2018 QCCA 1329, 2018 QCCA 1329

Charles c. Boiron Canada inc. 2018 QCCA 1329 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027522-184 (500-06-000609-129) MINUTES OF THE HEARING DATE: August 15 2018 THE HONOURABLE mark schrager, J.A. PETITIONER COUNSEL adanna charles Mtre JeffREY orenstein Mtre andrea grass ( Groupe de droits des consommateurs inc. ) RESPONDENT COUNSEL boiron canada inc. Mtre marie-louise delisle Mtre marie-pier cloutier ( Woods s.e.n.c.r.l. ) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on April 3 2018 by the Honourable Suzanne Courchesne of the Superior Court, District of Montreal Clerk: Elisabeth Lepage Courtroom: RC-18

HEARING 10:49 Commencement of the hearing. Identification of counsel. Submission by Mtre Orenstein. 10 h 54 Submission by Mtre Delisle. 10 h 55 Exchange between the court and Mtre Delisle. 11 h 07 Suspension. 11 h 35 Resumption. BY THE JUDGE: The motion is granted. See judgment page 3. 11 h 37 Conclusion of the hearing. (

s) Elisabeth Lepage Clerk BY THE JUDGE JUDGMENT [ 1 ] Applicant seeks leave to appeal the judgment rendered on April 3, 2018 by the Superior Court, District of Montreal (the Honourable Suzanne Courchesne), which dismissed Applicant’s application to amend her class action proceedings to add three plaintiffs/representatives. [ 2 ] The class action had previously been authorized but certain answers given by the class representative during the examination on discovery were the cause of concern; it was feared that her factual situation might not be satisfied so that Applicant sought to add three class representatives by way of amendment to the proceedings. [ 3 ] The refusal of the amendment could potentially affect the substantive rights of the class so that I do not consider the judgment as a case management measure. [1] Accordingly,

Article 31 C.C.P. applies to the leave application and in the circumstances there is a prejudice not susceptible of remedy if the three proposed representatives are not made parties to the proceedings in the lower court. Overall, the question raised merits the attention of the Court of Appeal. [ 4 ] Seeing the agreement of counsel, it is not necessary to order the suspension of the proceedings in first instance.

FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 5 ] GRANTS the Application for leave to appeal from the judgment rendered in the course of proceedings; [ 6 ] GRANTS leave to appeal from a judgment rendered on April 3, 2018 by the Superior Court, District of Montreal (the Honourable Suzanne Courchesne); [ 7 ] DECLARES that the appeal proceed by way of Memorandum; [ 8 ] ORDERS the Applicant, after having notified a copy upon the respondent, to file in the Office of the Court, no later than October 15 2018, five copies of a written argument not exceeding 15 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 9 ] ORDERS the Respondent, after having notified a copy upon the appellant, to file in the Office of the Court, no later than November 30 2018 , five copies of a written argument not exceeding 15 pages and of its supplementary documents; [ 10 ] DIRECTS the parties’ attention to

section 376 C.C.P . and

article 55 of the Civil Practice Regulation , which read as follows:

376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 11 ] REFERS the file to the Master of the Rolls to determine the date of a hearing of (60) minutes in duration (30 minutes each) ; [ 12 ] DIRECTS the parties’ attention to the Practice Direction G-3 of May 20, 2016, encouraging the filing with their paper version documents a technologic version that must be in PDF or Word format to enable key-word search and stored on a CD/DVD-ROM or USB-key; [ 13 ] THE WHOLE , legal costs to follow the outcome of the appeal. mark schrager, J.A.