2013 QCCA 877, 2013 QCCA 877

Cree Nation of Mistissini c. Baie-James (Municipalité de) 2013 QCCA 877 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023518-137 (500-22-162064-094) DATE: MAY 14, 2013 PRESIDING: THE HONOURABLE MARIE-FRANCE BICH, J.A. CREE NATION OF MISTISSINI PETITIONER – defendant and THE GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) PETITIONER – impleaded party v. MUNICIPALITÉ DE BAIE-JAMES RESPONDENT – plaintiff JUDGMENT [ 1 ] The petitioners are being sued by the respondent for unpaid municipal taxes in the amount of $1,148.93 (years 2007, 2008 and 2009).

The action (which is said to be a “test case”) is moving slowly, the 180-day time limit prescribed by art. 110.1 C.C.P. having been extended on seven occasions already (the last extension was granted after the judgment discussed herein). The petitioners have yet to file their defence. [ 2 ] On February 1 st , 2013, the petitioners filed a motion seeking the suspension of the action for one year. They explained that an “Agreement on Governance” was signed by the Crees of Eeyou Istchee and the Government of Quebec in July 2012.

This agreement provides, among other things, for the replacement of the respondent by a new entity (the “Regional Government”), which might well decide to discontinue the action or to settle it amicably. [ 3 ] The respondent opposed the motion. [ 4 ] By interlocutory judgment dated February 11, 2013, the Court of Quebec, Civil Division (the Honourable Judge Jacques Paquet), dismissed the petitioners' motion to suspend the action. The petitioners now seek leave to appeal this judgment. [ 5 ] Their argument is summarized in the few following paragraphs of their motion for leave to appeal : 108.

Given the upcoming dissolution of the MBJ and its replacement by the Regional Government, the issues raised in the present proceedings should be addressed by the Regional Government, which will ultimately decide whether the present proceedings should be pursued as to discontinued (sic) ; 109. Since the composition of the new Regional Government is significantly different from the composition of the MBJ, one cannot assume that the position of the Regional Government with respect to the present proceedings will be the same as that taken by the MBJ; 114.

Finally, the suspension of the present proceedings will not cause any prejudice to the MBJ, as the Regional Government, upon it creation, will become the party replacing the MBJ in the present proceedings; 117. If the present leave to appeal is not granted, the parties will incur significant costs in the execution of the Agreement as to the Conduct of the Proceedings possibly for no valid reason, since the Regional Government could ultimately decide to discontinue the present proceedings or to negotiate an out-of-court settlement thereof; 118.

If the present leave to appeal is not granted, a risk exists that the implementation of the Agreement on Governance and the creation of the Regional Government could be conducted in an atmosphere not conducive to a successful outcome; 130. If the present proceedings continue, it will require Mistissini and the GCC(EI) to file a notice to the Attorney General of Québec under

article 95 of the Code of Civil Procedure . If the present matter is heard on the merits, Mistissini and the GCC(EI) will seek to obtain a declaration of constitutional invalidity regarding Bill 40, the Act to Amend the James Bay Region Development Act .

As detailed in the present motion for leave to appeal at paragraphs 87 and following, the Act to Amend the James Bay Region Development Act modified the composition of the governing council of the MBJ, previously under the control of the Société de développement de la Baie- James whose board of directors is appointed by Québec, to a council now composed entirely of representatives of non-Aboriginal communities located outside of the territory of the MBJ;

133. If a debate on the constitutional validity of the Act to Amend the James Bay Region Development Act were to take place, the Petitioners respectfully submit that this debate, by needlessly reopening a debate that has been resolved by the negotiation and conclusion of the Agreement on Governance, poses a serious threat to the successful implementation of this Agreement. In such situation, the Petitioners would suffer irreparable harm “not susceptible or difficult tot be compensated in damages”; 138.

If the suspension of proceedings is not granted the parties will be immediately required to incur significant expenses, including the preparation of a defence and of a notice to the Attorney General of Québec pursuant to

article 95 of the Code of Civil Procedure . If the Regional Government later discontinues the present proceedings or settles the present proceedings out-of-court, such expenses will have been incurred in vain, contrary to the rule of proportionality set out in

article 4.2 of the Code of Civil Procedure ; 139. On the other hand, if the suspension is granted, and the Regional Government later takes the same position as that of the MBJ to pursue the present proceedings, the above-mentioned expenses will be incurred in due time when a debate on the issues becomes unavoidable. Moreover, a suspension of proceedings will not cause any prejudice to the MBJ as it will be entitled to the interest on the amount claimed in the final judgment; 143.

