2020 QCCA 971, 2020 QCCA 971

Bausch Health Companies Inc. c. California State Teachers' Retirement System 2020 QCCA 971 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028886-208 , 500-09-028887-206, 500-09-028888-204 (500-11-055722-181, 500-11-054155-185) DATE: June 16, 2020 BEFORE THE HONOURABLE ROBERT M. MAINVILLE, J.A. 500-09-028886-208 BAUSCH HEALTH COMPANIES INC. J. MICHAEL PEARSON HOWARD B. SCHILLER ROBERT L. ROSIELLO ROBERT A. INGRAM RONALD H. FARMER THEO MELAS-KYRIAZI G. MASON MORFIT LAURENCE PAUL ROBERT N. POWER NORMA A. PROVENCIO LLOYD M. SEGAL KATHARINE B. STEVENSON COLLEEN GOGGINS JEFFREY W.

UBBEN APPLICANTS ​​– Defendants v. CALIFORNIA STATE TEACHERS’ RETIREMENT SYSTEM RESPONDENT – Applicants and PRICEWATERHOUSECOOPERS LLP AIG INSURANCE COMPANY OF CANADA ALLIANZ GLOBAL RISKS US INSURANCE COMPANY EVEREST INSURANCE COMPANY OF CANADA ROYAL & SUN ALLIANCE INSURANCE COMPANY OF CANADA LIBERTY MUTUAL INSURANCE COMPANY LLOYD’S UNDERWRITERS TEMPLE INSURANCE COMPANY IRONSHORE CANADA LTD. XL INSURANCE COMPANY SE CHUBB INSURANCE COMPANY OF CANADA (formerly Ace INA Insurance) IMPLEADED PARTIES – Defendants 500-09-028887-206 BAUSCH HEALTH COMPANIES INC. J. MICHAEL PEARSON HOWARD B. SCHILLER ROBERT L.

ROSIELLO ROBERT A. INGRAM RONALD H. FARMER THEO MELAS-KYRIAZI G. MASON MORFIT LAURENCE PAUL ROBERT N. POWER NORMA A. PROVENCIO LLOYD M. SEGAL KATHARINE B. STEVENSON FRED HASSAN COLLEEN GOGGINS

JEFFREY W. UBBEN APPLICANTS ​​– Defendants v. BLACKROCK ASSET MANAGEMENT CANADA iSHARES TRUST ISHARES INC. BLACKROCK INSTITUTIONAL TRUST COMPANY, N.A. RESPONDENTS – Applicants 500-09-028888-204 PRICEWATERHOUSECOOPERS LLP APPLICANT – Defendant v. CALIFORNIA STATE TEACHERS’ RETIREMENT SYSTEM RESPONDENT – Applicant and BAUSCH HEALTH COMPANIES INC. J. MICHAEL PEARSON HOWARD B. SCHILLER ROBERT L. ROSIELLO ROBERT A. INGRAM RONALD H. FARMER THEO MELAS-KYRIAZI G. MASON MORFIT LAURENCE PAUL ROBERT N. POWER NORMA A. PROVENCIO LLOYD M. SEGAL KATHARINE B. STEVENSON COLLEEN GOGGINS JEFFREY W.

UBBEN AIG INSURANCE COMPANY OF CANADA ALLIANZ GLOBAL RISKS US INSURANCE COMPANY EVEREST INSURANCE COMPANY OF CANADA ROYAL & SUN ALLIANCE INSURANCE COMPANY OF CANADA TEMPLE INSURANCE COMPANY XL INSURANCE COMPANY SE CHUBB INSURANCE COMPANY OF CANADA (formerly Ace INA insurance) IRONSHORE CANADA LTD. LIBERTY MUTUAL INSURANCE COMPANY LLOYD’S UNDERWRITERS IMPLEADED PARTIES – Defendants JUDGMENT [ 1 ] In file 500-09-028887-206, the applicants Bausch Health Companies Inc. (formerly Valeant Pharmaceuticals International Inc.), J. Michael Pearson, Howard B. Schiller, Robert L. Rosiello, Robert A. Ingram, Ronald H.

