Sansfaçon, Lavallée, Baudouin

Appeal from a judgment of the Superior Court ruling on objections raised during a pre-trial examination. Allowed.

The parties signed a contract to design, build, finance, and upkeep the Samuel-de-Champlain bridge. Once the work was completed, the respondent claimed an additional amount from the appellant, alleging that it failed in its duty to act in good faith by offering neither financial compensation nor additional time to complete construction on the bridge despite the occurrence of certain events beyond its control after the agreement was signed in 2018.

During the pre-trial examination of one of its former representatives, the respondent objected to any questions about events that took place before this agreement was signed on the ground that the agreement settled all questions of delays and the causes of these delays that started prior to the signature date. The trial judge ruled in its favour. The appellant faults the judge for adopting a too restrictive approach with respect to the relevance of the questions asked, such that several questions about elements at the heart of the dispute and its defence could not be asked.

A witness may not refuse to answer a question, except in the rare cases listed under the second paragraph of article 228 of the Code of Civil Procedure (CQLR, c. C-25.01). As stated in paragraph 92 of Procureure générale du Québec c. Groupe Hexagone (C.A., 2018-12-14), 2018 QCCA 2129, SOQUIJ AZ-51554372, 2018EXP-3422: [translation] “article 228 CCP makes a clear distinction between objections concerning, on the one hand, the non-compellability of the person being examined, fundamental rights, or questions raising a ‘substantial and legitimate interest’ and, on the other hand, the other objections, including those concerning relevance”. When they concern relevance, objections are noted and ruled on by the judge on the merits, who is usually in the best position to decide based on the evidence as a whole.

In this case, the judge first erred in law by indicating that a court had to intervene to limit extensive requests for documents that are not directly related to the plaintiff’s claim. Indeed, he considered only the allegations made by the respondent in its proceeding and the expert report filed in support thereof, and in doing so, entirely set aside the allegations in the appellant’s statement of defence and theory of the case. At the pre-trial examination stage, relevance is essentially assessed in light of the pleadings, which include the defence. Prohibiting questions intended to discover facts and documents concerning the allegations of the defence would result “straitjacketing” the appellant within the framework outlined by the respondent alone and thereby preventing it from attempting to prove what it considers to be the actual causes of the problems experienced.

The judge again erred in law when he accepted the respondent’s proposition that the 2018 agreement [translation] “brought into focus the picture of any progress or delay accumulated since the beginning of construction making it possible to fix a new timetable”.  Indeed, he should have refrained from interpreting the contracts in dispute at this stage.

Legislation interpreted: article 228 CCP

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