2015 QCCA 493, 2015 QCCA 493

Sanderson General Contracting Inc. c. Parent 2015 QCCA 493 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025019-159 (500-17-083933-146) MINUTES OF THE HEARING DATE: March 13, 2015 THE HONOURABLE YVES-MARIE MORISSETTE, J.A. PETITIONER COUNSEL SANDERSON GENERAL CONTRACTING INC. Mtre JACQUELINE SANDERSON RESPONDENTS COUNSEL JULIE PARENT CHARLES POIRIER Mtre OLIVIER FRATICELLI ( Fraticelli Provost S.E.N.C.R.L. Avocats ) DESCRIPTION: Motion for leave to appeal an interlocutory judgment rendered January 26, 2015 by the Honourable Madam Justice Suzanne Courchesne, of the Superior Court, District of Montreal Clerk: Asma Berrak Courtroom: RC-18

HEARING 9 :32 Commencement of the hearing. Identification of counsel. Submission by Mtre Sanderson. 9:38 Submission by Mtre F raticelli. 9:45 Reply by Mtre Sanderson. 9:48 Suspension of hearing. 10:43 Resumption of hearing. Judgment-see page 3. 10:45 Conclusion of the hearing. Asma Berrak Clerk BY THE JUDGE JUDGMENT [ 1 ] The petitioner seeks leave to appeal from a judgment of the Superior Court [1] which, on January 26, 2015, dismissed its motion to quash paragraphs 9, 10 and 11 of a subpoena duces tecum which had been served on its representative in advance of an examination after defence.

The circumstances which gave rise to this issue are amply and accurately described in the judgment below. [ 2 ] While the petitioner’s motion to quash was dismissed, the judgment did add certain terms to the subpoena , thus restricting the scope of one of its paragraphs to documents generated during a ten-month period beginning in April 2011.

Furthermore, the motions judge underscores in her reasons that the respondents gave an undertaking that the confidentiality of any such documents would be protected: [17] Eu égard à la confidentialité des documents requis, la Cour prend acte de l’engagement des défendeurs de signer une entente de confidentialité à l’effet que ces documents ne seront pas déposés au dossier de la Cour tant qu’un juge n’en aura pas accordé l’autorisation et déterminé les modalités quant à leur production, le cas échéant. A ce stade, seule leur communication préalable en vue de l’interrogatoire de M.

Sanderson est permise et non leur dépôt au dossier de la Cour. [ 3 ] The question I must decide is therefore whether this judgment is appealable under

article 29 of the C.c.p.. [ 4 ]

Section 9 of the Charter of Rights and Freedoms [2] is not in issue here, and neither is

article 308 of the C.c.p. [ 5 ] The petitioner nonetheless argues that the documents sought are irrelevant and that are confidential pursuant to income tax legislation. In support of its argument, it relies on Desmarteau c. Ontario Lottery and Gaming Corporation [3] . [ 6 ] The Desmarteau case arose in an entirely different context and leave to appeal had been granted for the reasons set out in footnote 2 of Justice Gascon’s opinion. No such considerations are present here. [ 7 ] As far as relevance and confidentiality are concerned, I am of the view that the majority opinion in Elitis Pharma inc. c.

RX Job inc. [4] provides a full refutation of the petitioner’s argument, which compels me to conclude that the interlocutory judgment here under scrutiny falls in none of the three categories enumerated in

article 29 C.c.p. and that it is therefore not appealable. [ 8 ] For these reasons, the motion is DISMISSED , with costs.

YVES-MARIE MORISSETTE, J.A.