Farmer, Theo Melas-Kyriazi, G. Mason Morfit, Dr. Laurence Paul, Robert N. Power, Norma A. Provencio, Lloyd M. Segal, Katharine B. Stevenson, Fred Hassan, Colleen Goggins and Jeffrey W. Ubben (collectively referred to as the “ Valeant Defendants ”) seek leave to appeal the judgment of the Honourable Mr. Justice Peter Kalichman, that granted a motion for authorization to bring an action against them pursuant to s. 225.4 of the Quebec Securities Act , c.

V.1.1 (“ QSA ”) filed by respondents Blackrock Asset Management Canada, iShares Trust, IShares Inc. and Blackrock Institutional Trust Company, N.A. (collectively referred to as the “ Blackrock Claimants ”) [ 2 ] In file 500-09-028886-208, the Valeant Defendants seek leave to appeal the same judgment dated February 3, 2020 that also granted a motion for authorization to bring an action against them pursuant to s. 225.4 QSA filed by the respondent California State Teachers’ Retirement System (“ CalSTRS ”). [ 3 ] In file 500-09-028888-204, the applicant PricewaterhouseCoopers LLP (“ PWC ”) also seeks leave to appeal the same judgment dated February 3, 2020 that granted the same motion for authorization to bring an action against it pursuant to s. 225.4 QSA filed by CalSTRS. * * * * * [ 4 ] A class action was authorized on August 29, 2017, by Justice Chatelain of the Quebec Superior Court in Catucci v.

Valeant Pharmaceuticals International Inc. , 2017 QCCS 3870 (the “ Catucci class action proceedings ”). I refused leave to appeal that judgment

on November 30, 2017: Goldman, Sachs & Co. v. Catucci , 2017 QCCA 1890 . The Valeant Defendants and PWC are defendants in the Catucci class action proceedings which, inter alia , seek damages against them pursuant to s. 225.4 QSA on the ground that as a result of their actions or failures, the price of the securities of Valeant Pharmaceuticals International, Inc. acquired in the secondary market were artificially inflated through misrepresentations.

As the misrepresentations began to be publicly corrected, the price of these securities dropped dramatically, thus causing substantial damages to investors. [ 5 ] On September 5, 2017, a press release was issued with respect to the Catucci class action proceedings announcing that an authorization under s. 225.4 QSA had been granted.

On June 19, 2018, the Blackrock Claimants and PWC executed opt-out forms excluding themselves from the Catucci class action proceedings. [ 6 ] On March 2, 2018, prior to opting out of this class action, the Blackrock Claimants filed an application for authorization under s. 225.4 QSA to institute their own distinct action against the Valeant Defendants based on essentially the same allegations as set out in the Catucci class action proceedings and claiming $567,800,000 in damages. [ 7 ] On December 19, 2018, after opting out of the class action, CalSTRS also filed an application for authorization under s. 225.4 QSA to institute its own distinct action against both the Valeant Defendants and PWC also based on essentially the same allegations as set out in the Catucci class action proceedings and claiming $32,370,736 in damages. * * * * * [ 8 ] Both applications were heard and decided by Justice Kalichman.

At the hearing, the Valeant Defendants and PWC did not contest that the claims of the Blackrock Claimants and CalSTRS satisfied the test pursuant to s. 225.4 QSA, provided that they were not time-barred. The only question in dispute before Justice Kalichman was therefore whether these claims were indeed time-barred. [ 9 ] Subsection 236(3) QSA sets out that the applicable prescription periods for such claims are subordinated to a six-month timeframe from the publication of a press release announcing that authorization has been granted by a court to bring an action under s. 225.4 QSA.

The applicants thus submitted to Justice Kalichman that the claims of the Blackrock Claimants and CalSTRS had been forfeited since more than six months had elapsed since the September 5, 2017, press release in the Catucci class action proceedings. [ 10 ] Justice Kalichman rejected that argument, finding that s. 236(3) QSA provides for a six-month prescription period and not a delay of forfeiture: para. 84 of the judgment.

