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Pharmaprix inc. c. Régie de l'assurance maladie du Québec

2014 QCCA 1288

 

COURT OF APPEAL

 

 

 

CANADA

 

PROVINCE OF QUEBEC

 

REGISTRY OF

MONTREAL

 

 

No:

500-09-024403-149

 

(500-17-082262-141 & 500-17-082238-141)

 

 

 

DATE:

 June 26, 2014

 

 

 

 

 

PRESIDING : THE HONOURABLE YVES-MARIE MORISSETTE, J.A.

 

 

 

 

 

500-17-082262-141

 

 

 

PHARMAPRIX INC.

SHOPPERS DRUG MART INC.

SANIS HEALTH INC.

DOMENIC PILLA

JEFF LEGER

 

PETITIONERS - Petitioners

 

and

 

TEVA CANADA LIMITED

 

IMPLEADED PARTY - Intervener

 

v.

 

 

 

RÉGIE DE L’ASSURANCE MALADIE DU QUÉBEC

JULIE TESSIER

MANON ROY

 

RESPONDENTS - Respondents

 

 

 

_____________________________________________________________________                                                                                                                                       

 

 

 

500-17-082238-141

 

 

 

SANDOZ CANADA INC.

MARTIN FOURNIER

 

PETITIONERS - Petitioners

 

v.

 

RÉGIE DE L’ASSURANCE MALADIE DU QUÉBEC

JULIE TESSIER

 

RESPONDENTS - Respondents

 

 

 

 

 

JUDGMENT

 

 

 

 

 

[1]           On May 27, 2014, my colleague Justice Kasirer, sitting alone, heard a motion to annul a stay of execution ordered some four weeks earlier by Justice Corriveau of the Superior Court.[1] Justice Kasirer rendered judgment on June 6 and he annulled the stay.[2]

[2]           These proceedings arose in the context of an on-going investigation which the Régie de l’assurance maladie du Québec (“the Board” and Respondent before me) is conducting into the activities of several drug manufacturers and drug wholesalers (the Petitioners before me). The judgment of the Superior Court suspended the execution of subpoenas duces tecum issued by one of the Board’s investigators against repre­sentatives of the Petitioners. It did so in the following terms:

 

[70]      PRONONCE le sursis du subpoena adressé à M. Martin Fournier lui ordonnant de communiquer en date du 10 avril 2014 les documents contestés jusqu'à toute nouvelle ordonnance du Tribunal;

 

[71]      PRONONCE le sursis des subpoenas adressés à M. Jeff Leger et M. Domenic Pilla ordonnant de communiquer les documents contestés en date du 28 avril 2014 jusqu'à toute nouvelle ordonnance du Tribunal[.]

 

The stay in question was an interlocutory order issued pending a hearing on the merits of two motions brought forth by two different groups of Petitioners. While these two motions are not identical in every respect, they are very similar. Both are styled as follows: motion to institute proceedings for judicial review, to partially quash subpoenae duces tecum, for declaratory judgment, for a stay and for confidentiality orders (Articles 2, 3, 4.1, 6, 8, 13, 20, 33, 46, 453, 834.1 and 846 et seq. C.C.P.). Both are still pending in the Superior Court.

[3]           Justice Kasirer based his judgment on section 19 of the Act respecting the Régie de l’assurance maladie du Québec[3] (the ARAMQ), a provision which for present purposes is best understood when read in conjunction with section 18:

 

18. Aucun des recours extraor­dinaires prévus aux articles 834 à 850 du Code de procédure civile (chapitre C-25) ne peut être exercé ni aucune injonction accor­dée contre la Régie ou les membres du conseil d'adminis­tra­tion agissant en leur qualité offi­cielle.

 

 

19. Un juge de la Cour d'appel peut, sur requête, annuler som­mai­rement tout bref et toute ordonnance ou injonction délivrés ou accordés à l'encontre de l'article 17 ou 18.

 

 

18. None of the extraordinary recour­ses provided in articles 834 to 850 of the Code of Civil Procedure (chapter C-25) shall be exercised and no in­junc­tion shall be granted against the Board or the members of the board of directors acting in their official capacity.

 

19. A judge of the Court of Appeal, upon motion, may annul sum­marily any writ, order or injunction issued or granted contrary to section 17 or 18.

 

In its most relevant part, the judgment of June 6 states:

 

[68]      ANNULS the stay ordered in paragraph [70] of the judgment of the Superior Court in respect of subpoenas addressed to respondents Jeff Leger and Dominic Pilla;

 

[69]      ANNULS the stay ordered in paragraph [71] of the judgment of the Superior Court in respect of subpoenas addressed to respondent Martin Fournier[.]

