Court of Appeal of Quebec

Allianz Global Risks US Insurance Company c. SNC-Lavalin inc.

Mainville, Gagné, Beaupré

Application for review of a judgment of the Court of Appeal dismissing applications for leave to appeal de bene esse from a judgment of the Superior Court. Dismissed.

In the context of the pyrrhotite matter, the petitioner insurance companies deny their obligation to indemnify their insured, SNC-Lavalin inc. On November 11, 2022, the Superior Court declared that their grounds of defence were unfounded. The petitioners therefore appealed that judgment. The judge seized with their applications first concluded that leave to appeal under article 31 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.) was required given that the declaratory judgment did not terminate a proceeding but was instead a judgment rendered in the course of a proceeding. Next, the judge refused to grant leave to appeal, holding that the grounds raised had no reasonable chance of success.

The petitioners seek the review of this last judgment, primarily on the ground that they could appeal the declaratory judgment as of right and that the judge exceeded her jurisdiction by concluding otherwise. They also argue that if leave to appeal was required, the judge should have granted it or, at the very least, referred the application to a panel of this Court. In the alternative, the petitioners ask for the revocation of the judgment.

The Court may intervene if one of its judges sitting alone acts without jurisdiction, including in the context of an application for leave to appeal. Such is the case when a judge sitting alone refuses to grant leave to appeal when an appeal as of right is indeed provided by law. In this case, however, the petitioner's appeals cannot be brought as of right since the declaratory judgment is not a judgment terminating a proceeding within the meaning of the first paragraph of article 30 C.C.P. Indeed, the legal proceeding are ongoing between the same parties to determine the scope of the petitioners’ liability. In addition, the petitioner Westport Insurance Corporation wrongly claims that the declaratory judgment falls under the last paragraph of article 31 of the C.C.P. since it is a judgment rendered in the course of a trial. This argument ignores the distinction between a judgment in the course of a proceeding and a judgment rendered in the course of a trial. It also does not take into account the fact that, under the new Code of Civil Procedure, there is no longer an appeal as of right of a final judgment, but rather of a judgment terminating a proceeding.

The alternative application for revocation of judgment must also be dismissed. The petitioners did not establish that the judge brought the administration of justice into disrepute by failing to take into account the general and guiding principles of civil procedure, which delimit her discretionary power. Regarding the fact that the judge did not refer the applications for leave to appeal to a panel of the Court, it is an issue within the jurisdiction of a judge sitting alone, who may refer such an application if he or she is of the opinion, after having heard the parties, that the answer to the question of whether leave to appeal is required is not clear or should be provided by the Court. Savoie c. Thériault-Martel (C.A., 2015-04-09), 2015 QCCA 591, SOQUIJ AZ-51165397, 2015EXP-1185, J.E. 2015-652, does not prohibit a judge of the Court from exercising his or her discretionary power if that judge has jurisdiction over the application for leave to appeal.

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