2012 QCCA 1190, 2012 QCCA 1190

Simon c. Québec (Procureur général) 2012 QCCA 1190 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022696-124 ( 700-05-001056-948 ) MINUTES OF THE HEARING DATE: June 22, 2012 THE HONOURABLE ALLAN R. HILTON , J.A. PETITIONERS ATTORNEY SERGE SIMON ANGELA BARTH KEEGAN SIMON JACEY SIMON Mtre Stephen Ashkenazy (ABSENT) Hamilton Cooper Ashkenazy RESPONDENT ATTORNEYS LE PROCUREUR GÉNÉRAL DU QUÉBEC Mtre Alexandre Duval (ABSENT) Mtre Lizann Demers (ABSENT) BERNARD ROY (Justice-Québec) MIS EN CAUSE ATTORNEY MOHAWK COUNCIL OF KANESATAKE BRADLEY, GABRIEL ET AL LE MINISTRE DE LA SÉCURITÉ PUBLIQUE Mtre Kurt Johnson (ABSENT) Irving Mitchell Kalichman sencrl/llp

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON APRIL 20, 2012 BY THE HONOURABLE MADAM JUSTICE GENEVIÈVE MARCOTTE OF THE SUPERIOR COURT IN THE DISTRICT OF TERREBONNE. Clerk: Annick Nguyen Court Room: ——- HEARING Continuation of June 20, 2012, hearing. Counsel are advised that judgment will be rendered on the minutes of the hearing and their presence in Court is not required. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] The petitioners seek leave to appeal a judgment of the Superior Court that granted a motion of two of the defendants, the Attorney General of Quebec and the Minister of Public Security, to dismiss their action based on non-prosecution over several years. [1] The facts giving rise to the applicants' claim in damages occurred in 1994 in the context of what is commonly referred to as the Oka Crisis. [ 2 ] After fruitless attempts to arrange a pre-trial conference since August of 2005, the co-ordinating judge of the District of Terrebonne struck the inscription and the certificate of readiness in March of 2007, citing the petitioners lack of interest. [2] Nothing further happened in the file until the presentation of the motion to dismiss, which was based on

article 54.1 C.C.P., and alleged non-prosecution since the inscription and the certificate of readiness were struck.

It was further alleged that the petitioners' action be declared "abusif" ("improper" in English) on that basis, and accordingly dismissed. [ 3 ] After the service of the motion to dismiss, the petitioners' reinscribed the case and filed a new declaration of readiness. [ 4 ] In granting the motion, the Superior Court judge rejected the petitioners' argument that it would have first been necessary to proceed by way of a motion in peremption of suit pursuant to articles 268 and 269 C.C.P . [3] Her conclusion in that respect, however, differed from that of two of her colleagues in Garneau v.

Chaumière Juchereau-Duchesnay inc. [4] and Kaycan Ltd. V. Pella Corporation . [5] In another judgment, Feldman v. RBC Dominion valeurs mobilières inc. , the Superior Court dismissed two related actions based, amongst

other reasons, on

article 54.1 C.C.P ., and found that in any event peremption applied. In one file no proceeding, useful or otherwise, had been produced since the service of the motion to dismiss, and in the other file, the proceeding that was filed was deemed not to be "useful" for the purpose of

article 269 C.C.P . [6] [ 5 ] In light of the jurisprudential controversy existing on this subject in the Superior Court, leave to appeal should be granted. The other grounds asserted in the amended motion for leave to appeal might not, in and of themselves, have justified leave being granted, but in my view the panel of the Court hearing the appeal will be in the best position to determine the extent to which they warrant consideration.

I will therefore authorize all grounds of appeal alleged in paragraph 6 of the amended motion to be argued. [ 6 ] Since the judgment appealed from did not dismiss the action insofar as the other defendants to the action are concerned, it is appropriate that I order the continuation of the proceedings against them in the Superior Court. [ 7 ] Given articles 26 and 494 C.C.P. ; [ 8 ] Given that the appeal should proceed on the basis of the fast track procedure pursuant to rule 50 of the Rules of the Court of Appeal in Civil Matters, which reads as follows: 50. Standard or fast track procedure.

When granting leave to appeal from a final judgment, the Judge or the Court determines whether the appeal will proceed on the basis of the standard procedure or the fast track procedure. [ 9 ] Given rules 54 and 55 of the Rules of the Court of Appeal in Civil Matters , which read as follows: 54. Abandonment . Where the appellant’s argument and documents standing in lieu of appellant's factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandi . 55. Foreclosure . Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedur e shall apply, mutatis mutand i.

THEREFORE, THE UNDERSIGNED: [ 10 ] GRANTS leave to appeal; [ 11 ] ORDERS the continuation of proceedings in the Superior Court against the other defendants to the petitioners' action; [ 12 ] PLACES the case on the role of November 30, 2012, at 9:30 am, in court room Pierre-Basile-Mignault, for a 60 minutes hearing; [ 13 ] ORDERS the appellants, after having served a copy upon the respondent, to file in the office of the Court, no later than August 31, 2012 , four copies of a written argument not exceeding 10 pages , of the exhibits that would normally have made up schedules I, II and III of their factum and of their authorities; [ 14 ] ORDERS the respondent, after having served a copy upon the appellants, to file in the office of the Court, no later than October 26, 2012 , four copies of a written argument not exceeding 10 pages , of his supplementary documents and of his authorities; [ 15 ] 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; [ 16 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 17 ] Costs to follow.

ALLAN R. HILTON, J.A.