2021 QCCA 1924, 2021 QCCA 1924

McKenzie c. Xytex Corporation (Xytex Cryo) International Outreach Health Services Inc. 2021 QCCA 1924 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-09-029776-218 ( 500-22-256546-196 ) PROCÈS-VERBAL D'AUDIENCE DATE : Le 17 décembre 2021 L’HONORABLE PETER KALICHMAN, J.C.A.

PARTIE REQUÉRANTE AVOCAT jewell mckenzie Me André Denis Par visioconférence PARTIES INTIMÉES AVOCATS xytex corporation , faisant affaire sous Xytex cryo international outreach health services inc. Me Marika Douville ( Robinson Sheppard Shapiro ) Par visioconférence seang lin tan, exerçant son métier de médecin originelle fertility clinic and women's health centre inc. Me Mattthew Meland M.

ZACHARY Zeigler , stagiaire ( Greenspoon Winikoff ) Par visioconférence DESCRIPTION : Requête pour permission d’appeler d’un jugement rendu le 8 octobre 2021 par l’honorable Sylvain Coutlée de la Cour du Québec , district de Montréal (Art. 30 al. 2 et 357 C.p.c. ) . Greffière-audiencière : Mélanie Camiré Salle : RC-18 AUDITION Continuation de l'audience du 16 décembre 2021. Les parties ont été dispensées d’être présentes à la Cour.

PAR LE JUGE : Jugement – voir page 3. Mélanie Camiré, Greffière-audiencière JUGEMENT [ 1 ] The Applicant seeks permission to appeal a judgment rendered by the Court of Quebec, district of Montreal (the Honorable Sylvain Coutlée), dismissing her Amended Originating Application on the basis that is abusive. * * * [ 2 ] In 2014, the Applicant met with the Respondent, Dr.

Tan, at the clinic of Respondent Originelle Fertility Clinic and Women’s Health Centre inc. (collectively the Clinic ) to begin the process of in vitro fertilization ( IVF ). [ 3 ] She alleges that in 2015, she ordered sperm through the intermediary of the Clinic, from a donor identified as 6711.

The sperm was provided by Respondent Outreach Health Services inc., the Canadian parent company of Respondent Xytex Corporation (collectively Outreach ). [ 4 ] The IVF process began and the Applicant became pregnant in May, 2015 only to suffer a miscarriage in June of that year. [ 5 ] Throughout 2016, she continued the IVF process using sperm from donor 6711 but failed to get pregnant. [ 6 ] In November 2016, the Applicant received a notice from Respondent Xytex Corporation, advising her of a previously undetected genetic problem associated with donor 6711.

While the Amended Originating Application is somewhat ambiguous in this respect, the Applicant claims that she ceased using the sperm from donor 6711 after she received the notice from Xytex. [1] [ 7 ] In 2019, the Applicant sued the Respondents on the basis of what she describes as a serious genetic defect in the donor sperm she purchased. She claimed $ 30,000 for her moral damages. [ 8 ] On January 18, 2021, the Honorable Magali Lewis, J.C.Q., dismissed the Applicant’s request to extend the delay in which to file an expert report.

In her judgment, Judge Lewis reviews the procedural history of the file and concludes that despite the opportunities she had been given, the Applicant had not undertaken any serious effort to find an expert. [ 9 ] The Applicant sought leave to appeal the decision of Judge Lewis but her motion was denied by the Honorable Christine Baudouin, J.C.A. [ 10 ] The Applicant then filed an Amended Originating Application in which she claimed an additional $ 46,925.02, representing the cost of the IVF services she received, including the cost of the sperm of donor 6711. [ 11 ] The Respondents brought applications to dismiss the Applicant’s Amended Originating Application on the grounds that it was abusive within the meaning of

Article 51 of the Code of civil Procedure ( CCP ). [ 12 ] The applications to dismiss were granted by Judge Coutlée. Quoting from the decision of Justice Baudouin dismissing the Motion for Leave to Appeal, Judge Coutlée determined that without an expert report, the Applicant’s recourse is clearly destined to fail because she will be unable to establish a causal link between the alleged fault and the damages claimed. * * * [ 13 ] A judgment dismissing a judicial application because of its abusive nature can only be appealed with the permission of the Court or one of its judges. [2] [ 14 ] According to

Article 30 al. 3 CCP , leave is granted if « the matter at issue is one that should be submitted to that Court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions ... lorsque celui-ci considère que la question en jeu en est une qui doit être soumise à la cour, notamment parce qu’il s’agit d’une question de principe, d’une question nouvelle ou d’une question de droit faisant l’objet d’une jurisprudence contradictoire.» [ 15 ] In most cases, the decision to grant leave will depend on whether there is an obvious weakness in the judgement dismissing the judicial application such that there is a risk of injustice. [3] [ 16 ] The Applicant submits that she meets the requirements for leave to be granted.

The grounds she raises may be summarized as

follows:

a) The Judge based his decision on the original version of the Originating Application dated July 7, 2019 and not the amended version of April, 2021. This, the Applicant argues, is apparent from paragraph 4 of the judgment which refers to a claim of $ 30,200 in damages and not the $ 77,125 which is the current amount claimed. As a result, she argues that the Judge failed to take account of her claim for reimbursement of the amounts paid to Respondents for which no expert evidence is required.

In this regard, it should be noted that the Respondents acknowledge that not all of the sperm the Applicant purchased had been used when she was advised in November of 2016 of the genetic problem associated with donor 6711;

b) The Judge erred in basing his analysis on previous judgments, namely those of Justices Lewis and Baudouin, that were rendered in an entirely different procedural context and did not examine the merits of her claim; and

c) The Judge erred in dismissing her claim despite the fact that she had inscribed for judgment by default against Northeastern Reproductive Medicine, a defendant which did not participate in the hearing of the applications to dismiss. [ 17 ] Without commenting on the chances of success of the appeal, l am satisfied that the Applicant meets the applicable criteria and that leave to appeal should be granted.

FOR THESE REASONS, THE UNDERSIGNED: [ 18 ] GRANTS the application for leave to appeal; [ 19 ] GRANTS leave to appeal; [ 20 ] FIXES the hearing for one hour (30 minutes for Appellant and 15 minutes for each of the Respondents) on June 3, 2022 in room Pierre-Basile Mignault at 9h30; [ 21 ] ORDERS the Appellant, after having notified a copy to the Respondents, to file in the Office of the Court, no later than February 18, 2022, five copies of a written argument not exceeding 10 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 22 ] ORDERS each of the Respondents, after having notified a copy to the Appellant, to file in the Office of the Court, no later than April 19, 2022, five copies of a written argument not exceeding 10 pages each and any supplementary documents; [ 23 ] DIRECTS the parties’ attention to

article 376 C.C.P. and

section 55 of the Civil Practice Regulation, which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 24 ] REMINDS the parties about Practice Direction G-3 (latest revision: April 20, 2021) which strongly encourages them to attach a technological version of their brief or memorandum and their book of authorities to each hard copy of those documents.

The technological version must be saved on a USB key and must be in PDF format that allows keyword searches and includes hyperlinks from the table of contents to the brief, memorandum or book of authorities and, where applicable, from the argument to the schedules. If the Word version of their argument is available, parties are also invited to put that version on the USB key. [ 25 ] THE WHOLE , legal costs to follow. PETER KALICHMAN, J.C.A.