2013 QCCA 1911, 2013 QCCA 1911

Trackcom Systems International Inc. c. Trackcom Systems Inc. 2013 QCCA 1911 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023937-139 (500-11-043229-125) DATE: NOVEMBER 11, 2013 PRESIDING: THE HONOURABLE MR. JUSTICE ALLAN R. HILTON TRACKCOM SYSTEMS INTERNATIONAL INC. KAVVERI TECHNOLOGIES INC. WILLIAM RONALD MCBRIDE CHENNA UMA REDDY ARUN NAGESH AVANDHANI PETITIONERS - Defendants v. TRACKCOM SYSTEMS INC. & AL.

PHILIP MAMBO BARBARA DZIUBA RESPONDENTS - Plaintiffs JUDGMENT [ 1 ] The petitioners seek leave to appeal a judgment of the Superior Court rendered on September 23, 2013 by the Honourable Mr. Justice Martin Castonguay that substantially granted the respondents’ application for interim orders in the context of their oppression remedy pursuant to

section 241 of the

Canada Business Corporations Act . The judgment was rendered after the motions judge heard five days of evidence and argument. [ 2 ] Apart from disputing the correctness of the outcome as a matter of law, the petitioners allege in their motion that the hearing was affected by several irregularities that they attribute to the manner the evidence was led, which they contend precluded them from making a full answer and defence to the claim.

The motions judge acknowledged in his reasons that the proof in some respects was a moving target, and that the parties had led evidence that was substantial for the purpose of interim relief, but fragmentary for the purpose of the merits. He added that the petitioners claimed, "à juste titre", that they had been unprepared for so radical a transformation of the hearing.

That being said, the motions judge observed that he would consider the respondents' ongoing amendments to the extent they did not change the nature of the interim recourse and the issues to be determined as they had been previously established by the co- ordinating judge of the Commercial Division. [ 3 ] Without expressing an opinion on the propriety of this approach, as well as the other grievances the petitioners allege relating to the conduct of the proceedings, in my opinion they are sufficiently serious to warrant a hearing in this Court. [ 4 ] As the interim orders were rendered executory notwithstanding appeal, and include many that require the transfer of funds and the disbursement of significant sums prior to a hearing on the merits in the Superior Court, it is only appropriate that they be suspended during the conduct of the appeal.

FOR THESE REASONS, THE UNDERSIGNED: [ 5 ] GRANTS leave to appeal the judgment of the Superior Court rendered on September 23, 2013 by the Honourable Mr.

Justice Martin Castonguay; [ 6 ] SUSPENDS the execution of the orders and conclusions of the judgment therein contained; [ 7 ] PLACES the case on the role of March 21, 2014, for a 90-minute hearing, at the Maxwell Cohen Moot Courtroom at the Faculty of Law of McGill University; [ 8 ] ORDERS the appellants, after having served a copy upon the respondents, to file in the office of the Court, no later than December 16, 2013 , five copies of a written argument not exceeding 25 pages , of the exhibits that would normally have made up

Schedules I, II and III of their factum and of their authorities; [ 9 ] ORDERS the respondents, after having served a copy upon the appellants, to file in the office of the Court, no later than January 27, 2014 , five copies of a written argument not exceeding 25 pages , of their supplementary documents and of their authorities; [ 10 ] 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, the use of the font ARIAL-12 being strongly recommended; [ 11 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents.

ALLAN R. HILTON, J.A. Mtre Pierre Y. Lefebvre Mtre Vincent Cérat Lagana FASKEN MARTINEAU DUMOULIN For the petitioners Mtre Ari Yan Sorek DENTONS CANADA For the respondents Date of hearing: October 18, 2013