He also found that this prescription period began to run from March 5, 2018, six months after the September 5, 2017, press release had been issued in the Catucci class action proceedings: para. 100 of the judgment. [ 11 ] He further found (

a) that the time limit for the Blackrock Claimants and CalSTRS to seek authorization under s. 225.4 QSA had been suspended pursuant to art. 2908 of the Civil Code of Quebec (“ CCQ ”) as of October 2015, with the filing of the motion for authorization in the Catucci class action proceedings, and had begun to run again on June 19, 2018, when the Blackrock Claimants and CalSTRS opted out of those proceedings: para. 116 of the judgment, and (

b) that the six-month period provided in s. 236(3) had been interrupted under art. 2892 CCQ by the filing of the Blackrock Claimants’ and CalSTRS’ own distinct motions for authorization under s. 225.4 QSA: para. 119 of the judgment. [ 12 ] The submissions of the Valeant Defendants and of PWC were therefore dismissed and the authorizations to bring actions pursuant to s. 225.5 QSA were granted to the Blackrock Claimants and to CalSTRS. * * * * * [ 13 ] A judgment granting an authorization to bring an action under s. 225.4 QSA is a judgment “rendered in the course of a proceeding / rendu en cours d’instance ” within the meaning of art. 31 of the Quebec Code of Civil Procedure (“ CCP ”): see by analogy Theratechnologies inc. c. 121851 Canada inc. , 2013 QCCA 1256 , paras. 77 and 85 (“ Theratechnologies ” ) and Amaya v.

Derome , 2018 QCCA 120 , para. 61 (“ Amaya ”). [ 14 ] Consequently, the judgment at issue here may be appealed with leave if at least one of the following two criteria is satisfied: “it determines part of the dispute” or “causes irremediable injury to a party”: art. 31, para. 2 CCP.

If one or both of the criteria is satisfied, the judge considering the leave application must then consider whether it is in the interests of justice that leave be granted, taking into account the guiding principles of civil procedure, notably the principle of proportionality. * * * * * [ 15 ] Since Justice Kalichman dismissed the arguments put forward by the Valeant Defendants and PWC with respect to forfeiture and prescription, can his judgment be said to have determined part of the dispute, thus satisfying the first criterion of art. 31, para. 2 CCP?

Questioned on this matter at the hearing on the leave applications, all parties took the position that the judgment did not formally bind the trial judge on those issues.

As a result, while the Valeant Defendants and PWC recognize that it is highly unlikely that the trial judge would not, on a de facto basis, follow the judgment of Justice Kalichman on the issues of forfeiture and prescription, they do not rely on the first criterion to support their respective leave applications. [ 16 ] The Valeant Defendants and PWC thus rely solely on the second criterion and submit that the judgment “causes irremediable injury” to them.

They refer to the reasons of Gascon, J.A. (as he then was) in Theratechnologies , para. 99, in which he found that the prospect of a long and costly dispute with particular rules of evidence under s. 225.4 QSA entails irremediable consequences for the defendant: [ translation ] [99] Although, in both cases, the effect of the judgment is to order that the trial proceed on up to the merits, according to

section 225.4 of the [QSA] simply instituting the proceeding can generate a situation that the final judgment cannot remedy . The very purpose of the screening mechanism is to ensure that a reporting issuer is not needlessly forced to bear the irremediable consequences of having to

face a long and costly dispute, with particular rules of evidence . (Emphasis Added) [ 17 ] The Blackrock Claimants and CalSTRS dispute this in these proceedings. In their view, the prospect of facing “a long and costly dispute” is substantially mitigated in light of the fact that the Valeant Defendants and PWC will, in any event, have to litigate the same issues in the Catucci class action proceedings.

They submit that since the claims of the Blackrock Claimants and of CalSTRS will, in all likelihood, be determined in a joint hearing with the Catucci class action, the idea that the litigation itself constitutes irremediable injury cannot be sustained in this specific case since the Valeant Defendants and PWC will have to fully litigate the issues whatever the outcome. [ 18 ] In my view, the Blackrock Claimants and CalSTRS misconstrue the reasoning of Gascon, J.A. in Theratechnologies .