 

Given the particular nature of the procedure, nothing remains pending in the Court of Appeal once a judgment granting a motion pursuant to section 19 of the ARAMQ is rendered.

*   *   *   *   *

[4]           I am now seized of two motions which, again, are not identical, but are very similar. Both are styled as follows: motion for reconsideration by the court of a judgment rendered by a judge sitting alone and, subsidiarily, in revocation of said judgment (Articles 4.2, 20, 46, 483(2°), 485 and 497 of the Code of Civil Procedure). Both state in their conclusions:

 

FOR THESE REASONS, MAY IT PLEASE THIS COURT TO:

 

ON THE REQUEST TO SUSPEND THE JUNE 6 JUDGMENT:

 

SUSPEND, pending final adjudication of this motion, the effect of the June 6 Judgment rendered by the Honourable Justice Nicholas Kasirer, J.C.A.; and

 

ON THE MERITS OF THE PRESENT MOTION:

 

GRANT the Present Motion;

 

DECLARE that the June 6 Judgment rendered by the Honourable Justice Nicholas Kasirer, J.C.A., is annulled on the basis of absence of jurisdiction;

 

SUBSIDIARILY:

 

REVOKE the June 6 Judgment rendered by the Honourable Justice Nicholas Kasirer, J.C.A.;

 

DISMISS Respondent’s Motion to Annul the judgment rendered on May 1, 2014 by Justice Corriveau[.]

 

It is also apparent from the notices of presentation which were served with these two motions that the role the Petitioners expect me to play in this new set of proceedings is a limited one. Both notices are identical. They read as follows:

 

ON THE REQUEST TO SUSPEND THE JUDGMENT RENDERED ON JUNE 6, 2014:

 

TAKE NOTICE that the present Motion will be presented for hearing and allowance, before the Court of Appeal, on June 25, 2014, at 9:30 a.m., at 100 Notre-Dame Street East, Montréal, Québec H2Y 4B6, in room RC-18.

 

ON THE MERITS OF THE PRESENT MOTION:

 

TAKE NOTICE that the present Motion will be presented for hearing and allowance, before the Court of Appeal, on August 7, 2014, at 9:30 a.m., at 100 Notre-Dame Street East, Montréal, Québec H2Y 4B6, in room Pierre-Basile Mignault.

 

In other words, what I have to decide, and the sole issue I am asked to decide, is whether or not I should, and indeed whether I can, suspend the judgment rendered by Justice Kasirer on June 6.

[5]           At the hearing of the motions, counsel for the Petitioners argued that I can and must grant the stay because, either (i) the judgment of June 6 is an excess of jurisdiction and a nullity ab initio, the existence of which I need only acknowledge (“prendre acte”) in order to have authority to pronounce a stay of execution, or (ii) the judgment of June 6 is such that it must be revoked pursuant to paragraph 2 of article 483 C.C.P., and since I can “receive” the motions for revocation which will be presentable to a panel of this Court next August 7, article 485 C.C.P. applies and automatically suspends execution.

[6]           For the reasons which follow, there is not the slightest doubt in my mind that I do not have jurisdiction to do what the Petitioners now ask me to do. Invited during the hearing to refer me to a single precedent or authority which would “be on all fours” with the situation at hand and which might suggest otherwise, the Petitioners were unable to do so. I might add that this complete absence of a case or authority directly on point comes as no surprise to me.

*   *   *   *   *

[7]           I may begin by pointing out that the jurisdiction of a judge of the Court of Appeal sitting alone is necessarily a limited one. It is possible to expand this jurisdiction by legislative action and that is precisely what section 19 of the ARAMQ accomplishes - the provision is unusual in that it grants a single judge of the Court the authority, in effect, to reverse a judgment of the Superior Court. Such provisions, known in French as “clauses de renfort”,[4] are meant to reinforce the deterrence value of privative clauses like section 18 of the ARAMQ. Article 857 C.C.P. would be another sort of uncommon power conferred upon a judge of the Court. Yet in the absence of clear codal or statutory language, the jurisdiction of an appellate judge sitting alone must remain confined to the remit precisely circumscribed by the Code of Civil Procedure or relevant legislation, and it cannot be allowed to drift and grow through mere “interpretation”.

