2011 QCCA 93, 2011 QCCA 93

Ernst & Young, l.l.p. c. Weinberg 2011 QCCA 93 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021270-103 ( 500-17-035811-077 et 500-17-035405-078 ) MINUTES OF THE HEARING DATE: January 19, 2011 THE HONOURABLE YVES-MARIE MORISSETTE, J.A. PETITIONER ATTORNEY(

S) ERNST & YOUNG LLP Mtre Gérald Tremblay Mtre Geneviève Bergeron McCARTHY, TÉTRAULT RESPONDENT(

S) ATTORNEY(

S) RONALD A. WEINBERG , ès qualitiés as sole liquidator of the Estate of the Late Micheline Charest. 153114 CANADA INC. 2950995 CANADA INC. 3238369 CANADA INC. McRAW HOLDING INC. 3359174 CANADA INC 3363953 CANADA INC. Mtre Robert Kugler KUGLER, KANDESTIN Mtre Jean Lozeau JOLI-COEUR, LACASSE

IMPLEADED PARTIES ATTORNEY(

S) HASANAIN PANJU AUTORITÉ DES MARCHÉS FINANCIERS Mtre Jacques Rossignol Mtre Mélissa Rivest LAPOINTE, ROSENSTEIN, MARCHAND, MELANÇON Mtre Émilie Robert Service du contentieux Autorité des marches financiers MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT RENDERED ON NOVEMBER 23, 2010 BY THE HON. JEAN-YVES LALONDE, J.C.S. Clerk: Marcelle Desmarais Courtroom: RC.18 HEARING 10 h 08 Commencement of the hearing.

Identification of counsel. 10 h 08 Submission by Mtre Gerald Tremblay 10 h 25 Submission by Mtre Jacques Rossignol 10 h 27 Submission by Mtre Robert Kugler 10 h 39 Submission by Mtre Jean Lozeau. 10 h 43 Reply by Mtre Gerald Tremblay 10 h 48 Remarks by Mtre Jean Lozeau. 10 h 49 Ends of arguments. 10 h 49 Suspension. 11 h 27 Resumption BY THE JUDGE: Judgment – see page 3.

Marcelle Desmarais Clerk JUDGMENT [ 1 ] As is apparent from the comments of Mr. Justice Forget in the judgment of the Court of Appeal of September 23d, the disclosure procedure which had been followed in the Superior Court prior to that judgment did break new ground. It seems to me, particularly in light of paragraphs [33] and [49] of Mr. Justice Forget’s reasons, that the issues now raised by the petitioner Ernst & Young are ones which merit a reconsideration by a panel of the Court.

The judgment of 23 d November 2010 may be affirmed or reversed but since I am inclined to believe that the odds, while not exactly even, are certainly quite close, and since the case involves very substantial financial stakes, I am also of the view that prudence, at this stage, dictates that leave be granted. [ 2 ] The undersigned , ruling on a motion for leave to appeal from an interlocutory judgment rendered by the Superior Court on November 23, 2010 by the Honourable Jean-Yves Lalonde ; [ 3 ] After examining the file and hearing the parties; [ 4 ] Given articles 29 and 511 C.C.P. ; [ 5 ] Given that there should be case management of the appeal; [ 6 ] Given rules 48 and 49 of the Rules of the Court of Appeal in Civil Matters , which reads as follows: 48.

Abandonment. Where the appellant’s arguments and documents standing in lieu of the 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 mutandis . 49. 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 Procedure apply, mutatis mutandis.

THEREFORE FOR THESE REASONS: [ 7 ] GRANTS the motion; [ 8 ] ORDERS the suspension of proceedings in first instance; [ 9 ] PLACES the case on the role on May 20, 2011, .for a 120 minutes hearing , room Antonio-Lamer; [ 10 ] ORDERS the appellant(s), after having served a copy upon the respondent(s), to file in the office of the Court, no later than March 4, 2011 , four copies of a written argument not exceeding 20 pages , of the exhibits that would normally have made up schedules I, II and III of his/her/its/their factum and of his/her/its/their authorities; [ 11 ] ORDERS the respondent(s), after having served a copy upon the appellant(s), to file in the office of the Court, no later than April 19, 2011 , for copies of a written argument not exceeding 20 pages , of his/her/its/their supplementary documents and of his/her/its/their authorities;

[ 12 ] 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; Cost to follow. THE HONOURABLE YVES-MARIE MORISSETTE, J.A.