2011 QCCA 971, 2011 QCCA 971

Bertucci c. BL Litho inc. 2011 QCCA 971 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021347-117 ( 500-17-035135-071, 500-17-044128-083, 500-17-044129-081, 500-17-054401-099 ) MINUTES OF THE HEARING DATE: May 20, 2011 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. JACQUES DUFRESNE, J.A. DENIS JACQUES, J.A. (AD HOC) APPELLANT(

S) ATTORNEY(

S) FRANK BERTUCCI Mtre David Grossman OSLER HOSKIN HARCOURT Mtre Stephen Simmons co- attorney GREENSPOON PERREAULT RESPONDENT(

S) ATTORNEY(

S) B.L. LITHO INC. RICHARD BOILEAU GESTION RICHARD BOILEAU Mtre Pierre Larue MALO DANSEREAU Mtre Luc-Olivier Herbert co- attorney LAURENDEAU, HERBERT RESPONDENT(

S) ATTORNEY(

S) MICHEL BOILEAU Mtre Alain Barrette BARRETTE & ASSOCIÉS

On appeal from a judgment rendered on December 16, 2010 by the Honourable Mr. Justice Jean-François de Grandpré of the Superior Court district of Montreal. NATURE OF THE APPEAL : PRODUCTION – EXPERT'S REPORTS Clerk: MARC LEBLANC Court Room: PIERRE-BASILE-MIGNAULT HEARING 9 h 30 Beginning of the hearing. 9 h 30 Argument of Mtre Grossman. 10 h 00 Mtre Simmons has nothing to add. 10 h 00 Argument of Mtre Herbert. 10 h 40 Reply by Mtre Grossman. 10 h 48 Suspension of the hearing. 10 h 56 Resumption of the hearing. Judgment rendered – see page 3. 10 h 57 The hearing is concluded. Marc Leblanc Clerk BY THE COURT JUDGMENT

[ 1 ] Frank Bertucci appeals a judgment of the Superior Court that dismissed his application under

article 17 of the Rules of Practice of the Superior Court in Civil Matters insofar to produce an expert report prepared by a forensic accountant, Philip C. Levi. The same judgment granted the appellant's separate application to produce an expert report that deals with a distinct issue. [ 2 ] Mr. Bertucci's application was brought well after the issuance of the Certificate of Readiness and after the most recent trial date had been established. According to Mr. Bertucci's motion, the expert report of Mr.

Levi was rendered necessary because of the content of an expert report prepared by Brian Lindblom, a forensic document examiner, that the respondents had obtained authorization to file pursuant to Rule 17. This report concluded that the text of documents on which Mr. Bertucci relies for the prosecution of his case was added after the respondent Richard Boileau had signed them. [ 3 ] According to Mr. Bertucci, until this report was filed on May 31, 2010, he was content to rely on the terms of the documents in question without the need for any further evidentiary reinforcement.

The introduction of the report, however, changed the landscape and now required him to reconcile payments made by the respondents to establish the true amount owing to him, an exercise that Mr. Boileau had declared he was unable to perform. [ 4 ] Thus, Mr. Bertucci argued in his motion to the Superior Court, the report of Mr.

Levi reconciles the amounts described in the impugned documents with the payments made by the respondents to conclude that, contrary to the respondents' contentions, the debt has not in fact been paid. [ 5 ] The motions judge cited the relevant extract from this Court's judgment in Modes Striva Inc. et al. v. Banque Nationale , [1] which deals with the factors a trial judge needs to consider in adjudicating a motion presented pursuant to Rule 17. They are: [10] À l'occasion de l'exercice de cette discrétion, le juge doit examiner plusieurs facteurs de poids inégal dont : (1) les raisons qui ont empêché une

partie de dévoiler à temps l'ensemble de sa preuve; (2) le préjudice subi par la

partie si permission lui est refusée; (3) le préjudice subi par la

partie adverse; (4) la responsabilité de l'avocat et du client à l'origine du retard; (5) la conduite du dossier par les avocats depuis son début; (6) la saine administration de la justice. [11] Règle générale, il n'appartient pas à une Cour d'appel d'intervenir dans l'exercice de la discrétion judiciaire de la Cour supérieure à moins d'une erreur de principe ou d'un usage déraisonnable de la discrétion judiciaire. [2] [ 6 ] The motions judge dismissed Mr.

Bertucci's application because he perceived it to have been presented late, that it proceeded on the basis of factual assumptions that the respondents denied, that it offered, indirectly, an opinion on the credibility of Mr. Boileau, that the expert report would only be useful to the trial judge to the extent that judge shared the experts' conclusions as to the competing positions of Mr. Bertucci and Mr.

Boileau, and that the reconciliation was something the trial judge could do or have done after the proof had been heard. [ 7 ] With respect, the Court concludes that this is one of the rare cases where appellate intervention is appropriate to grant relief that had been denied by a motions judge deciding a Rule 17 application. [ 8 ] First, and most importantly, the motions judge did not engage in the balancing exercise of all the factors that require examination in accordance with the Court's judgment in Modes Striva . [3] The Court considers that had he done so, he would have arrived at a different result. [ 9 ] The Levi report, given the context of Mr.

Bertucci's claim and his answer to the respondents' defence to it, is prima facie admissible, and, as the motions judge acknowledged, might be useful to the trial judge under the conditions he described. On its face, the Levi report is central to the case to be tried, and its production at this stage cannot be considered premature, since it will be introduced as part of Mr. Bertucci's case in chief. [ 10 ] Moreover, the Levi Report does not directly challenge the credibility of Mr. Boileau, but simply draws conclusions about the correctness of Mr. Boileau's contentions in light of the reconciliation effected.

Even if his credibility were challenged, such an opinion would have no influence on the trial judge, who would have only been able to come to conclusions in this respect after hearing all of the evidence. [ 11 ] Thus, it properly belongs to the trial judge to determine whether, and to what extent, any use may properly be made of the Levi report and the testimony of Mr. Levi. [4] [ 12 ] As far as the delay in obtaining the Levi Report is concerned, with respect, the reasons invoked on behalf of Mr. Bertucci to the effect that such a report was not necessary until that of Mr.

Lindblom had been received are perfectly reasonable. They are, moreover, consistent with the concept of proportionality since obtaining such a report earlier was unnecessary to Mr. Bertucci's case and would have only needlessly cluttered the court file. [ 13 ] The prejudice to Mr. Bertucci caused by refusing the production of the report is a subject on which the judge did not comment. Here too, preventing him from leading this evidence could well have a bearing on the outcome of the trial. No serious prejudice has been shown that affects the respondents that is not hypothetical or speculative.

In particular, the Court rejects the respondents' submission that the effect of allowing the introduction of Mr. Levi's report will have the effect of introducing evidence through him that cannot be made by Mr. Bertucci because of his apparent inability to testify at trial for medical reasons. [ 14 ] Last, the respondents are nevertheless free to object to the introduction of the Levi report and his testimony before the trial judge on whatever basis that may then seem appropriate to them, just as if the report had been produced without prior judicial authorization.

FOR THESE REASONS, THE COURT: [ 15 ] ALLOWS the appeal with costs;

[ 16 ] REPLACES the following paragraph in the judgment of the Superior Court: REJETTE la requête du demandeur pour dépôt de l'expertise comptable de M. Philip C. Levi daté du 1er novembre 2010. with the following paragraph: ACCUEILLE la requête du demandeur pour dépôt de l'expertise comptable de M. Philip C. Levi daté du 1er novembre 2010. ALLAN R. HILTON, J.A. JACQUES DUFRESNE, J.A. DENIS JACQUES, J.A. (AD HOC)