2023 QCCA 495, 2023 QCCA 495

Samsung Electronics Canada Inc. c. Arial 2023 QCCA 495 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030262-224 , 500-09-030263-222 ( 500-06-001018-197 ) MINUTES OF HEARING DATE: April 13, 2023 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. 500-09-030262-224 APPELLANTS/INCIDENTAL RESPONDENTS COUNSEL samsung electronics canada inc. samsung electronics co. ltd.

Mtre KARINE CHÊNEVERT Mtre JUSTINE KOCHENBURGER ( Borden Ladner Gervais ) Absent RESPONDENTS/INCIDENTAL APPELLANTS COUNSEL tracy arial claire o'brien erika patton zoe patton alexander tasciyan mathew nucciarone vito decicco Mtre CHARLES O’BRIEN ( Lorax Litigation ) IMPLEADED PARTIES/INCIDENTAL RESPONDENTS COUNSEL Apple canada inc. apple inc. Mtre EMMANUELLE POUPART Mtre KEVIN LEE PINKOSKI Mtre CATHERINE MARTIN ( McCarthy Tétrault ) Absent 500-09-030263-222 APPELLANTS/INCIDENTAL RESPONDENTS COUNSEL

Apple canada inc. apple inc. Mtre EMMANUELLE POUPART Mtre KEVIN LEE PINKOSKI Mtre CATHERINE MARTIN ( McCarthy Tétrault ) Absent RESPONDENTS/INCIDENTAL APPELLANTS COUNSEL tracy arial claire o'brien erika patton zoe patton alexander tasciyan mathew nucciarone vito decicco Mtre CHARLES O’BRIEN ( Lorax Litigation ) IMPLEADED PARTIES/INCIDENTAL RESPONDENTS COUNSEL samsung electronics canada inc. samsung electronics co. ltd.

Mtre KARINE CHÊNEVERT Mtre JUSTINE KOCHENBURGER ( Borden Ladner Gervais ) Absent DESCRIPTION: 500-09-030262-224 Application by the Incidental Respondents Samsung Electronics Canada Inc. and Samsung Electronics Co.

Ltd. to Strike Documents and Allegations from the Notice of Incidental Appeal and the Memorandum of the Incidental Appellants and to Extend the Delay to File their Memorandum (Articles 84, 169, 370, 373 and 377 C.C.P . and sections 51, 53, 65 and 66 R.C.A.Q.Civ.M .). 500-09-030263-222 Application by the Incidental Respondents to Strike Documents and Allegations from the Notice of Incidental Appeal and the Memorandum of the Incidental Appellants and for Extension of the Time Limit to File the Memorandum of the Incidental Respondents (Articles 84, 169, 370, 373 and 377 C.C.P . and sections 51, 53, 65 and 66 R.C.A.Q.Civ.M .).

Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING 9:22 Commencement of the hearing. Continuation of the hearing held on April 5, 2023. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 5. Conclusion of the hearing. Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] The Incidental Respondents are asking me to strike allegations, exhibits and documents from the Notice of Incidental Appeal and the Incidental Appeal memorandum that are not a part of the record or that violate the rules of procedure.

The contested allegations and exhibits either relate to the addition of a new representative (Anik Demers) and subclass or to the addition of a reference to s. 239 of the Consumer Protection Act (“CPA”) , neither of which was previously alleged in the motion for authorization that was adjudicated and decided in the judgment under appeal. [ 2 ] The Incidental Appellants acknowledge that the allegations and exhibits pertaining to the new representative (Anik Demers) and subclass did not form part of the motion for authorization that led to the judgment under appeal.

They recognize that they did not obtain prior court authorization to amend their motion for authorization. They explain that they recently presented in Superior Court a Re-re-re Amended Motion for Authorization to Institute a Collective Action and to Obtain the Status of Representative Plaintiff , which Justice Christian Immer declined to hear in view of the appeal of his authorization judgment, on the basis that he was functus officio . [ 3 ] The Incidental Appellants claim that they should be entitled to amend their motion for authorization before this Court for the sake of efficiency.

However, they have not filed such a motion and I am not tasked with its adjudication.

In any event, I would not have granted such a motion, had it been properly submitted, given the nature of the amendments sought, which amendments are likely to give rise to a debate and to new grounds of defence as well as to new evidence. [1] I also note that the Incidental Appellants have not sought permission from this Court to file indispensable new evidence. [ 4 ] As a result, the Incidental Appellants will be ordered to remove the unauthorized allegations and exhibits as well as any reference to s. 239 of the CPA , which were not alleged in the motion for authorization that led to the judgment under appeal. [ 5 ] Insofar as the Incidental Appellants’ plan of argument before the Superior Court at the authorization stage is concerned, it does not qualify as “pleadings before the court of first instance that are relevant to the appeal”.

Consequently, the plan cannot be filed under

Schedule II of the Incidental Appeal memorandum pursuant to s. 51 of the Regulation of the Court of Appeal of Quebec in Civil Matters . [ 6 ] The Incidental Appellants argue that they should nonetheless be entitled to rely on their plan of argument to demonstrate that they raised s. 239 of the CPA before the Superior Court. [2] However, since they have recognized their failure to allege this

section in their motion for authorization, I fail to see how the plan of argument could remedy the absence of a proper allegation in their pleadings. Allowing the plan of argument to remain in the memorandum for that sole purpose would create an injustice or imbalance towards the other parties by enabling the Incidental Appellants to add to the 30-page argument they were authorized to submit. Consequently, it must be removed from the memorandum. FOR THESE REASONS, THE UNDERSIGNED: [ 7 ] GRANTS the applications;

[ 8 ] ORDERS the striking of all new allegations and new exhibits in the Notice of Incidental Appeal and Incidental Appeal memorandum that were not pleaded on first instance, namely: i. The allegations concerning the addition of a new representative plaintiff and subclass, namely:

a) In the Notice of Incidental Appeal: the mention of subheading F in paragraph 2, and the entire subsection F (paragraphs 16 and following);

b) In the Incidental Appeal memorandum: paragraphs 3, 5, 6, 12, the entire subsection 6 (paragraphs 49 and following), Conclusion (a), and the relevant conclusions; ii. The allegations concerning s. 239 of the Consumer Protection Act, namely:

a) In the Notice of Incidental Appeal: the mention of subheading D in paragraph 2, and the entire subsection D (paragraph 14);

b) In the Incidental Appeal memorandum: paragraphs 10 (in part), 26 (in part), 31 (in part), 36 (in part), and the relevant conclusions; iii. Exhibits P-36, P-37, P-38A, P-38B, P-39, P-40, P-43, P-45, P-46 as they are cited in t he Incidental Appellants’ memorandum and their related allegations; iv. Exhibit P-44: Anik Demers Cell Phones & Health History, December 20, 2022, as it is cited in the Incidental Appellants’ memorandum and included in their

schedule titled “Plaintiffs’ Exhibits ”, and any related allegations; [ 9 ] ORDERS the striking of the plan of argument titled “Petitioners’ Plan of Argument for Authorization, on March 25, 2022” from

Schedule II of the Notice of Incidental Appeal and the Incidental Appeal memorandum; [ 10 ] ORDERS that the Incidental Appellants notify and file a new version of their Notice to Appeal and Incidental Appeal memorandum within 21 days of this judgment; [ 11 ] ORDERS that the Incidental Respondents submit their response to the Incidental Appeal memorandum within 21 days from the date of filing of the amended Incidental Appeal memorandum; [ 12 ] WITH legal costs. GENEVIÈVE MARCOTTE, J.A.