The pursuit of justice further commands that significant expenses not be incurred by the parties if there is a possibility that the debate can be avoided; [ 6 ] During the hearing, the petitioners further explained that the Agreement on Governance, by creating this new Regional Government, puts an end to a constitutional challenge regarding the management of the territory concerned by the present litigation ( Eeyou Istchee James Bay territory). A bill providing for the implementation of this agreement will be introduced shortly in the National Assembly.

If the action is not suspended, the petitioners allege that, in order to defend themselves, they will have no choice but to raise the constitutional issue that has just been put to rest by the Agreement, which could jeopardize its coming into force and be highly prejudicial to both the petitioners and the Quebec government. * * [ 7 ] The motion for leave to appeal is governed by art. 29 and 511 C.C.P. , which are applicable to interlocutory judgments. These provisions read as follows : 29.

Est également sujet à appel, conformément à l'article 511, le jugement interlocutoire de la Cour supérieure ou celui de la Cour du Québec mais, s'il s'agit de sa compétence dans les matières relatives à la jeunesse, uniquement en matière d'adoption : 1. lorsqu'il décide en

partie du litige ; 2. lorsqu'il ordonne que soit faite une chose à laquelle le jugement final ne pourra remédier ; ou 3. lorsqu'il a pour effet de retarder inutilement l'instruction du procès . Toutefois, l'interlocutoire rendu au cours de l'instruction n'est pas sujet à appel immédiat et ne peut être mis en question que sur appel du jugement final, à moins qu'il ne rejette une objection à la preuve fondée sur l'article 308 de ce code ou sur l'

article 9 de la Charte des droits et libertés de la personne (chapitre C-12 ) ou à moins qu'il ne maintienne une objection à la preuve. Est interlocutoire le jugement rendu en cours d'instance avant le jugement final. 29. An appeal also lies, in accordance with

article 511, from an interlocutory judgment of the Superior Court or the Court of Québec but, as regards youth matters, only in a matter of adoption: (1) when it in part decides the issues ; (2) when it orders the doing of anything which cannot be remedied by the final judgment; or (3) when it unnecessarily delays the trial of the suit . However, an interlocutory judgment rendered during the trial cannot be appealed immediately and it cannot be put in question except on appeal from the final judgment, unless it disallows an objection to evidence based upon

article 308 of this Code or on

section 9 of the Charter of human rights and freedoms (chapter C-12 ), or unless it allows an objection to evidence. Any judgment is interlocutory which is rendered during the suit before the final judgment.

511. L'appel d'un jugement interlocutoire n'a lieu que sur permission accordée par un juge de la Cour d'appel, lorsqu'il estime qu'il s'agit d'un cas visé à l'article 29 et que les fins de la justice requièrent d'accorder la permission ; il doit alors ordonner la continuation ou la suspension des procédures de première instance. Toutefois, l'appel du jugement interlocutoire rejetant une objection à la preuve fondée sur l'article 308 de ce code ou sur l'

article 9 de la Charte des droits et libertés de la personne (chapitre C-12 ) n'est pas assujetti à une permission. De plus, cet appel ne suspend pas l'instance, mais le juge de première instance ne peut rendre son jugement final ni entendre la preuve visée par l'objection tant que l'appel du jugement interlocutoire n'est pas décidé . L'appel d'un jugement interlocutoire est soumis aux règles applicables à un jugement final; cependant, les parties ne sont pas tenues de produire un mémoire, sauf si un juge en décide autrement.

L'appel d'un tel jugement est entendu à la date déterminée par le juge dans le cas où la permission est requise et par le greffier, dans les autres cas . [Soulignements ajoutés.] 511. An appeal lies from an interlocutory judgment only on leave granted by a judge of the Court of Appeal if he is of opinion that the case is one that is contemplated in

article 29 and that the pursuit of justice requires that leave be granted ; the judge must then order the continuation or suspension of the proceedings in first instance. However, an appeal from an interlocutory judgment dismissing an objection to evidence based on

article 308 of this Code or on

section 9 of the Charter of human rights and freedoms (chapter C-12 ) is not subject to a leave. Furthermore, the appeal does not suspend the proceedings but the judge of first instance cannot render final judgment or hear the evidence contemplated by the objection until appeal from the interlocutory judgment is decided . Appeal from an interlocutory judgment is subject to the rules applicable to a final judgment; however, the parties are not required to file a factum, unless a judge decides otherwise.