It is not solely the prospect of a long and expensive litigation which constitutes the irremediable injury, but rather (and more significantly) the fact that such litigation will be subject to special rules of evidence as well as to special rules for the determination of damages. [ 19 ] It must be recalled that, following the reasoning in Elitis Pharma , the irremediable injury referred to in art. 31 CCP is that caused to the judicial proceedings themselves and not the inconvenience or other injury that may result from the judgment: Elitis Pharma inc. c.

RX Job inc. , 2012 QCCA 1348 , paras. 13-16 (” Elitis Pharma ”). See also Devimco Immobilier inc. c. Garage Pit Stop inc. , 2017 QCCA 1 , para. 15 (Bich J.A., as judge alone); Droit de la famille – 192152 , 2019 QCCA 1790 , para. 4 , (Cotnam, J.A., as judge alone). As authors A. Rochon, J. Vani and V. Ranger noted: “[TRANSLATION] Just because a judgment creates irremediable factual harm to a party does not mean that it imposes an irremediable legal situation on that party. Only the latter case satisfies the

article 31 criterion / Ce n’est pas parce qu’un jugement crée un préjudice factuel irrémédiable à une

partie qu’il lui impose pour autant une situation juridique irrémédiable. Seul ce dernier cas répond au critère de l’article 31 ” : Le Grand Collectif – Code de procédure civile – Commentaires et Annotations , 4th ed., Yvon Blais, 2019, vol. 1, p. 255. [ 20 ] It is true that in Procureure générale du Québec du Québec c. Groupe Hexagone , 2018 QCCA 2129 , paras. 24-26 and 83 , the issue of whether the reasoning set out in Elitis Pharma applies to art. 31, para. 2 CCP was left open for reconsideration.

However, as Kasirer J.A. (as he then was) noted in Amaya , paras. 71-75 , there is little doubt that this reasoning applies to a leave application with respect to a judgment granting an authorization to institute an action under s. 225.4 QSA: [71] The respondents say that even if leave to appeal from the judgment is governed by

article 31, para. 2 C.C.P ., leave should be refused because it does not cause “irremediable injury/préjudice irrémédiable” to a party. At best, they argue, the judgment results in a financial inconvenience for Amaya, but causes no inherent prejudice to the proceedings within the meaning of Elitis Pharma . Not only is the anticipated harm purely financial, but that harm is, for the moment, hypothetical in that, apart from the insurance policies, no disclosure has yet been ordered. [72] I disagree. The prejudice caused by the judgment is sufficient for the purposes of granting leave under the second paragraph of

article 31 C.C.P . [73] First, I note that Gascon, J.A., in Theratechnologies , turned his mind to precisely this issue, deciding that a financial prejudice was, exceptionally and notwithstanding Elitis Pharma , sufficient to justify leave under

article 31 C.C.P . in connection with the screening mechanism in

section 225.4 of the Act . He wrote: [88] Aux termes de l'art. 225.4 LVM , l'un des fondements de l'autorisation requise est le contrôle des actions dites opportunistes dont les conséquences financières peuvent justement être sérieuses et néfastes pour un émetteur assujetti. Sous ce rapport, les frais afférents au processus judiciaire sont une des raisons d'être du mécanisme de filtrage instauré. [74] Second, and decisively to my mind , is the fact that the prejudice alleged by the appellant is not just financial .

Fundamentally, Amaya takes the position that by allowing documentary discovery against an unwilling defendant, the motion judge’s decision altered the manner in which leave is obtained under

section 225.4 of the Act . Without discovery, the would-be plaintiff is charged with finding evidence that indicates summarily that the proposed action is brought in good faith and has a reasonable possibility of success. If discovery is allowed, the character of the debate changes. Not only is a defendant exposed to the time and costs associated with the discovery process, but it may be called to produce evidence – contrary, Amaya claims, to the purpose of the Act – that justifies the commencement of the action by the would-be plaintiffs that otherwise might not rise to the level of the evidentiary bar set by

section 225.4 of the Act . [75] If Amaya is correct on this point, this changes the nature of the proceedings at the leave stage under

section 225.4. As such, the decision to allow discovery would involve more than expense: it would have an impact on the character of the proceedings themselves, as contemplated in Elitis Pharma . In my view, this is sufficient to give jurisdiction for leave to be granted , subject to the requirement that granting leave also be in keeping with the interests of justice (

article 9 C.C.P . ) and the respect of the principle of proportionality (

article 18 C.C.P . ). (Emphasis added; references omitted) [ 21 ] In this case, the decision to authorize the actions of the Blackrock Claimants and CalSTRS pursuant to s. 225.4 QSA has an irremediable impact on the proceedings which can be deemed an “irremediable injury” within the meaning of art. 31, para. 2 CCP. Indeed special legal rules govern both the burden of proof in such actions (ss. 225.12 to 225.27 QSA) as well as the assessment of damages and the apportionment of liability (ss. 225.28 to 225.33 QSA).

