January 29, 2018
Kasirer, St-Pierre, Vauclair
Application for leave to appeal and appeal from a judgment of the Superior Court allowing in part an application for the disclosure of documents. Appeal allowed in part.
The judgment under appeal was rendered against the appellant, a reporting issuer, at the class action authorization stage pursuant to s. 225.4 of the Securities Act (CQLR, c. V-1.1) and art. 575 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.).
The case law prohibiting appeals from judgments rendered before a class action is authorized is not applicable in this case because the judgment under appeal is more concerned with the burden of proof under s. 225.4 of the Act than that under art. 575 C.C.P. An appeal is therefore possible, with leave, which should be granted in this case. Ordering the disclosure of evidence at this stage modifies the authorization process set out in s. 225.4 of the Act to the appellant’s detriment. It is also in the interest of justice to determine whether the rules that apply in the rest of Canada in such matters also apply in Quebec.
As for the merits of the case, the appellant is correct. The disclosure of documentary evidence should not be permitted at the authorization stage because that would be contrary to the legislative policy underlying s. 225.4 of the Act, which seeks, inter alia, to protect reporting issuers from frivolous claims. The parties’ duty to cooperate set out in the Code does not justify departing from this policy, which is found in the securities regimes of Quebec and the other provinces. The same cannot be said of the appellant’s insurance policy, the disclosure of which was duly ordered by the trial judge.
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