[8]           We are fortunate in that we now have the benefit of a recent and learned monograph published by a member of our Court and which focuses on the individual jurisdiction of the Court’s judges. Its author notes in his general introduction:[5]

B. L’interprétation des pouvoirs du juge unique

 

            Interprétation stricte - Tout comme celle de la Cour et peut-être encore plus, la compétence du juge unique est fortement balisée par les textes législatifs. Cela tient à la fois à la nature du droit d’appel et au caractère d’exception de la fonction du juge seul au sein d’une cour qui exerce sa compétence en formation. Cette approche fait l’objet d’un large consensus à la Cour et se traduit par une lecture serrée des textes législatifs.

 

An illustration of this attitude is the consistent refusal by members of the Court to enlarge their jurisdiction on the basis of general provisions that do not explicitly confer powers to single judges. Thus, it is well known by now that the general language of article 46 C.C.P. does not empower a judge alone to issue a safeguard order for the duration of the proceedings in the Court of Appeal. A member of the Court who would grant such an order would find himself in one of the very few situations where a panel of the Court has authority to annul the order for want of jurisdiction (in the narrow sense of vires).[6]

[9]           As far as the specific matter of a stay of execution is concerned, the Code of Civil Procedure speaks in plain and unambiguous language:

522.1 La Cour d’appel ou l’un de ses juges peut ordonner, aux conditions qu’il estime appro­priées, de sus­pen­dre l’exécution d’un jugement de cette cour, sur demande d’une partie qui démont­re son intention de présenter une demande d’autorisation d’appel à la Cour suprême du Canada.

522.1 The Court of Appeal or one of its judges may, subject to the conditions the Court or the judge deems appropriate, order suspens­ion of the execution of a judgment of the Court, on a motion of a party who establishes his intention to apply for leave to appeal to the Supreme Court of Canada.

(Emphasis added)

 

Although the issue is not explicitly addressed by the provision, it might be possible to argue that, pursuant to article 522.1, a judge of the Court may suspend the execution of a judgment rendered by another judge sitting alone when a party establishes his intention to apply to the Supreme Court of Canada for leave to appeal from this judgment. This reading of the article does not seem to overextend its reach. After all, if one judge of the Court may suspend the execution of “a judgment of the Court” (a phrase that is usually understood to mean a judgment of a panel of the Court), it would seem consistent with the policy underlying the provision that, under similar circumstances, a single judge of the Court will have authority to stay the execution of a judgment rendered by a judge alone. But I do not see how the provision could be stretched further so as to enable me to stay Justice Kasirer’s judgment under the circumstances of this case. No attempt was made here to establish that the Petitioners intend to apply for leave to appeal to the Supreme Court of Canada. Needless to say, whether the Supreme Court of Canada would grant leave is altogether another matter.

[10]        In my view, on that ground alone, the Petitioners’ motions for a stay must fail.

*   *   *   *   *

[11]        But other considerations persuade me that the dismissal of the motions is the only appropriate course of action here. Even if I had jurisdiction to order such a stay, which I do not believe I have, I am strongly inclined to think that I would decline to do so in this case. As was noted in a recent judgment dismissing a motion for a stay under article 522.1, the petitioner who brings such a motion must meet three conditions:[7] he must show “(1) the existence of a serious question to be decided on appeal; (2) that [he] will suffer serious prejudice if [his] application for suspension is not granted; and (3) that the balance of inconvenience between the parties favours the granting of suspension. See, e.g., Restaurant La Porte de Lévis inc. v. Corporation Cadillac Fairview ltée, [2002] J.Q. no 6144 (C.A.); Pamphile v. Montréal (Ville de), 2008 QCCA 1821. ”

[12]        Assuming a stay of the sort which is sought here would be governed by the same principles as a stay governed by article 522.1 C.C.P., I am not satisfied that the Petitioners show the existence of a serious question to be decided on a reconsideration of Justice Kasirer’s judgment by a panel of our Court.

[13]        It is clear in this instance that the Petitioners disagree with Justice Kasirer’s reading of section 19 of the ARAMQ. But evidently that does not suffice to give rise to a genuine jurisdictional issue. To hold the opposite view would defeat the whole purpose of a statutory scheme involving a privative clause followed by a provision similar to section 19 of the ARAMQ.

[14]        In essence, the Petitioners raise two lines of arguments:

¾    The subpoenae served on them were issued on the strength of section 9 of Act respecting public inquiry commissions (the ARPEC),[8] a statute to which explicit reference in made in section 20 of the ARAMQ. But, unlike section 18 of the ARAMQ, which is bolstered by section 19 of the same Act, the privative clause contained in section 17 of the ARPEC is not backed by a “clauses de renfort”. Therefore, say the Petitioners, Justice Kasirer did not have jurisdiction to summarily annul the stay granted on May 1. This argument, incidentally, was not raised before Justice Kasirer, which is why there is no mention of it in his reasons for judgment.