These rules are materially different from those applied in a regular civil action. [ 22 ] As an example, pursuant to s. 225.12 QSA, the plaintiffs in the proceedings will not be required to prove that they relied on the documents or public oral statements containing misrepresentations. Moreover, under ss. 225.28 and 225.29 QSA, the damages will be assessed on the basis of formulas tied to market pricing. As Gascon, J.A. noted in Theratechnologies , para. 63:

[ translation ] [63] To balance the forces involved, the new recourse established a presumption in favour of the investor: when the security is acquired or transferred at the time of a false declaration or a failure to point out a material change, the fluctuation in the value of the security is presumed to be attributable to that fault.

Investors are therefore released from a heavy burden, namely, demonstrating that they relied on the false information or the failure to point out a material change and that the variation in the market price of the security is the result of that information or failure. [ 23 ] Consequently, it is not primarily the prospect of facing a long and costly dispute that constitutes the irremediable harm to the Valeant Defendants and PWC, but rather the impacts of the proceedings themselves resulting, among other, from the special rules of evidence and for assessing damages. [ 24 ] While it is true that the Blackrock Claimants and CalSTRS were initially included in the Catucci class action proceedings and consequently could have benefited from these special rules under the QSA had they remained in those proceedings, the simple fact of the matter is that they voluntarily opted out of that class action.

There are legal consequences to that choice for all the parties.

One of those consequences is that the Blackrock Claimants and CalSTRS must seek and obtain their own separate authorizations to initiate distinct actions under s. 225.4 QSA, with all that this may entail. [ 25 ] I therefore conclude that the impugned judgment causes irremediable injury within the meaning of art. 31, para. 2 CCP. * * * * * [ 26 ] One of the criteria of art. 31 CCP having been satisfied, the question that remains to be decided is whether it is in the interests of justice to grant leave taking into account the guiding principles of procedure, notably the principle of proportionality. [ 27 ] The issues raised in this case pertain to the nature of the time periods set out in ss. 235 and 236 QSA and their application in this case.

Pursuant to these provisions, a civil action under the QSA is subject to a general three-year prescription period from the knowledge of the facts giving rise to the action. Moreover, s. 236(3) sets out that this period is “subordinate to the following limitations” […] (3) six months from the publication of the press release announcing that authorization has been granted by the court to bring an action under Division II of

Chapter II or comparable provisions of extra-provincial securities laws within the meaning of

section 305.1 regarding the same misrepresentation or failure to make timely disclosure, in the case of actions under that division. [ 28 ] The issues that would have to be dealt with in the appeal - should leave be granted – would therefore include the following: (1) whether this six-month timeframe is a delay of forfeiture which cannot be suspended or interrupted; and alternatively (2) whether that timeframe may be suspended pursuant to art. 2908 CCQ with respect to a party who opts out of a class action proceeding. [ 29 ] The parties acknowledge that these issues have never been considered by this Court and that the only judgment of the Superior Court to have dealt with them is the judgment for which leave is sought.

Moreover, the Valeant Defendants and PWC rightly point out that determining the nature of the six-month timeframe (delay of forfeiture vs delay of prescription) is an issue of public order, since forfeiture must be raised by a court of its own motion: art. 2878 CCQ. [ 30 ] The Blackrock Claimants and CalSTRS nevertheless submit that the principles that apply with respect to leave to appeal a judgment refusing to grant an application to dismiss an action should be extended to this case.

