2020 QCCA 911, 2020 QCCA 911

Naimer c. Naimer 2020 QCCA 911 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028859-205 ( 500-11-048871-152 ) MINUTES OF HEARING DATE: July 10, 2020 CORAM: THE HONOURABLE PATRICK HEALY, J.A. STEPHEN W. HAMILTON, J.A. STÉPHANE SANSFAÇON, J.A. APPELLANTS COUNSEL Bram Naimer JOBRA INVESTMENTS LTD. Mtre Max Bernard m tre KARL CHABOT ( LCM Avocats ) By videoconference RESPONDENTS COUNSEL Darren Naimer CLIFFORD NAIMER Mtre Brian Mitchell ( Gilbert Séguin Guilbault ) By videoconference IMPLEADED PARTIES Geshar investments ltd. GERALD NAIMER SHARON NAIMER 9298-3832 QUEBEC INC.

ABSENT AND Unrepresented On appeal from a judgment rendered on February 17, 2020 by the Honourable Marie-Anne Paquette of the Superior Court , District of Montréal .

DESCRIPTION: Application to admit documents as evidence (Art. 378, 379 and 380 C.C.P. ) Application of the respondents’ for dismissal of the appeal (de bene esse) (Art. 25, 49, 379 and 380 C.C.P. ) Respondents’ Application to strike appellants’ memorandum and certain improper allegations contained therein (Art. 25, 49, 367, 379 and 380 C.C.P. ) Clerk at the hearing : Elisabeth Lepage Courtroom: Pierre-Basile-Mignault HEARING 12:05 Commencement of the hearing. Identification of counsel.

Preliminary remarks by the Court. 12:07 Submissions by Mtre Bernard. 12:11 Discussion between the Court and Mtre Bernard. 12:18 Submissions by Mtre Mitchell. 12:35 Discussion between the Court and Mtre Mitchell. 12:47 Reply by Mtre Bernard. 12:58 Discussion between the Court and Mtre Bernard. 13:00 Discussion between the Court and Mtre Mitchell. 13:02 Recess 13:03 Resumption of the hearing. BY THE COURT : Judgement – see page 4. 13:04 Conclusion of the hearing.

Elisabeth Lepage, Clerk at the hearing JUDGMENT [ 1 ] After a long and acrimonious judicial battle, the parties signed a transaction on June 7, 2019, putting an end to four cases that were pending in Superior Court or in the Court of Appeal. [ 2 ] Unfortunately, the transaction was vague on some issues and did not address others, with the result that the parties have been fighting over the transaction since its signature. [ 3 ] A first judgment was rendered by Justice Mongeon on November 28, 2019 (rectified December 17, 2019). [1] He homologated the settlement and clarified the issues submitted to him.

There was no appeal from his judgment. Three New Issues were raised by the Appellants and a second judgment was rendered by Justice Paquette on February 17, 2020. [2] She held that the three issues did not form part of the transaction and she ordered the parties to close. [ 4 ] The Appellants made a motion for leave to appeal from the Paquette judgment. At that time, there were only two substantive issues outstanding – the ownership of the shares of the US company and the ownership of certain domain names. The Appellants

amended their application for leave to appeal to raise the issue of the jurisdiction of the Superior Court to homologate a transaction that dealt with an appeal pending before the Court of Appeal. On March 19, 2020, Justice Savard, as she then was, allowed the amendment and granted leave to appeal. [3] She mentioned in her judgment that the appeal should not be an obstacle to the closing of the transaction under reserve of the Court’s judgment on the two outstanding issues. The parties still did not close.

The Respondents made a further motion and Justice Marcotte rendered judgment on April 8, 2020 [4] ordering the parties to proceed with the execution of a partial transaction under reserve of a final and complete transaction to be executed once the outstanding issues in appeal are resolved. The Court understands that the partial closing took place on April 23, 2020 and that the parties have resolved the issue of the domain names. [ 5 ] The Appellants filed their memorandum on May 7, 2020.

The Respondents take the position that the Appellants’ memorandum raises issues that were not authorized by Justice Savard when she granted leave to appeal (the “New Issues”) and refers to documents that did not form part of the record before Justice Paquette (the “New Documents”). This has led to three further motions: 1. On June 1, 2020, the Respondents made a motion to strike the Appellants’ memorandum or certain allegations in it, for dismissal of the appeal de bene esse and/or for case management, [5] 2. The Appellants responded on June 9, 2020 with a motion to admit the New Documents as evidence, and 3.

