2016 QCCA 297, 2016 QCCA 297

PCM Sales Canada Inc. c. Dumas 2016 QCCA 297 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025862-160 (500-17-086430-157) DATE: April 12, 2017 PRESIDING: THE HONOURABLE MARK SCHRAGER, J.A. PCM SALES CANADA INC. APPLICANT – Plaintiff v. JAMES DUMAS BILLY MAHEUX 6813062 CANADA INC. (DBA QUADBRIDGE INC.) RESPONDENTS – Defendants RECTIFIED JUDGMENT [ 1 ] There was a clerical error in paragraph 10 of the present judgment rendered on February 15, 2016.

In the first sentence, third line of said paragraph, which should read “…make a judgment refusing an amendment …” instead of “… make a judgment referring an amendment...”: [10] The fact that “amending the pleadings” forms part of the enumeration of that which the Court may do as part of its case management function, does not make a judgment refusing an amendment at trial, a case management measure. This is simply not what 158(1) C.C.P. says. Moreover, the limiting of interlocutory appeals from case management decisions is obviously meant to accelerate the conduct of proceedings towards a hearing on the merits.

The refusal to allow an amendment at hearing falls outside the scope of this rationale. MARK SCHRAGER, J.A. Mtre Gary Steven Rosen DE GRANDPRÉ CHAIT For Applicant Mtre François Beaudry BCF For Respondents Date of hearing: February 12, 2016 PCM Sales Canada Inc. c. Dumas 2016 QCCA 297 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025862-160 (500-17-086430-157) DATE: February 15, 2016

IN THE PRESENCE OF THE HONOURABLE MARK SCHRAGER, J.A. PCM SALES CANADA INC. APPLICANT - Plaintiff v. JAMES DUMAS BILLY MAHEUX 6813062 CANADA INC. (DBA QUADBRIDGE INC.) RESPONDENTS - Defendants JUDGMENT [1] This is an application for leave to appeal the judgment of the Superior Court, District of Montreal (the Honourable Elise Poisson), ofJanuary 13, 2016. The judgment dismissed Applicant’s verbal motion to amend its application for an interlocutory injunction by strikingthe word “provisional” from paragraph 72 (

B) of the conclusions. [2] The effect of the amendment requested on the morning of the hearing would have been to open the door to an interlocutoryinjunction of a 12-month duration commencing on the date of the judgment pronouncing it rather than 12 months from the cessation ofRespondents’ employment as provided by the non-compete covenant. The 12-month period following the cessation of the employmentterminated on or around the date of the hearing. [3] The judge ruled that the proposed amendment would introduce an “entirely new cause of action based on

article 2088 C.C.Q.” andthus, refused the permission to amend sought by Applicant. [4] Applicant submits that the cause of action is not altered and the judgment “was effectively tantamount to a ruling on the meritsconcluding that the non-competition undertaking cannot exceed the contractual duration”. [5] Applicant relies on the judgment of this Court in Armanious v. Datex Bar Code Systems Inc., (QC CA). Thatcase was decided on the basis of

article 2088 C.C.Q. as there was no contractual non-compete clause. Of interest is the fact that the Courtdecided that the “reasonable time” for the respect of the obligation of loyalty would commence when the former employee was orderedto respect his obligation. [6] Respondents submit that a motion to amend is deemed a case management measure in virtue of article 158(1) C.C.P. Thus, theapplication for leave is governed by

article 32 C.C.P. which provides that the judgment cannot be appealed unless I deem it“unreasonable, in light of the guiding principles of procedure”. These principles are set forth in articles 17 and following and include theright to be heard and the principle of proportionality. [7] Respondents submit that applying the notion of reasonableness gleaned from administrative law, the judgment is a rational, possibleoutcome of the motion to amend and as such is not unreasonable.

