Savard, Marcotte, Gagné
Appeal from a judgment of the Superior Court establishing the case protocol ex officio. Allowed in part.
In a class action, the trial judge established the case protocol ex officio. The appellant invokes two grounds: (1) The judge did not have the discretion to refuse the pre-trial examinations of the respondents' representatives; in the alternative, he made a palpable error in the exercise of this power; and (2) The judge erred in depriving the appellant of his right to file second opinions.
The case management measures that may be taken by the court in examination matters are found in paragraph 3 of article 158 of the Code of Civil Procedure (RLRQ, c. C-25.01) (C.C.P). The punctuation of this paragraph, namely the commas surrounding the words "if such examinations are required", strongly suggests that the court cannot decide, as a case management measure, whether or not examinations are required. It may only determine their terms, in particular their number and length, if the parties request them. Indeed, article 221 C.C.P. grants the parties the right to examine certain persons before the hearing, provided that the value in dispute is not less than $30,000. The court may not, as a case management measure, deprive a party of this right. Where there is abuse, however, the court may refuse an examination, end it, or cancel a summons to appear. In such a case, it exercises its power to sanction abuse of process, not its power to take case management measures to ensure the smooth conduct of the proceedings. The appeal should therefore be allowed in part, and the case should be referred back to the Superior Court so that it may determine the terms of the examinations and amend the case protocol accordingly.
The judge did not err in refusing to reserve the appellant's right to file one or more second opinions. The judge dismissed the appellant's request [translation] "at this stage". His decision on this point was by no means final. He may evaluate the purpose and relevance of a second opinion at any time in the proceedings.
Interpreted legislation: article 158 C.C.P.
Text of the decision: http://citoyens.soquij.qc.ca