¾    Alternatively, they contend that the judgment of June 6 falls under paragraph 2 of article 483 C.C.P. as a judgment which “has decided beyond the conclusions”. In the course of the hearing on May 27, Justice Kasirer heard arguments based on Manitoba (A.G.) v. Metropolitan Stores[9] and concluded, on one limb of the test set out in this case, that the proceedings pending in the Superior Court did not raise a serious question. He phrased this conclusion in these terms:

[48]      In my respectful view, the respondents’ motions for judicial review do not raise a serious question as to absence of jurisdiction. At least on the basis of the materials before the Superior Court, deference was owed to the Board’s decision, even if the contested documents contained information on business conducted outside of Quebec.

In so doing, say the Petitioners, Justice Kasirer prejudged the merits of the motions for judicial review pending in the Superior Court. They also question the soundness of his analysis on a second limb of the test in Metropolitan Stores, that pertaining to an assessment of irreparable harm

[15]        Dealing first with the argument based on article 483 C.C.P., I note that the conclusions of the motion presented before Justice Kasirer on May 27 stated what follows:

ANNULER l’ordonnance de sursis prononcée le 1er mai 2014 par la Cour supérieure à l’égard des subpoenas adressés aux intimés Jeff Léger et Dominic Pilla dans le dossier portant le numéro 500-17-082262-141;

ANNULER l’ordonnance de sursis prononcée le 1er mai 2014 par la Cour supérieure à l’égard du subpoena adressé à l’intimé Martin Fournier dans le dossier portant le numéro 500-17-082238-141[.]

What is requested in these conclusions is precisely what the order in Justice Kasirer’s judgment granted the Respondents.[10] I fail to see how the second paragraph of article 483 C.C.P. might have any application here.

[16]        As regards the first argument, let it not be forgotten that we are not dealing here with an appeal. We are told by the Petitioners that we encounter in this case one of those very rare situations where a panel of the Court will exercise its jurisdiction to revise and reconsider a judgment of a member of the Court, and reverse it on jurisdictional grounds. There are, it is true, a few statutory provisions which, regardless of any jurisdictional issue, explicitly allow for the review by a panel of the Court of a judgment rendered by a single judge of the Court.[11] But the Code of Civil Procedure contains no such provision. What is therefore at stake is the inherent power of the Court to dismiss an appeal for want of jurisdiction, and the crux of this question involves cases, and perhaps involves only cases, where the Court reaches this conclusion in spite of the fact that a judge alone had previously granted leave to appeal to the appellant. No one would dispute today that the Court has such a power for the case law repeatedly confirmed its existence.[12] But in so doing we are talking about jurisdiction and vires in the most exacting sense of these words, not about a point of statutory interpretation which, assuming for the sake of argument that it has substance, might be debatable in an appeal to the Supreme Court of Canada.

[17]        Thus, to use but one example, there is a general rule afoot according to which no appeal lies against a judgment dismissing a motion to dismiss because such a judgment does not fall within any of the categories listed in paragraphs 1 to 3 of article 29 C.C.P., - as is the case with very many rules, there is also a handful of exceptions to this general rule, when the motion to dismiss rests on res judicata, lis pendens, etc. This general rule pertains to the jurisdiction of the Court of Appeal. If, therefore, a judge of the Court grants leave to appeal from a judgment dismissing a motion to dismiss not comprised in one of the said exceptions, he does so without jurisdiction, and the panel seized of the appeal will dismiss it for want of jurisdiction. That is exactly what Justice Gonthier, then a member of this Court, explained on behalf of a panel of the Court in Cousineau v. Petitpas.[13]

[18]        In a similar vein, if I granted a safeguard order to the Petitioners, and extended it until their motions are heard on their merits by a panel of the Court, I would be acting without jurisdiction, and my order would be subject to review and reversal by a panel of my colleagues.

[19]        In view of section 19 of the ARAMQ, I cannot fathom how a party could succeed in framing a jurisdictional argument, pertaining I repeat to vires in the narrow sense, against Justice Kasirer’s judgment. And any genuine issue, supposing there could be one, on the interaction of sections 2, 19 and 20 of the ARAMQ, and sections 9 and 17 of the ARPEC, all of which hinge on the powers of the Board, would be the stuff of an appeal, not of a “motion for reconsideration by the court of a judgment rendered by a judge sitting alone”.

