2016 QCCA 495, 2016 QCCA 495

MSG Lac Mirabel, s.e.c. c. 7857977 Canada inc. 2016 QCCA 495 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025670-159 (500-17-076681-132) DATE: March 21, 2016 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. ROBERT M. MAINVILLE, J.A. ÉTIENNE PARENT, J.A. MSG LAC MIRABEL, s.e.c. MSREF VI LAC MIRABEL TRUST GORDON MIRABEL TRUSTEE LTD. 9139-5376 QUÉBEC INC. SHELDON GORDON APPELLANTS - Defendants v. 7857977 CANADA INC. RESPONDENT - Plaintiff and 9252-8462 QUÉBEC INC. RAYMOND JUNIOR COURTEMANCHE DANIEL PROULX LA CITÉ DE MIRABEL INC.

CITÉ DES AFFAIRES DE MIRABEL IMPLEADED PARTIES - Defendants JUDGMENT [ 1 ] This is an appeal pursuant to leave granted by a judge of this Court [1] from a judgment of the Superior Court, District of Montreal rendered on September 25, 2015 by the Honourable Madam Justice Hélène LeBel that dismissed a motion pursuant to

article 404 C.C.P . [2] relating to one of the named defendants, Sheldon Gordon.

The conclusions of the motion are as follows: GRANTING the present motion; AUTHORIZING that the testimony of Sheldon Gordon to be taken out of court, on such date, time and place as the parties shall agree, before an official court stenographer and videographer from the firm of StenoFac Inc.; DIRECTING that the transcript of Sheldon Gordon's testimony and a video representation thereof, stored on an appropriate medium, such as a USB key or CD-ROM, be filed into the record of this case for use at trial; DIRECTING that all objections, save those raising issues of solicitor-client privilege or litigation privilege be taken under reserve, said objections to be adjudicated by the trial judge and that Sheldon Gordon respond to questions objected to under reserve.

THE WHOLE without costs, save in the event of contestation, in which event, with costs. [ 2 ] The facts that are relevant to this appeal may be summarized succinctly. [ 3 ] The parties are involved in litigation arising out of a failed real estate transaction. The respondents, plaintiffs in the Superior

Court, are claiming damages of $55,865,934.51 solidarily against the appellants. Mr. Gordon is one of the major actors in the sequence of events giving rise to the claim, and it is apparent that his testimony will be crucial in resolving the litigation. [ 4 ] Mr. Gordon was born in Chicago on […], 1928, which makes him 87 years old. He lives now in the United States.

Independently of the admissibility of any opinions in the record as to the current state of his health or his life expectancy, it is not disputed that his previous medical history includes atrial fibrillation with bradycardia (i.e. slowness of heartbeat), bladder cancer, thyroid cancer, coronary artery stent, prostate cancer with radiation therapy and sleep apnea, all of which are stable. [ 5 ] Between August of 2014 and March of 2015, he was seen by his treating physician for subscapular tenderness and back pain, an acute episode of gout, lumbar spine tenderness and sciatica, and he was referred to specialists in cardiology, urology and podiatry.

As of April 2015, he held prescriptions for seven medications to be taken daily, one to be taken twice daily, one to be taken as directed, and one to be taken as needed. [ 6 ] Insofar as the motion based on

article 404 C.C.P. is concerned, the motion judge was of the view, based on Mr. Gordon's examination on affidavit and the relevant medical records, that he seemed to be in good health and leading a normal, active life. She characterized the need for him to testify as inevitable, and emphasized the importance of his credibility that the eventual trial judge would have to assess. She concluded that Mr.

Gordon's health problems did not establish that there was a risk they would prevent him from testifying before the trial judge. [ 7 ] The relief available under art. 404 C.C.P. is exceptional, and the general principle is certainly that witnesses should testify before the trial judge. [ 8 ] A witness' health or advanced age can give rise to such a motion being granted. [3] So too can the perceived delay before which the trial will take place. [4] In this case, whatever that delay may be is a matter of speculation, since the trial date has not been established.

More recently, a motion judge authorized an examination pursuant to art. 404 C.C.P . in a case involving an 85 year-old person with renal and cardiac problems as well as anaemia whose health the judge considered precarious. [5] The trial was to take place one year later. In granting the motion, the judge specified that the testimony out of court would be recorded, but that either party could require the presence of the witness before the trial judge if he was able to do so. The relevant paragraph in the conclusion of the judgment was as follows: Cet interrogatoire fera

partie du dossier de la Cour, mais l'une ou l'autre des parties pourra requérir la présence comme témoin de l'intervenant à la cour lors du procès, s'il est apte à le faire, mais cela sans conséquence quant à la recevabilité de l'interrogatoire déjà tenu . [ 9 ] Without impugning the motion judge's assessment of the evidence, it being noted she did not have Mr.

