Mtre MATHIEU TURCOTTE ( DHC Avocats ) Absent IMPLEADED PARTIES COUNSEL Robert perrier holdings ltd Mtre OLIVIER TRUESDELL-MÉNARD ( Donati Maisonneuve ) Absent société de transport de l'outaouais Mtre SÉBASTIEN DIONNE ( RPGL ) Absent

Attorney general of Quebec - Ministère des transports Mtre NATHALIE FISET ( Bernard, Roy (Justice-Québec) ) Absent 500-09-030467-237 (550-17-011884-200) APPLICANT COUNSEL 7080735 Canada inc. Mtre Jean-François Towner Mtre Léanne Nagy-Bureau ( Jeansonne avocats ) Absent RESPONDENT COUNSEL city of gatineau Mtre MATHIEU TURCOTTE ( DHC Avocats ) Absent DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on February 22, 2023 by the Honourable Pierre Isabelle of the Superior Court , District of Gatineau (Art. 32 and 357 C.C.P. ).

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING Continuation of the hearing held on March 30, 2023. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 4. Mélanie Camiré, Clerk at the hearing

JUDGMENT [ 1 ] This is an application for leave to appeal from a judgment authorizing the respondent to conduct a pre-trial examination of a third party (article 221 para. 3 C.C.P. ), namely Mr. Wilhelm de Lorenzi, who holds the position of regional director of urban planning and development for a consulting firm who has worked closely with the applicant for more than 10 years. [ 2 ] The context is that of two consolidated lawsuits pursuant to which the applicant seeks from several defendants, including the respondent, damages totalling more than $100,000,000.

Both lawsuits relate to property located in the City of Gatineau that the applicant purchased with the intention of carrying out a real estate development project. In the first lawsuit, the claim is for lost profits resulting from the increase in wetlands caused by human interventions that disrupted the natural flow of water.

In the second lawsuit, the applicant is seeking compensation for de facto expropriation resulting from by-laws adopted by the respondent. [ 3 ] Because the impugned judgment constitutes a ruling on pre-trial discovery, [1] leave can only be granted if it “appears unreasonable in light of the guiding principles of procedure/ paraît déraisonnable au regard des principes directeurs de la procédure ”. It is well established that this threshold is a high one, as appeals from orders falling within the ambit of

article 32 C.C.P. are rare and exceptional. [2] [ 4 ] The applicant contends that this threshold is met for three main reasons: firstly, because the judge authorized Mr. de Lorenzi’s examination without a compelling demonstration of its usefulness and necessity; secondly, because the impugned judgment allows the respondent to conduct a fishing expedition in Mr. de Lorenzi’s affairs that is unlimited in either time or scope; lastly, because the judgment allows for a second examination on matters on which one of the applicant’s representatives will already have been examined. [ 5 ] I disagree. [ 6 ] The judge concluded that Mr. de Lorenzi had played a crucial role in the events at the origin of the dispute and that he would be a central witness should the matter reach trial.

The judge further concluded that, in all likelihood, the applicant’s CEO would not be able to adequately answer all questions regarding Mr. de Lorenzi’s role in those events.

Given those findings — which are entitled to deference in appeal —, and also given the stakes involved in this file as well as the public interest in facilitating the disclosure of evidence at the pre-trial stage, [3] authorizing the pre-trial examination of Mr. de Lorenzi does not appear to me to be unreasonable in light of the guiding principles of procedure. [ 7 ] Lastly, the applicant’s concerns regarding the duration and scope of the examination, as well as those relating to potential overlaps with the pre-trial examination of its CEO — which, I am told, is to take place next week —, are overblown.

Mr. de Lorenzi’s pre-trial examination will be subject to the 5-hour time-limit set out in

article 229 para. 2 C.C.P. [4] as well as the court’s power to terminate a pre-trial examination that it considers excessive or unnecessary. [5] Therefore, the fact that the judge chose not to set specific conditions [6] does not entail that his ruling gives the respondent free rein to examine Mr. de Lorenzi endlessly and without any regard for the guiding principles of procedure. [7] FOR THESE REASONS, THE UNDERSIGNED: [ 8 ] DISMISSES the application for leave to appeal, with legal costs. FRÉDÉRIC BACHAND, J.A.