The Respondents made a further motion to dismiss the appeal de bene esse on June 10, 2020 . [ 6 ] The three motions were heard together and the present judgment deals with the three motions. [ 7 ] First, the motions to dismiss the appeal de bene esse should be dismissed. In the first motion, the Respondents allege that, in their memorandum, the Appellants have raised the New Issues and included the New Documents. While this may justify striking portions of the memorandum, which will be discussed below, it is not grounds to dismiss the appeal.

Further, the bare statement that the appeal is ill founded is not a basis to dismiss an appeal, particularly after one of our colleagues has granted leave to appeal on the basis that “the motion for leave to appeal and the application for leave to amend raise issues that should be submitted to the Court of Appeal”. [ 8 ] The Respondents argue that the Appellants are raising three New Issues : 1. Did the Superior Court have jurisdiction to hear and decide the application? 2. Could or should the Iower court determine what is the substance and merits of a transaction? 3.

Did the Iower court properly exercise its discretion? [ 9 ] The first issue does not appear to be new. The Appellants amended their motion for leave to appeal to add the jurisdiction argument in paragraph 40. Justice Savard granted the motion for leave to appeal, as amended, with the result that the jurisdiction argument appears to form part of the appeal. The second and third issues appear to be arguments in support of the Appellants’ position on the real issue, the ownership of the US shares. [ 10 ] The Respondents also argue that the Appellants include in their memorandum two New Documents.

The first New Document is a 2016 agreement between the parties (the “2016 Side Agreement”) that deals with the US shares. The parties disagree as to its relevance to the transaction, but, on the Appellants’

interpretation, it is a very relevant document. In first instance, Mtre Bernard mentioned this agreement to Justice Paquette at the very end of his argument on the motion and said that he would like to file it, but she dismissed his request. He then emailed it to her after the hearing. The second New Document is the email whereby the 2016 Side Agreement was sent to Justice Paquette’s assistant. Justice Paquette did not mention either document in her judgment.

The Court raised with the Appellants the question of whether evidence refused by the trial judge can be characterized as new evidence or whether the Appellants should more properly make a further motion for leave to appeal from her decision at the hearing to refuse the evidence.

The Appellants did not make such a motion verbally during the hearing before us but are still within the six-month delay to do so. [ 11 ] The questions as to whether the New Issues properly form part of the Appellants’ memorandum and whether the New Documents should be included in the record are best decided by the panel that will hear the appeal on the merits. Accordingly, the motion to strike the Appellants’ memorandum and the motion to admit the New Documents as evidence will be deferred to the panel.

In the meantime, the Appellants will be authorized to file the New Documents as part of their memorandum, and the New Issues and the references to the New Documents will not be struck from their memorandum. The Respondents will be authorized to comment on the New Documents and to respond to the arguments on the New Documents and the New Issues without prejudice to their right to argue that the New Documents and New Issues should be struck from the record.

FOR THESE REASONS, THE COURT: [ 12 ] DISMISSES the motions to dismiss de bene esse ; [ 13 ] GRANTS the motion for new evidence and DISMISSES the motion to strike portions of the Appellants’ memorandum, for the sole purpose of allowing the Appellants to include the New Documents and to refer to the New Documents and argue the New Issues in their memorandum; [ 14 ] AUTHORIZES the Respondents to argue the admissibility and relevance of the New Documents and their impact on the merits of the appeal and to respond to the New Issues in their memorandum; [ 15 ] ORDERS the Respondents, after having served a copy upon the Appellants, to file in the office of the Court, no later than August 10, 2020 , four copies of a written argument not exceeding 20 pages , of their supplementary documents, and of their authorities; [ 16 ] DEFERS the motion for new evidence and the motion to strike portions of the Appellants’ memorandum to the panel that

will hear the appeal on the merits, for the panel to decide on the admissibility and weight to be given to the New Documents and whether the New Issues properly form part of the appeal; [ 17 ] The whole with judicial costs to follow. PATRICK HEALY, J.A. STEPHEN W. HAMILTON, J.A. STÉPHANE SANSFAÇON, J.A.