Gordon testify before her, the Court is of the view that in a case such as this one, an assessment of the entirety of the circumstances must be considered, in addition to those relating to his health at the time the motion was heard. [ 10 ] It is all well and good to conclude that the evidence before the motion judge did not establish that Mr. Gordon would be unavailable to testify at trial, whenever that may be. Without being maudlin, however, the Court can surely take judicial notice that his current life expectancy is at the low end of the scale.

The impact on the outcome of the case would be devastating, however, if it turns out the motion judge was wrong in her assessment and his testimony in chief was unavailable to the trial judge because of his death prior to trial. [ 11 ] Mr. Gordon is not only a defendant but from what the Court was told he is the principal witness for all the defendants.

The outcome of the case at trial may well hinge on his testimony. [ 12 ] It would be an unfair burden to impose on his eventual estate if judgment were to be rendered on the merits maintaining the respondents' action without the trial judge having had the opportunity to see him testify, at least by means of a video recording.

Since the ability of the defendants to present their case seems to be largely based on his testimony, an interim measure of the type seen in Droit de la famille — 13278 [6] provides a means to secure his testimony against the possibility he might not be alive at the time of the trial, while at the same time preserving his obligation to testify at the time of the trial if he is able to do so. [ 13 ] At the hearing, the Court asked counsel for both parties to submit draft orders in the nature referred to in paragraph [8] in the event it came to such a conclusion after having reserved judgment.

The Court has considered their proposed orders, the result of which appears below. The appeal will be allowed in part, the judgment of the Superior Court set aside, and the order that follows entered. [ 14 ] The appellants' motion for leave to appeal the dismissal of the motion pursuant to art. 398.1 C.C.P ., which dealt with a motion to introduce testimony of Mr. Gordon when he was examined on his affidavit to which an objection had been taken, has become moot as the Court has taken no account of his answer. The motion will therefore be struck.

FOR THESE REASONS, THE COURT: [ 15 ] ALLOWS the appeal in part, without legal costs; [ 16 ] SETS ASIDE the judgment of the Superior Court; [ 17 ] GRANTS the appellants' motion pursuant to

article 404 C.C.P. to the extent referred to hereafter, with legal costs in the Superior Court to follow suit; [ 18 ] RETURNS the file to the Superior Court; [ 19 ] DIRECTS the Associate Chief Justice to appoint a case-management judge pursuant to

article 157 C.C.P .; [7]

[ 20 ] DIRECTS the case-management judge so named: (1) to determine the date, time and place of the conduct, for trial, of the examination-in-chief, cross-examination and re-examination of the defendant Sheldon Gordon, for the duration indicated by the parties in their Joint Declaration of Readiness for Trial; (2) to preside at the said proceedings; (3) to determine all other related aspects of the said proceedings, including all those concerning stenography and the manner of the video recording of the testimony; (4) to adjudicate all objections raised during the said proceedings as if the said judge was the trial judge; (5) to adjudicate any other application the parties may have concerning the conduct of the trial; and, (6) to issue any orders that may be appropriate concerning the costs associated with any of the foregoing; [ 21 ] ORDERS that the transcript and the video-recording of the foregoing be filed in the record of the Superior Court as if it had been conducted during the trial of the action; [ 22 ] ORDERS Sheldon Gordon, notwithstanding the foregoing, to be present when the trial takes place, to be examined and cross- examined as a witness as if the conduct of the examinations mentioned above had never occurred, subject to any application that may be made that he be exempted from testifying at trial by reason of his illness or disability; [ 23 ] STRIKES the motion for leave to appeal the judgment dismissing the appellants' motion pursuant to

article 398.1 C.C.P . [8] as being moot. ALLAN R. HILTON, J.A. ROBERT M. MAINVILLE, J.A. ÉTIENNE PARENT, J.A. Mtre Marc-André Boutin Mtre Pierre-Luc Cloutier Davies Ward Phillips & Vineberg For the appellants Mtre Ronald H. Levy De Grandpré Chait For the respondent Date of hearing: February 26, 2016