Though they recognize that an authorization under s. 225.4 QSA is not the same as an application to dismiss, they believe that, in this specific case, the judgment of Justice Kalichman should be treated as analogous. [ 31 ] Because judgments dismissing motions to dismiss based on art. 165 CCP or art. 168 CCP usually do not bind the trial judge and, consequently cannot be regarded as causing an irremediable injury to a party within the meaning of art. 31 CCP, this Court has long held that they cannot be appealed apart from a few exceptions, such as res judicata, lis pendens and absence of jurisdiction or if the judgment raises a new and important question of law that must be answered immediately for the benefit of the public or the administration of justice: see, among numerous other decisions, Kaeser Compressors Canada inc. c.

Société d’assurance générale , 2020 QCCA 333 , para. 4 ; Hudson (Ville de) c. Maher , 2016 QCCA 1794 , para. 5 ; Labrosse c. Vernet , 2016 QCCA 1491 , paras. 7-10 ; Wilson v. Dias , 2016 QCCA 2072 , para. 2 ; Immeubles Karka inc. c. 9124-9797 Québec inc ., 2016 QCCA 1342 , paras. 2-4 ; Manufacturier Patella inc. c. 9123- 7750 , 2007 QCCA 354 , paras. 3-4 . [ 32 ] However, this line of reasoning does not apply here.

In this instance the only issues raised by the Valeant Defendants and PWC with respect to the authorization pursuant to s. 225.4 QSA pertain to the alleged forfeiture or prescription of the underlying actions. Moreover, the pertinent facts to decide these issues are not in dispute nor are they the subject of controversy. Consequently, the judgment of Justice Kalichman principally deals with issues of law.

By resolving those issues of law as it does, the judgment sets in motion the special rules of the QSA with respect to civil actions which, as noted above, entail irremediable impacts on the proceedings themselves. [ 33 ] Had the factual matrix with respect to the issues of forfeiture and prescription been unknown or in dispute at the authorization stage, this would certainly have been a factor weighing against granting leave to appeal, since the trial judge would then clearly be in a better position to decide those legal issues on a full evidentiary record: Goldman, Sachs & Co. v.

Catucci , 2017 QCCA 1890 , paras. 41- 44 . This is not the case here. [ 34 ] Rather, the judgment of Justice Kalichman will carry a persuasive weight on the issues of forfeiture and prescription that will bind the trial judge, if not de jure at the very least de facto . In this sense, it is as close as can be to a final judgment on these issues. This factor and the irremediable injury that results from the authorization judgment lead me to conclude that leave to appeal should be granted.

This is, moreover, consistent with the reasoning of Kasirer, J.A. in Amaya under which the Court granted leave to appeal a judgment rendered in the course of proceedings leading to an authorization under s. 225.4 QSA. [ 35 ] In conclusion, in light of the nature of the questions at issue and the large financial amounts at stake, I am satisfied that granting

leave in this case would be in the interests of justice taking into account the guiding principles of civil procedure, including the rule of proportionality. * * * * * [ 36 ] While the Valeant Defendants ask that the judgment of Justice Kalichman be stayed pending the appeal, PWC has not made a similar request. In the circumstances of this litigation, I do not believe it is appropriate grant a stay. Indeed, it is my understanding that the Catucci class action proceedings are continuing and are being jointly managed in the Superior Court with the proceedings initiated by the Blackrock Claimants and CalSTRS.

It is in the interests of all parties that decisions in the Superior Court with respect to the conduct of the proceedings be made with their input while the appeals are pending. Based on the record before me at this time, there is therefore no compelling reason to grant the stay requested by the Valeant Defendants. However, the circumstances warrant that the appeals be managed so as to be heard as soon as possible.

FOR THESE REASONS, THE UNDERSIGNED: [ 37 ] GRANTS the three applications for leave to appeal brought in files 500-09-028886-208, 500-09-028887-206 and 500-09- 028888-204, and consequently AUTHORIZES the three appeals from the judgment of the Honourable Mr.