[20]        I am not even certain that in the instant case the Court itself has jurisdiction to hear such a motion - in fact, I doubt it. There is at present, and in this case, no appeal before the Court in which leave would have been improperly granted by an ultra vires decision of one of its judges. No interlocutory judgment by a judge of the Court is currently extant in a Petitioners’ appeal now pending before the Court. No statutory or codal provision allows for a reconsideration of a judgment in circumstances similar those of this case. And procedurally speaking, the case which lends itself to the closest (and imperfect but tenable) analogy with the Responents’ situation is Groupe immobilier Osiris inc. v. King,[14] where a panel of the Court unanimously dismissed a motion to revise or revoke a judgment by a judge of the Court sitting alone in practice.

[21]        As for motions for the revocation of a judgment rendered by a judge alone, they exceptionally can be entertained by another judge,[15] and therefore by a panel of the Court if they are deferred or presented to one. But the grounds on which they can be so entertained are narrow and at no time must the process be confused with an appeal.[16] Here, the Petitioners’ motions, again, read through and through like an appeal. And in any event, in the pleadings before me, the relief sought does not include a request that I receive a motion for the revocation of the judgment of June 6.

*   *   *   *   *

[22]        During oral argument, counsel for the Petitioners informed me that she wished to amend both motions in order to include an explicit reference to paragraph 1 of article 483 C.p.c. She is of course entitled to do so if she so desires.

[23]        For the foregoing reasons, the motions for a suspension of execution of the judgment on June 6 by Justice Kasirer are dismissed, with costs.

 

 

 

 

YVES-MARIE MORISSETTE, J.A.

 

Mtre Suzanne Côté

Mtre Frédéric Plamondon

OSLER, HOSKIN & HARCOURT

For Petitioners (500-17-082262-141)

 

Mtre Irwin I. Liebman

Mtre Moe Liebman

LIEBMAN LÉGAL INC.

For Petitioners (500-17-082238-141)

 

Mtre Suzanne Gagné

LÉTOURNEAU GAGNÉ

Mtre Stéphane Poulin (absent)

BÉDARD POULIN AVOCATS

Mtre Suzanne Costom (absente)

SHADLEY BATTISTA COSTOM

For Respondents

 

Mtre Karen Marina Rogers

Mtre Daniel Baum

LANGLOIS KRONSTRÖM DESJARDINS

For Impleaded party

 

Date of hearing:

June 25th, 2014

 



[1]     Pharmaprix inc. c. Régie de l'assurance maladie du Québec, 2014 QCCS 2143.

[2]     Régie de l'assurance maladie du Québec v. Pharmaprix inc., 2014 QCCA 1184.

[3]     CQLR, c R-5.

 

[4]     André ROCHON (avec la collaboration de Frédérique Le Colletter), Guide des requêtes devant le juge unique de la Cour d’appel - Procédure et pratique, Cowansville, Éditions Yvon Blais, 2013, p. 152 and fol.

[5]     Ibid., p. 7.

 

[6]     See 9045-6740 Québec inc. v. 9049-6902 Québec inc., J.E. 2003-2270 (C.A.).

 

[7]     Fleischer (Estate of), 2013 QCCA 2237, par. 10.

[8]     CQLR, c C-37.

[9]     [1987] 1 S.C.R. 110.

[10]    See supra, par. [3].

[11]    See for example section 680 of the Criminal Code, R.S.C. 1985, c. C-46.

[12]    See in particular ROCHON, op. cit., supra, note 4, p. 177 and fol., and Protection de la jeunesse - 74, [1983] R.D.J. 258 (C.A.), Cousineau v. Petitpas, [1988] R.D.J. 580 (C.A.), Québec (Ville de) v. Bégin,  [1990] R.D.J. 61 (C.A.), J.D.L. v. Vallée, J.E. 94-566 (C.A.), Rolls-Royce Ltd. v. Commission de la santé et de la sécurité du travail, J.E. 97-932 (C.A.), Droit de la famille - 1293, J.E. 97, 1293 (C.A.), Kenneth, Roy, Sinclair (Syndic de), J.E. 2004-1591 (C.A.), Apotex inc. v. Régie de l’assurance maladie du Québec, 2005 QCCA 200, Groupe immobilier Osiris inc. v. King, 2009 QCCA 1074 and Elitis Pharma inc. v. RX Job inc., 2012 QCCA1348.

[13]    Ibid.

[14]    2009 QCCA 1074.

[15]    See Groupe Sutton Harmonie inc. c. Ladouceur, 2013 QCCA 1043.

[16]    See Grenier v. Ladouceur, 2013 QCCA 1407.

AVIS :
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