Bich

Application for leave to appeal from judgments of the Superior Court and for a stay of proceedings. Granted in part. Application for intervention. Dismissed.

Both judgments under appeal ruled on the first phase of a split proceeding. In the context of a dispute over the application of a most favoured customer clause, the trial judge first recognized the respondent’s right to do an audit to verify the appellant’s compliance with that clause. He then established the parameters of the audit at issue, including the appointment of an independent expert and strict measures to ensure the confidentiality of the information to be collected. According to the appellant, in enacting article 211 of the Code of Civil Procedure  (CQLR, c. C-25.01) (CCP), which provides that the right of appeal for judgments on the merits of a split proceeding can only be exercised once the judgment terminating the proceeding has been rendered, the legislature cannot have intended to render moot an appeal by a party exposed, as it was, to a highly prejudicial situation, in this case the irreversible disclosure of sensitive commercial information.  A customer of the appellant wants to intervene in the proposed appeal in support of the appellant’s position, believing its own rights compromised by the judgments under appeal.

The application for leave to appeal is unfounded. The legislature intervened in June 2023 to amend, with immediate effect, the rules governing the right to appeal applicable to a split proceeding. The wording of article 211 CCP is clear and the legislature’s intention is not open to interpretation. None of the appellant’s arguments, including those based on the temporal application of the statutes, justifies granting it leave to appeal the first judgment. The appellant may well think that the legislature should not have reintroduced into article 211 CCP the principle abandoned at the time of the 2016 reform of the Code of Civil Procedure or should have realized that the solution adopted could lead to pernicious or unexpected consequences, but this does not authorize the Court or its judges to derogate from the wording by establishing, by virtue of their general powers under article 49 CCP, an exception that the law does not provide for. Nor is it possible to circumvent the rule at issue by resorting to paragraph 2 of article 31 CCP, which governs appeals from judgments rendered in the course of a proceeding that determine part of the dispute or cause irremediable injury to a party.

In any event, the major inconveniences invoked by the appellant do not constitute irremediable injury (even if they could cause concern to its other customers) and do not result in an injustice. Furthermore, it is incorrect to claim, as the appellant does, that its appeal of the judgments will be moot if the appeal must be postponed.

Last, since the appeal of the second judgment is based primarily on the unfoundedness of the first judgment, leave to appeal this judgment also cannot be granted. In the circumstances, the application for intervention becomes moot, not to mention that it is irreparably late. A stay of the trial proceedings should be ordered, however, so as not to jeopardize the appellant's opportunity to appeal to the Supreme Court of Canada.

Legislation interpreted: article 211 CCP.

Text of the decision: http://citoyens.soquij.qc.ca