2015 QCCA 1647, 2015 QCCA 1647

Bouclair inc. c. Carrefour de la croisée inc. 2015 QCCA 1647 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL No: 500-09-025479-155 (500-05-072752-023) PROCÈS-VERBAL D'AUDIENCE DATE : Le 9 octobre 2015 L’HONORABLE MARK SCHRAGER, J.C.A. REQUÉRANTE AVOCATS BOUCLAIR INC. Me CARINE BOUZAGLOU Me JULIEN HYNES-GAGNÉ (Osler, Hoskin & Harcourt, S.E.N.C.R.L./s.r.l.) (Présents) INTIMÉES AVOCAT LE CARREFOUR DE LA CROISÉE INC. PROVIGO PROPERTIES LIMITED LOBLAWS SUPERMARKETS LIMITED Me ÉRIC LALANNE (De Grandpré Chait s.e.n.c.r.l.) DESCRIPTION : Requête pour permission d’appeler du jugement rendu le 29 juin 2015 par l’honorable juge, Eva Petras, de la Cour supérieure, district de Montréal

Greffier d'audience : Mihary Andrianaivo SALLE : RC-18 AUDITION 9 h 00 Suite de l’audition du 8 octobre 2015. Les parties ont été avisées que leur présence n’est pas requise. Par le Juge : Jugement – voir page 3. Mihary Andrianaivo Greffier d'audience PAR LE JUGE JUGEMENT [ 1 ] Petitioner is the defendant in an action commenced in the Superior Court, District of Montreal in 2002. [ 2 ] After a seven year lull in activity, the Respondent who was the plaintiff in the action revived it by serving an expert’s report and several proceedings with a view to joining issue and setting the file down for trial. Petitioner sought the dismissal of the action at this point pursuant to

article 54.1 C.C.P. alleging the delay of seven years to be abusive. [ 3 ] The motion was dismissed on June 29, 2015 by the Honourable Justice Eva Petras. Petitioner seeks leave to appeal from this interlocutory judgment pursuant to

article 29 C.C.P. [ 4 ] A long line of case law has established that a judgment dismissing a motion to dismiss taken under

article 54.1 C.C.P. is not subject to appeal as it does not fall within any of the situation foreseen by

article 29 C.C.P. Most recently, to such effect, I refer to Cohen & Rubin Architectes v. Costakos . [1] [ 5 ] However, leave has been granted on an exceptional basis where a new issue of law [2] or a question of jurisdiction or public order is involved. [3] I underline that such leave is exceptional, to be granted on a restrictive basis. [4] Petitioner submits that the judge erred in law in imposing a burden on Petitioner to prove Respondent’s bad faith. The judge said this: [35] Just like Justice Corriveau, the Court cannot at this stage agree that the Plaintiff’s action is clearly unfounded or frivolous.

The action itself is not dilatory and nor are the January 2015 proceedings. [36] The Plaintiffs have not indulged in vexatious or quarrelsome behaviour. [37] In order to dismiss the action pursuant to

article 54.1 C.C.P., the Court must be convinced that the Plaintiffs have acted in bad faith. The Court does not have such evidence. [38] Bad faith cannot be presumed and neither can abusiveness. The fact that there may have been a lack of diligence or negligence on the part of the Plaintiffs does not automatically result in a determination of abusive or improper proceedings, especially without bad faith. [ 6 ] I do not read that the judge required bad faith in order to arrive at a conclusion of abuse. Rather, it was mentioned as one of

several avenues potentially leading to such a finding of abuse. Moreover, the judge applied and quoted at length from this Court in Cosoltec v. Structure Laferté inc. [5] where bad faith as an element in the application of

article 54.1 C.C.P. was examined. [ 7 ] Whether the judge was correct or not, the issue here is hardly new and was indeed canvassed in the judgment of Cooperstock referred to hereinabove. [6] Specifically, dismissal for delay in prosecuting a civil action under

article 54.1 C.C.P. was reviewed in Simon c. Québec (Procureur général) , [7] where the dismissal of an action in such circumstances was confirmed in appeal. [ 8 ] I would also add that the outcome of the judgment of the lower Court can be remedied by the judgment to be rendered on the merits. This is not a case where communication of evidence was refused on discovery, a situation, which cannot be remedied by final judgment. [8] As well, to simply contend without further substantiation that the passage of time will hinder a party’s ability to prove its case is not sufficient in this case to justify the granting of leave under

article 29 C.C.P. [ 9 ] The judge observed that the Petitioner had done nothing to advance the file in first instance. Given this finding of fact, Petitioner is at least in part responsible for an adverse consequence of the abuse it alleges so that even if the case fell within

article 29 C.C.P. , the interests of justice as required under

article 511 C.C.P. would not favour the granting of leave. FOR THE FOREGOING REASONS, THE UNDERSIGNED : [ 10 ] DISMISSES the Motion for leave to appeal an interlocutory judgment with costs. MARK SCHRAGER, J.C.A.