The appeal is heard on the date determined by the judge in cases where leave is required and on the date determined by the clerk in other cases . [Emphasis added.] [ 8 ] According to these provisions, as interpreted and applied by the Court, leave to appeal will be granted upon the following cumulative conditions : - The judgment is one of those listed in the first of second paragraphs of

article 29 C.C.P. ; - The pursuit of justice, according to

article 511 C.C.P. , requires that leave to appeal be granted. [ 9 ] The pursuit of justice, in and of itself, cannot justify that leave be granted if the judgment is not one of those that are subject to appeal pursuant to the first or second paragraph of

article 29 C.C.P. This was recently made very clear by a judgment of our Court, which confirmed that a motion judge cannot – that is to say, does not have jurisdiction to – grant leave when the interlocutory judgment is not one of those contemplated by

article 29 . See : Elitis Pharma inc. v. RX Job inc. [1] Conversely (and this was also reiterated by the majority and dissenting judges in Elitis Pharma ), when the judgment is appealable under

article 29, leave will be granted only if the pursuit of justice commands it. [2] [ 10 ] In light of the foregoing, I am of the view that the motion for leave to appeal must be dismissed because the interlocutory judgment of Paquet J. is not subject to appeal pursuant to

article 29 C.C.P. [ 11 ] The judgment was not rendered during the trial and, therefore, we may immediately discard the second paragraph of

article 29, which is irrelevant to the present case. [ 12 ] As far as the first paragraph of

article 29 is concerned, the judgment does not decide the issues within the meaning of subparagraph 1, i.e. decides upon the merits of the action. Neither is it a judgment which “unnecessarily delays the trial of the suit” within the meaning of subparagraph 3, quite the contrary. Is it, however, a judgment which “orders the doing of anything which cannot be remedied by the final judgment” within the meaning of subparagraph 2? [ 13 ] It is not. [ 14 ] In Elitis Pharma inc. , [3] my colleagues Rochon and Kasirer JJ.A. explained that subparagraph 2 of the first paragraph of

article 29 refers to the judgment ordering something that has “un caractère irrémédiable sur l'instance judiciaire seulement ” (para. [16] of Elitis Pharma ), entailing a “préjudice à l'instance” itself. There is not such prejudice in the present case. [ 15 ] The “ irreparable prejudice ” alleged here is that which would result from the ordinary course of proceedings and the duty to ensure in a timely manner that the case be ready for hearing. For obvious reasons, this has never been and cannot be recognized as causing an irreparable prejudice to either party.

Moreover, the fact that proceedings may be costly or might be settled out of court or be abandoned after money and efforts have been spent cannot be construed as an irreparable prejudice, since these are risks inherent to any litigation. There are a few, very restrictive exceptions to that rule, in matters of jurisdiction, res judicata or lis pendens or in the case of a new and important question of law that must be decided immediately. None of these exceptions applies here. Finally, economic, political

or strategic consequences deriving from a judgment are not relevant and cannot be considered. [ 16 ] For these reasons alone, the motion for leave to appeal should be dismissed. [ 17 ] I must add, however, that were Paquet J.'s judgment appealable pursuant to

article 29 C.C.P. , I would also have dismissed the motion. The judgment is a simple case-management decision, which rests on the vast discretionary powers of the judge. The case-law makes very clear that the Court will not interfere with such judgments, unless they are flagrantly flawed and constitute a denial of justice. This is not the case here, [4] even if I were of the view that suspension of the action might not have been inappropriate. [ 18 ] I also feel compelled to say that Paquet J.'s judgment is not binding and can be reconsidered were new facts or circumstances to emerge.

One may for instance surmise that the bill that will be introduced in the National Assembly may contain provisions that could constitute new circumstances or help solve the present matter. FOR THESE REASONS, THE UNDERSIGNED : [ 19 ] Dismisses the motion, with costs. MARIE-FRANCE BICH, J.A. Mtre François Dandonneau GOWLING LAFLEUR HENDERSON For the petitioners Mtre Yves Dulude SPIEGEL, SOHMER, INC. For the respondent Date of hearing: May 9, 2013