Justice Peter Kalichman dated February 3, 2020; [ 38 ] JOINS the appeals in files 500-09-028886-208, 500-09-028887-206 and 500-09-028888-204 and ORDERS that the three appeals proceed together on a joint record and be heard on the same date by the same bench of this Court; [ 39 ] ORDERS the appellants in all three appeals to prepare a single joint appeal record for all three appeals (single joint Schedules I, II and III to their respective briefs), to notify a copy of this joint record to the other parties and to file five copies of the joint record with the Court on or before August 31, 2020; [ 40 ] ORDERS the appellants in files 500-09-028886-208 and 500-09-028887-206, namely Bausch Health Companies Inc., J.

Michael Pearson, Howard B. Schiller, Robert L. Rosiello, Robert A. Ingram, Ronald H. Farmer, Theo Melas-Kyriazi, G. Mason Morfit, Dr. Laurence Paul, Robert N. Power, Norma A. Provencio, Lloyd M. Segal, Katharine B. Stevenson, Colleen Goggins, Jeffrey W.

Ubben and Fred Hassan, to notify a copy to the other parties and to file at the same time as the joint appeal record (on or before August 31, 2020) , five copies of a single joint Argument (Parts I to IV) not exceeding 30 pages ; [ 41 ] ORDERS the appellant in file 500-09-028888-204, PricewaterhouseCoopers LLP, to notify a copy to the other parties and to file at the same time as the joint appeal record (on or before August 31, 2020) , five copies of an Argument (Parts I to IV) not exceeding 30 pages ; [ 42 ] ORDERS California State Teachers’ Retirement System, the respondent in files 500-09-028886-208 and 500-09-028888-204, to notify a copy to the other parties and to file by October 13, 2020, five copies of a single brief for both appeals containing an argument (Parts I to IV) not exceeding 30 pages ; [ 43 ] ORDERS Blackrock Asset Management Canada, iShares Trust, IShares Inc. and Blackrock Institutional Trust Company, N.A., respondents in file 500-09-028887-206, to notify to the other parties and to file by October 13, 2020, five copies of a single joint brief containing an argument (Parts I to IV) not exceeding 30 pages ; [ 44 ] REFERS the matter to the Clerk of the Court to determine a hearing date for the three appeals for a total maximum duration of 180 minutes ; [ 45 ] COSTS on the motions for leave to appeal to follow the result of the joint appeals.

ROBERT M. MAINVILLE, J.A. Mtre Éric Préfontaine Mtre Allan Coleman OSLER, HOSKIN & HARCOURT For Bausch Health Companies Inc., Robert L. Rosiello, Robert A. Ingram, Ronald H. Farmer, Theo Melas-Kyriazi, G. Mason Morfit, Laurence Paul, Robert N. Power, Norma A. Provencio, Lloyd M. Segal, Katharine B. Stevenson, Colleen Goggins, Fred Hassan and Jeffrey W. Ubben Mtre Robert Torralbo Mtre Simon Seida BLAKE, CASSELS & GRAYDON For J. Michael Pearson Mtre André Ryan Mtre Shaun Finn BCF For Howard B. Schiller Mtre Sébastien C. Caron Mtre Marie-Noël Rochon Mtre Catherine Coursol

LCM For California State Teachers’ Retirement System Mtre Alain Riendeau Mtre Noah Boudreau FASKEN MARTINEAU DuMOULIN For Pricewaterhousecoopers LLP Mtre Hrant Bardakjian INF For Allianz Global Risks US Insurance Company Mtre Mary Delli Quadri MILLER THOMSON For Everest Insurance Company of Canada, Royal & Sun Alliance Insurance Company of Canada, Chubb Insurance Company of Canada (formerly Ace INA Insurance) and Liberty Mutual Insurance Company Mtre Laurent Lacas CLYDE & CO For Lloyd’s Underwriters Mtre Carolan Villeneuve WOODS & ASSOCIÉS For Temple Insurance Company Mtre Benoît G.

Bourgon ROBINSON SHEPPARD SHAPIRO For AIG Insurance Company of Canada Mtre François Marseille RATELLE, RATELLE & ASSOCIÉS For Ironshore Canada Ltd. Mtre Maxime Nasr Mtre Josée Cavalancia Mtre Émilie B. Kokmanian BELLEAU LAPOINTE For Blackrock Asset Management Canada, iShares Trust, Ishares Inc., Blackrock Institutional Trust Company, N.A. Date of hearing: June 9, 2020