2012 QCCA 2017, 2012 QCCA 2017

Canada (Attorney General) c. JTI-MacDonald Corp. 2012 QCCA 2017 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022723-126 (500-06-000070-983 and 500-06-000076-980) DATE: November 13, 2012 PRESIDING : THE HONOURABLE ALLAN R. HILTON, J.A. ATTORNEY GENERAL OF CANADA PETITIONER – Defendant in warranty v. JTI-MACDONALD CORP. IMPERIAL TOBACCO LIMITED ROTHMANS, BENSON & HEDGES INC.

RESPONDENTS – Defendants/Plaintiffs in warranty and CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ JEAN-YVES BLAIS (500-06-000076-980) and CÉCILIA LÉTOURNEAU (500-06-000070-083) IMPLEADED PARTIES – Plaintiffs JUDGMENT [ 1 ] The Attorney General of Canada seeks leave to appeal the judgment of the Superior Court (the Honourable Mr. Justice Brian J. Riordan) rendered on May 1, 2012 that substantially granted a motion of the three respondents dated March 2, 2012 to strike an expert report prepared on the petitioner's behalf by David M. Burns.

The motion to strike arises in the context of actions in warranty brought by the respondents against the petitioner in the two class actions proceedings in which the three impleaded parties are the plaintiffs. [ 2 ] The motion to strike was served prior to the commencement of the trial of the principal actions, but the judgment of Riordan, J. was rendered during the trial. [ 3 ] For the purposes of its motion for leave to appeal based on articles 29 and 511 C.C.P ., however, the petitioner argues that the judgment against which leave is sought should not be considered to have been rendered "during the trial" ("au cours de l'instruction").

It points out that the respondents' actions in warranty are not yet ready for trial in the sense that all of the formalities of

article 274.1 C.C.P. have not yet been completed, notwithstanding the fact that the evidence in the two principal actions, at which the petitioner is an active participant, forms part of the record of the respondents' actions in warranty. [ 4 ] As the trial judge correctly observed, however, the principal actions and the actions in warranty are being "heard jointly" in accordance with

article 222 C.C.P. Indeed, as that provision specifies, they "must be heard jointly" ("doivent être entendues conjointement") unless the court orders otherwise. No such order otherwise having been issued, to adopt the view of the petitioner would lead to the inevitable conclusion that the trial judge is presiding at two trials, not one. [ 5 ] In my view, that argument is not unlike those already rejected by me [1] and my colleague St-Pierre, J.A. [2] in respect of applications for leave to appeal interlocutory judgments by all or some of the respondents.

On that basis, plus the active role being played by the petitioner in the actual conduct of the trial, I consider that the petitioner's motion for leave to appeal is governed by the second to last paragraph of

article 29 C.C.P ., which in this case limits the petitioner's potential access to this Court to a circumstance in which the judgment for which leave is sought allows an objection to evidence. [ 6 ] That is, however, the ultimate effect of the judgment substantially granting the respondents' motion to strike. I therefore consider that the petitioner meets the initial threshold to obtain leave to appeal. It is, however, otherwise with respect to whether the pursuit of justice requires that leave be granted, as contemplated by

article 511 C.C.P. [ 7 ] The trial judge struck the impugned expert report on several bases, not the least of which was that the report was an improper attempt to bolster the claims of the impleaded parties rather than defending the action in warranty. He also concluded in other respects that it was irrelevant to the petitioner's defence in warranty. He nevertheless permitted the petitioner to file a new expert report by the

same author on a more restricted basis that he specified. [ 8 ] Obviously, a trial judge has an affirmative duty to allow the introduction only of relevant evidence and an equally affirmative duty to exclude irrelevant evidence. In a trial of extremely long duration such as this one, the scrupulous respect of those co-equal requirements is even more compelling to avoid, in effect, allowing the trial to go off the rails. Rather than reserving judgment on the objections to the admissibility of the evidence, which can be a hazardous practice, the trial judge promptly decided the issue.

His judgment in this particular matter is entirely consistent with the proper performance of the trial judge's function. [ 9 ] In a matter such as this, I would be reluctant to authorize an appeal in the absence of a manifest injustice or a clear reversible error, neither of which are here present, and would adopt the reasons of St-Pierre, J.A., [3] albeit obiter dicta , in her judgment denying leave in a motion in this case brought by the respondents: [14] Les fins de la justice requièrent que le juge de première instance, la personne la mieux placée pour le faire, décide en cours d'instruction des questions de preuve, dont celles relatives à la pertinence, sans intervention de cette Cour et comme le font voir les propos suivants de mon collègue le juge Yves-Marie Morissette que je fais miens : La pertinence est une notion malléable.

En outre, percevoir la pertinence ou l'absence de pertinence d'un élément d'information dans un litige en cours suppose que l'on ait des points de repère, c'est-à-dire que l'on ait une bonne compréhension de ce sur quoi les parties ont lié contestation, qu'on sache comment évolue le dossier et qu'on ait une idée d'ensemble de ce qui en constitue le contenu au moment où l'on est appelé à se prononcer.

Ainsi s'ensuit-il que dans un dossier comme celui-ci, dont le juge Dalphond signalait la complexité technique et juridique, le juge responsable de la gestion de l'instance est nettement mieux placé qu'un autre pour se prononcer sur une question de pertinence.

Ce type de question, comme plusieurs autres, "se prête mal à des décisions sporadiques rendues par différents juges avec une appréhension différente du dossier. [4] [ 10 ] I would also recall what I had occasion to say in dismissing a motion for leave to appeal from an interlocutory judgment in a case, like this one, that was of considerably long duration: [7] […] Although no judge is immune from error, in the particular circumstances of this case, any determination by this trial judge as to what is and what is not relevant evidence should be accorded considerable deference. [5] [ 11 ] The petitioner's motion for leave to appeal is accordingly dismissed with costs against the petitioner, and without costs against the impleaded parties.

ALLAN R. HILTON, J.A. Mtre Jean M. Leclerc GILBERT SIMARD TREMBLAY (Justice Canada) Mtre Donald Béchard LES AVOCATS D E BLOIS ET ASSOCIÉS For the petitioner ATTORNEY GENERAL OF CANADA JTI-MACDONALD CORP. Unrepresented Mtre George R. Hendy OSLER, HOSKIN & HARCOURT For the respondent IMPERIAL TOBACCO LIMITED Mtre Simon V. Potter McCARTHY TÉTRAULT For the respondent ROTHMANS, BENSON & HEDGES INC. Mtre Marc Beauchemin DE GRANDPRÉ CHAIT For the impleaded parties CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ AND JEAN-YVES BLAIS Date of hearing: August 31, 2012