Accordingly, Respondents submit that leave to appeal be denied. [8] In addition to reiterating its characterization of the judgment, Applicant submits in rebuttal that a motion to amend at trial does notqualify as a case management measure, but rather is interlocutory and governed by

article 31 C.C.P. Since the judgment puts an end tothe ability to obtain relief by way of an interlocutory injunction, Applicant submits that it falls with the ambit of

article 31 C.C.P.because “it determines part of the dispute or causes irremediable prejudice”. Applicant adds that given the question of law at issue, theinterest of justice requires that leave be granted. [9] Article 158(1) C.C.P. reads in part as follows:

For case management purposes , at any stage of a proceeding, the court may decide , on its own initiative or on request, to (1) take measures to simplify or expedite the proceeding and shorten the trial by ruling, among other things, on the advisability of ordering the consolidation or separation of proceedings or the splitting of the proceeding, of better defining the issues in dispute, of amending the pleadings , of limiting the length of the trial, of admitting facts or documents, of authorizing affidavits in lieu of testimony or of determining the procedure and time limit for the disclosure of exhibits and other evidence between the parties, or by convening the parties to a case management conference or a settlement conference, or encouraging them to use mediation; (…) 158.

À tout moment de l'instance, le tribunal peut, à

titre de mesures de gestion , prendre, d'office ou sur demande, l'une ou l'autre des décisions suivantes: 1° prendre des mesures propres à simplifier ou à accélérer la procédure et à abréger l'instruction, en se prononçant notamment sur l'opportunité de joindre, disjoindre ou scinder l'instance, de préciser les questions en litige, de modifier les actes de procédure , de limiter la durée de l'instruction, d'admettre des faits ou des documents, d'autoriser des déclarations pour valoir témoignage ou de fixer les modalités et le délai de communication des pièces et des autres éléments de preuve entre les parties, ou encore en invitant les parties à participer soit à une conférence de gestion, soit à une conférence de règlement à l'amiable ou à recourir elles-mêmes à la médiation; […] (My emphasis.) [ 10 ] The fact that “amending the pleadings” forms part of the enumeration of that which the Court may do as part of its case management function, does not make a judgment referring an amendment at trial, a case management measure.

This is simply not what 158(1) C.C.P. says. Moreover, the limiting of interlocutory appeals from case management decisions is obviously meant to accelerate the conduct of proceedings towards a hearing on the merits. The refusal to allow an amendment at hearing falls outside the scope of this rationale. [ 11 ] In view of the foregoing,

article 31 C.C.P. (and not

article 32 C.C.P. ) governs the granting of leave. The procedural and substantive issues raised merit the attention of the Court of Appeal so that leave to appeal will be granted. [ 12 ] Given the nature of the proceedings and the delays already incurred in first instance, the matter should proceed on an accelerated basis and the parties indicated their agreement with such an approach if leave were to be granted.

THEREFORE, THE UNDERSIGNED: [ 13 ] GRANTS the application for leave to appeal; [ 14 ] GRANTS leave to appeal the judgment of the Superior Court of January 13, 2016 (the Honourable Elise Poisson). [ 15 ] ORDERS that the case proceed on accelerated basis by memorandum; [ 16 ] ORDERS the suspension of proceedings in first instance; [ 17 ] ORDERS the Applicant, after having notified a copy upon the Respondents, to file in the office of the Court, no later than (March 11, 2016), five copies of a written argument not exceeding (20) pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 18 ] ORDERS the Respondents, after having notified a copy upon the Applicant, to file in the office of the Court, no later than (April 8, 2016) , five copies of a written argument not exceeding (20) pages and of their supplementary documents; [ 19 ] REMINDS the parties of

article 376 C.C.P. and

article 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the Applicant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 20 ] INSTRUCTS counsel to forthwith consult the clerk of the Court to obtain the first available date for hearing on or after May 9, 2016. [ 21 ] THE WHOLE with legal costs to follow.

MARK SCHRAGER, J.A. Mtre Gary Steven Rose DE GRANDPRÉ CHAIT For Applicant Mtre François Beaudry BCF For Respondents Date of hearing: February 12, 2016