2012 QCCA 747, 2012 QCCA 747

Canada (Attorney General) c. Imperial Tobacco Ltd. / 2012 QCCA 747 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022505-127 ( 500-06-000076-980 et 500-06-000070-983 ) MINUTES OF THE HEARING DATE: April 20, 2012 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER ATTORNEYS ATTORNEY GENERAL OF CANADA Mtre Nathalie Drouin Mtre Laurent Brisebois JOYAL LEBLANC (Justice Canada) Mtre Maurice Régnier GILBERT SIMARD TREMBLAY RESPONDENTS ATTORNEYS

IMPERIAL TOBACCO LIMITED JTI-MACDONALD CORP. ROTHMANS, BENSON & HEDGES INC. Mtre Suzanne Côté Mtre Craig Lockwood OSLER HOSKIN & HARCOURT Mtre Douglas Mitchell IRVING MITCHELL KALICHMAN MIS EN CAUSE ATTORNEYS CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ JEAN-YVES BLAIS CÉCILIA LÉTOURNEAU Mtre Marc Beauchemin DE GRANDPRÉ CHAIT Mtre André Lespérance LAUZON BÉLANGER MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON FEBRUARY 14, 2012, BY THE HONOURABLE BRIAN J. RIORDAN OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 14:04 Commencement of the hearing.

Exchange between the judge and counsel. 14:08 Submission by Mtre Drouin. 14:51 Mtre Drouin askes the judge to amend the conclusions of the motion. The request is not contested.

14:53 Submission by Mtre Régnier.15:02 Submission by Mtre Côté.15:32 Submission by Mtre Lockwood.15:43 Submission by Mtre Mitchell.15:56 Reply by Mtre Drouin.16:08 Suspension.16:35 Resumption of the hearing. BY THE JUDGE. Judgment – See page 4.16:53 Conclusion of the hearing.

Annick NguyenClerk JUDGMENT [1] The Attorney General of Canada seeks leave to appeal from an interlocutory judgment of the Superior Court, District ofMontreal (the Honourable Brian Riordan), rendered on February 14, 2012, dismissing the Attorney General's motion to dismiss theactions in warranty brought by the respondents against the government of Canada. The Attorney General of Canada also seeks leave toappeal a second interlocutory judgment, rendered by the same judge of the Superior Court on the same day, granting, in part, ImperialTobacco Canada's motion to authorize amendments to ITC's action in warranty.

Both the motion for leave from the judgment dismissingthe exception to dismiss and that bearing on the authorization to amend are governed by articles 29, paragraph 1 and 511 C.C.P. I willdeal with them in turn. I Motion for Leave from the judgment dismissing the Exception to Dismiss [2] The respondents argue, quite rightly, that the generally accepted rule is that an interlocutory judgment dismissing anexception to dismiss is not subject to appeal pursuant to

article 29, paragraph 1 C.C.P. because it does not bind the judge on the merits. They say exceptions to that rule – questions relating to jurisdiction, to litispendence and to res judicata, as well as an exception dealingwith new questions relating to the public interest – are to be narrowly construed. Respondents argue accordingly that leave cannot begranted. [3] The Attorney General argues that this is an exceptional case, invoking principally res judicata.

I am of the view that there isa serious debate worth undertaking as to whether that exception applies here, and more precisely what the boundary between resjudiciata and stare decisis should be, in this connection, given the obvious relevance of R. v. Imperial Tobacco, 2011 SCC 42 ,[2011] 3 S.C.R. 45 to the present file. [4] The practical significance appears to me to be important given that one consequence of the interlocutory judgment wouldrequire the Attorney General of Canada to stay in the file until the end of the proceedings.

Even if, at the end of the day, the action inwarranty were to be dismissed and the Attorney General awarded costs, one might well say that the Attorney General suffered harm as aresult of the judgment of the Superior Court on the motion to dismiss. In this respect, the interlocutory judgment appears to have orderedthat something be done "which cannot be remedied by the final judgment" within the meaning of

article 29, paragraph 1 C.p.c. [5] Given the gravity of the question, I am of the opinion that a bench of this Court should hear the motion for leave to appealand, if it sees fit, entertain the appeal on the merits. Rather than grant the motion, risking that the bench find itself without jurisdiction, Ipropose to defer the motion to the Court. II Motion for Leave to appeal the judgment on the amendments [6] Respondents argue, quite rightly, that as a general rule, an interlocutory judgment granting authorization to amend is notsubject to appeal pursuant to

article 29, paragraph 1 C.C.P. because it does nothing that binds the judge hearing the case on the merits. They reason that leave cannot therefore be granted here. [7] The Attorney General argues that an exception must be made in this case given the necessary connection between certain ofthe amendments authorized by the judge of the Superior Court and the exception to dismiss the actions in warranty.

This strikes me as aserious possibility and justifies, to my mind, deferring the motion for leave from the judgment granting authorization to amend to thebench that will hear the motion for leave to appeal the judgment on the exception to dismiss. [8] I note further that the Attorney General of Canada agreed, before the motions judge, that proceedings in first instance shouldcontinue pending appeal. The continuation of proceedings in first instance will therefore be ordered.

[ 9 ] I would proceed with case management of the motion. The exposés of argument should treat both the motions for leave and the underlying merits although, needless to say, the Court will decide whether or not the merits should be taken in hand. [ 10 ] 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.

FOR THESE REASONS , the undersigned: [ 11 ] DEFERS the motion for leave to appeal of the interlocutory judgment of the Superior Court rendered on February 14, 2012, dismissing the exception to dismiss, to a bench of this Court; [ 12 ] DEFERS the motion for leave to appeal of the interlocutory judgment of the Superior Court rendered on February 14, 2012, granting, in part, a motion to authorize amendments, to a bench of this Court; [ 13 ] ORDERS the continuation of proceedings in first instance; [ 14 ] PLACES the case on the role of August 9, 2012 , for a 4 hours hearing (2 hours for the appellant, 2 hours for the respondents and 10 minutes for the impleaded parties, if needed); [ 15 ] ORDERS the appellant, after having served a copy upon the respondents, to file in the office of the Court, no later than May 31, 2012 , four copies of a written argument not exceeding 30 pages , of the exhibits that would normally have made up schedules I, II and III of his factum and of his authorities; [ 16 ] ORDERS the respondents, after having served a copy upon the appellant, to file in the office of the Court, no later than June 14, 2012 , four copies of a written argument not exceeding 30 pages , of their supplementary documents and of their authorities; [ 17 ] ALLOWS the impleaded parties, if needed, to file in the office of the Court, no later than June 14, 2012 , four copies of a written argument not exceeding 5 pages , of their supplementary documents and of their authorities; [ 18 ] 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; [ 19 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 20 ] COSTS to follow suit.

NICHOLAS KASIRER, J.A.