2020 QCCA 1251, 2020 QCCA 1251

Delisle c. Almaviva Santé 2020 QCCA 1251 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-09-029099-207 ( 500-11-057991-206 ) PROCÈS-VERBAL D'AUDIENCE DATE : Le 29 septembre 2020 L’HONORABLE PATRICK HEALY, J.C.A. PARTIES REQUÉRANTES AVOCAT Marc Delisle monique joannette philip waters antonina cammisano Me Louis Samuel ( De Grandpré Chait ) Par visioconférence PARTIES INTIMÉES AVOCATS ALMAVIVA SANTÉ SAS 9374-3771 QUÉBEC INC. Me JOSEPH-ANAËL LEMIEUX ( Davies Ward Phillips & Vineberg ) Par visioconférence MICHEL CLAIR, en sa qualité de fiduciaire de la fiducie des employés et partenaires almaviva Me PAUL LEFEBVRE ( Guernon Avocats ) Par visioconférence

alexandre jarry, en sa qualité de fiduciaire de la fiducie michel sicotte, en sa qualité de fiduciaire de la fiducie bonne santé 2017 act holding b.v. Alnoor manji, en sa qualité de fiduciaire de la fiducie moonraker pierre-luc girard, en sa qualité de fiduciaire de la fiducie soixante et onze 173476 canada inc. 9125-8863 québec inc. s.l.s. consultants inc. act invest private ltd. 9644709 canada inc. gestion soixante et onze inc.

Me BENOÎT LAPOINTE Me MÉLISSA BAZIN ( Belleau Lapointe ) Par visioconférence PARTIES MISES EN CAUSE AVOCATS SAMIR BEKHECHI, ès qualités de fiduciaire de la FIDUCIE SAMA SAMIR BEKHECHI M.D. INC. Me Louis Samuel ( De Grandpré Chait ) Par visioconférence MICHEL CLAIR Me PAUL LEFEBVRE ( Guernon Avocats ) Par visioconférence Almaviva Santé Canada inc. ABSENT ET NON REPRÉSENTÉ SOCIÉTÉ DE GESTION INFOMÉDIC INC.

FERNAND TARAS, en sa qualité de fiduciaire de la fiducie richmond Me JEAN-FRANÇOIS TOWNER ( Jeansonne, Avocats ) Par visioconférence DESCRIPTION : Requête pour permission d’appeler d’un jugement rendu le 10 juillet 2020 par l’honorable David R. Collier de la Cour supérieure , district de Montréal ( Art. 30 (4) et 31 C.p.c .). Greffière-audiencière : Mélanie Camiré Salle : RC-18

AUDITION 10 h 44 Identification du dossier et des avocats. Remarques préliminaires. 10 h 45 Argumentation de Me Samuel. 10 h 57 Argumentation de Me Towner. 10 h 58 Argumentation de Me Lapointe. 11 h 11 Argumentation de Me Lefebvre. 11 h 15 Argumentation de Me Samuel. 11 h 21 PAR LE JUGE : Jugement sera rendu sur procès-verbal ce jour. Fin de l’audience.

Mélanie Camiré, Greffière-audiencière JUGEMENT [ 1 ] The petitioners seek leave to appeal against a judgment of the Superior Court, District of Montreal, [1] that dismissed their voluntary intervention [2] in an action concerning a bid for a hostile take-over. [ 2 ] For convenience I will say that the principal action is between two plaintiffs, whom I will designate collectively as “P,” and fifteen defendants whom I will designate collectively as “D.” I will designate the petitioners collectively as “I.” Context [ 3 ] One of the defendants is a company that has a subsidiary in Canada.

The dispute in the principal action is whether “P” or “D” has a right of first refusal to purchase shares in the subsidiary following an offer to purchase by a third party. Associated with the subsidiary is a trust that owns shares in the subsidiary. The “I” are beneficiaries of that trust.

By their intervention the “I” seek to prevent a hostile take-over of the subsidiary and they claim that they have a right to first refusal with respect to the purchase of shares in the subsidiary. [ 4 ] The Superior Court dismissed the “I”’s declaration of intervention on the grounds that they do not have sufficient interest in the question disputed between “P” and “D” and that their complaints as trustees with regard to another trustee are too removed from the dispute between “P” and “D.” [ 5 ] The “I” each received 150 Class A shares in the subsidiary following a resolution dated 29 May 2018 but those shares remain registered in the name of the trust.

In their statement of claim the “P” seek an interim order to block any transfer of shares in the subsidiary until final judgment between “P” and “D.” They also seek an order concerning shares in the subsidiary held by minority shareholders upon which an offer for purchase was received from a third party. [ 6 ] By virtue of an agreement among shareholders in the subsidiary, the remaining shareholders, including the “I,” had a right of first refusal concerning the offer to purchase made by the third party.

Given that the shares in the subsidiary held by “I” were registered in the name of the trust, they were not informed of the offer to purchase that was made by the third party and thus they were unable to exercise a right of first refusal that they claim against the “D” with respect to that offer. [ 7 ] The “I” claim that their interest in this matter is inextricably linked with that of “P” and that their claim rests on the same legal and factual foundation.

Accordingly, they argue that their claim should be heard and determined in the same proceeding as the action between “P” and “D.” Discussion [ 8 ] Whether a voluntary intervention should be approved is ultimately a matter of discretion that depends on the apparent degree of proximity between the intervener’s claim and the issues between the parties to an action and the guiding principles of procedure.

The case for allowing an intervention increases to the degree that it would enhance the possibility of a common solution to common concerns and minimise the risk of needless prolongation or proliferation of litigation and even the risk of conflicting judgments. [ 9 ] The Superior Court sought to restrict the scope of the action between “P” and “D” and presumably did so in large measure to

ensure a measure of proportionality in this litigation. Conversely, the “I” have a plausible claim that they have interests that are engaged by this litigation and that they should be heard before the action is resolved at trial.

There is in the circumstances of this case a risk of prejudice to the “I.” As has been noted by various judges of the Court, sitting in chambers, such a risk is sufficient to justify granting leave to appeal even in the absence of a question of general principle. [3] Whether that claim is sound is a matter that should be resolved by a panel of the Court. [ 10 ] FOR THIS REASON I : [ 11 ] GRANTS the motion for leave to appeal; [ 12 ] GRANTS leave to appeal; [ 13 ] ORDERS the appellants, after having served a copy upon the respondents and the impleaded parties, to file in the office of the Court, no later than 45 days of the present judgment, five copies of a written argument of a total of 12 pages for all of the appellants, of the documents that would normally have made up schedules I, II and III of their factum and of their authorities; [ 14 ] ORDERS the respondents, after having served a copy upon the appellants and the impleaded parties, to file in the office of the Court, no later than 45 days after the filing of the appellants’ argument, five copies of a written argument of a total of 12 pages for all of the respondents, of their supplementary documents and of their authorities; [ 15 ] ORDERS the impleaded parties, after having served a copy upon the appellants and the respondents, to file in the office of the Court, no later than 20 days after the filing of the respondents’ argument, five copies of a written argument of a total of 10 pages for all of the impleaded parties, of their supplementary documents and of their authorities; [ 16 ] DEFERS the file to the Master of the Rolls to determine the date of a hearing of 75 minutes in duration (30 minutes in total for the appellants, 30 minutes in total for the respondents and 15 minutes in total for the impleaded parties). [ 17 ] COSTS to follow.

PATRICK HEALY, J.C.A.