2023 QCCA 253, 2023 QCCA 253

Wang c. CST Consultants inc. 2023 QCCA 253 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030325-229 (500-06-000932-182) DATE: February 21, 2023 BEFORE THE HONOURABLE MARK SCHRAGER, J.A. QING WANG APPLICANT – Representative Plaintiff v. C.S.T. CONSULTANTS INC. CANADIAN SCHOLARSHIP TRUST FOUNDATION KALEIDO FOUNDATION, personally and in continuance of proceedings for UNIVERSITAS FOUNDATION OF CANADA KALEIDO GROWTH INC., personally and in continuance of proceedings for UNIVERSITAS MANAGEMENT INC. HERITAGE EDUCATIONAL FOUNDATION CHILDREN’S EDUCATION FUNDS INC.

CHILDREN’S EDUCATIONAL FOUNDATION OF CANADA KNOWLEDGE FIRST FINANCIAL INC. personally and in continuance of proceedings for HERITAGE EDUCATION FUNDS INC. KNOWLEDGE FIRST FOUNDATION GLOBAL RESP CORPORATION GLOBAL EDUCATIONAL TRUST FOUNDATION RESPONDENTS – Defendants JUDGMENT [ 1 ] The Applicant seeks leave to appeal from two judgments of the Superior Court, District of Montreal (the Honourable Thomas M. Davis), rendered on November, 14 and December 1, 2022, respectively.

These are both judgments in the course of a proceeding of an authorized class action against issuers of education savings plans. [ 2 ] The November judgment authorizes the pretrial examination of representatives of the Autorité des marchés financiers (“ AMF ”), the Ontario Securities Commission (“ OSC ”) and the Canadian Securities Administrator (“ CSA ”) on three areas:

i) The criteria for a prospectus to be considered acceptable for filing; ii) The mechanism under the national passport system, which, together with Regulation 41-101 respecting General Prospectus Requirements results from the CSA’s efforts to harmonize the prospectus requirements across the country; and iii) The evolution of the internal rules and policies by the AMF and the OSC in receipting the Defendant’s prospectus. [ 3 ] The Applicant maintains that the proposed examinations of the security regulators allow their testimony on questions of law which is inadmissible. [ 4 ] The December judgment dismisses the Applicant’s objection to communicating on discovery various documents in relation to the opening by him of Registered Education Savings Plans (“ RESP ”) including, bank statements of these RESP accounts.

The latter are the focus of the Applicant’s objection based on concerns of confidentiality and privacy. [ 5 ] Leave to appeal the November judgment is governed by

article 32 C.C.P. since the examination pertains to pretrial discovery. [1] As such, leave can only be granted where, in addition to the criteria of

article 31 C.C.P. , the judgment is “unreasonable in light of the guiding principles of procedure”. The Applicant argues that the judgment causes irreparable harm since the testimony of the regulators will be inadmissible as pertaining to questions of law. Also, the Applicant submits that the examination of a security regulator raises considerations affecting parties other than those in this case. [ 6 ] I disagree. The admissibility of any of the evidence to be given in response to questions is yet to be decided and there is nothing unreasonable in the authorization to examine these parties whether or not there are ramifications beyond the present case. In authorizing

the examinations, the judge identifies factual elements such as practices and procedures, some unwritten. [ 7 ] I disagree with Applicant that the Court’s decision in Amaya [2] establishes that an order of document disclosure (or here deposition) constitutes irreparable harm under

article 31 C.C.P. opening the door to the granting of leave to appeal. In Amaya , the Court identified a specific question of law – i.e. the availability of the document discovery sought prior to authorization of a class action under the Quebec Securities Act . [3] The present case involves discovery after authorization of the class action which responds to the normal procedures of discovery in the C.C.P. The judge exercised his discretion in that framework. There is nothing unreasonable within the meaning of

article 32 C.C.P. in the exercise by him of that discretion. [ 8 ] In the December judgment dismissing the objection to the communication of documents the judge states that the bank statements “may assist in the determination of whether the CST [Consultants inc.] contract is abusive”. [4] Judgments dismissing objections are generally not appealable as not binding on the trial judge. The issue of the confidentiality of the Applicant’s banking records does not open the door to leave to appeal.

It does not appear in the context of this case that these statements would be confidential or that any confidentiality would not have been implicitly renounced. However, if there is a legitimate issue of confidentiality competing with the relevance of such documents (on which I do not rule or venture an opinion), this can be appropriately dealt with before the court below. The admissibility of the documents is ultimately an issue for the merits so that any prejudice is not irreparable and the applicable criterion for leave under

article 31 C.C.P. is not satisfied. [ 9 ] Accordingly, leave to appeal the two judgments will not be granted. FOR THE FOREGOING REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the application for leave to appeal from judgments rendered in the course of a proceeding, with legal costs. MARK SCHRAGER, J.A. Mtre Joey Zukran LPC AVOCAT Mtre Jean El Masri EL MASRI AVOCAT For Qing Wang Mtre Stéphane Pitre Mtre Anne Merminod BORDEN LADNER GERVAIS For C.S.T.

Consultants inc. and Canadian Scholarship Trust Foundation Mtre Vincent De L’Étoile Mtre Antoine Veillette LANGLOIS AVOCATS Mtre Mia Malone KALEIDO CROISSANCE For Kaleido Foundation, personally and in continuance of proceedings for Universitas Foundation of Canada and Kaleido Growth Inc., personally and in continuance of proceedings for Universitas Management Inc.

Mtre Julie-Martine Loranger Mtre Gabriel Querry Mtre Kevin Pinkoski MCCARTHY TÉTRAULT For Heritage Educational Foundation, Children’s Education Funds Inc., Children’s Educational Foundation of Canada, Knowledge First Financial Inc., personally and in continuance of proceedings for Heritage Education Funds Inc. and Knowledge First Foundation Mtre Ana-Maria Nicolau DENTONS CANADA For Global RESP Corporation and Global Educational Trust Foundation Date of hearing: February 17, 2023