2012 QCCA 1578, 2012 QCCA 1578

Lombard General Insurance Company of Canada c. Factory Mutual Insurance Company 2012 QCCA 1578 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022913-123 ( 500-17-014499-035 ) MINUTES OF THE HEARING DATE: September 7, 2012 THE HONOURABLE CLÉMENT GASCON, J.A. PETITIONER ATTORNEY LOMBARD GENERAL INSURANCE COMPANY OF CANADA Mtre Ronald W. Silverson (absent) GASCO GOODHUE ST-GERMAIN RESPONDENT ATTORNEYS FACTORY MUTUAL INSURANCE COMPANY Mtre Gordon Kugler (absent) Mtre Pierre Boivin (absent) KUGLER KANDESTIN MIS EN CAUSE ATTORNEY

RICHELIEU MÉTAL QUÉBEC INC. BERNARD GÉRIN-LAJOIE GÉRIN-LAJOIE EXPERTS CONSEILS INC. PIERRE CLOUÂTRE MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON JULY 20, 2012 BY THE HONOURABLE JEAN- PIERRE SENÉCAL OF THE SUPERIOR COURT, DISTRICT OF MONTREAL Clerk: Robert Osadchuck Courtroom: RC.18 HEARING Continuation of September 5, 2012, hearing. Counsel are advised that judgment will be rendered on the minutes of the hearing and their presence in Court is not required. Judgment – See page 3. Robert Osadchuck Clerk

JUDGMENT [ 1 ] The Garnishee-Appelant, Lombard General Insurance Company of Canada, seeks leave to appeal from a judgment rendered by the Mr. Justice Jean-Pierre Senécal of the Superior Court for the District of Montreal on July 20, 2012. [ 2 ] The judgment maintained the Contestation of Respondent, Factory Mutual Insurance Company, of part of the Affirmative Declaration of the Garnishee made pursuant to

Article 628 C.C.P. , declared that the policy exclusions invoked by the Garnishee did not apply, and condemned the Garnishee to pay to the Respondent, on behalf of the Garnishee's insured, the balance owing to it in capital, interest and additional indemnity since March 7, 2003, the whole pursuant to a judgment of the Superior Court confirmed by the Court of Appeal.

As of July 5, 2012, this balance stood at the sum of $2,439,644.19. [ 3 ] As the judgment at issue is rendered in a matter concerning the execution of a Superior Court judgment confirmed by the Court of Appeal, which condemned, amongst others, Richelieu Metal Quebec Inc., the insured of the Garnishee, to pay to Respondent damages of $4,297,629.09 and $679,207.00 respectively, with interest, costs and additional indemnity, the leave to appeal sought is governed by Article 26(2)

(3) C.C.P .: 26. […] An appeal also lies, with leave of a judge of the Court of Appeal, when the matter at issue is one which ought to be submitted to the Court of Appeal, particularly where, in the opinion of the judge, the matter at issue is a question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents, […] (3) from any judgment or order rendered in matters concerning execution; […]. [ 4 ] Even though granting leave to appeal in matters of execution of judgment remains exceptional, I consider that the matter at issue is one which should be submitted to the Court of Appeal.

In my opinion, the Garnishee's Motion for Leave to Appeal, and notably its paragraph 115, raises issue sufficiently important to be submitted to the Court, particularly with respect to the

interpretation of the exclusions of the applicable policies.

The sums at stake are significant and the relevant case law is apparently limited on the questions raised. [ 5 ] That said, considering that we are now at the stage of the execution of a Superior Court judgment confirmed by the Court of Appeal, it is appropriate to manage the appeal process so that it proceeds rapidly and as soon as possible, without the necessity of having to file factums. [ 6 ] Given that the appeal should proceed on the basis of the fast track procedure pursuant to Rule 50 of the Rules of the Court of Appeal in Civil Matters, which reads as follows: 50. Standard or fast track procedure.

When granting leave to appeal from a final judgment, the Judge or the Court determines whether the appeal will proceed on the basis of the standard procedure or the fast track procedure. [ 7 ] Given Rules 54 and 55 of the Rules of the Court of Appeal in Civil Matters , which reads as follows: 54. Abandonment . Where the appellant’s argument and documents standing in lieu of appellant's factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandi . 55. Foreclosure . Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedur e shall apply, mutatis mutand i. [ 8 ] Given Articles 26 and 494 C.C.P. ; FOR THESE REASONS, THE UNDERSIGNED:

[ 9 ] GRANTS the Motion for Leave to Appeal; [ 10 ] AUTHORIZES the Garnishee, Lombard General Insurance Company of Canada, to appeal the judgment rendered on July 20, 2012 by Mr.

Justice Jean-Pierre Senécal of the Superior Court for the District of Montreal in record number 500-17-014499-035; [ 11 ] ORDERS the Appellant, after having served a copy upon the Respondent, to file in the office of the Court, no later than October 15th, 2012 , four copies of a written argument not exceeding 25 pages, of the documents that would normally have made up schedules I, II and III of its factum and of its authorities; [ 12 ] ORDERS the Respondent, after having served a copy upon the Appellant, to file in the office of the Court, no later than November 30th, 2012 , four copies of a written argument not exceeding 25 pages, of its supplementary documents, and of its authorities; [ 13 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12- point type, with no more than 12 characters per 2.5 cm, the use of the font ARIAL-12 being strongly recommended ; [ 14 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 15 ] DEFERS the file to the Master of the rolls to determine the date of a 90 minutes hearing in front of the Court as soon as possible; [ 16 ] COSTS TO FOLLOW .

CLÉMENT GASCON, J.A.