[1]
The petitioners are being sued by the respondent
for unpaid municipal taxes in the amount of $1,148.93 (years 2007, 2008 and
2009). The action (which is said to be a “test case”) is moving slowly, the
180-day time limit prescribed by art.
[2] On February 1st, 2013, the petitioners filed a motion seeking the suspension of the action for one year. They explained that an “Agreement on Governance” was signed by the Crees of Eeyou Istchee and the Government of Quebec in July 2012. This agreement provides, among other things, for the replacement of the respondent by a new entity (the “Regional Government”), which might well decide to discontinue the action or to settle it amicably.
[3] The respondent opposed the motion.
[4] By interlocutory judgment dated February 11, 2013, the Court of Quebec, Civil Division (the Honourable Judge Jacques Paquet), dismissed the petitioners' motion to suspend the action. The petitioners now seek leave to appeal this judgment.
[5] Their argument is summarized in the few following paragraphs of their motion for leave to appeal :
108. Given the upcoming dissolution of the MBJ and its replacement by the Regional Government, the issues raised in the present proceedings should be addressed by the Regional Government, which will ultimately decide whether the present proceedings should be pursued as to discontinued (sic);
109. Since the composition of the new Regional Government is significantly different from the composition of the MBJ, one cannot assume that the position of the Regional Government with respect to the present proceedings will be the same as that taken by the MBJ;
114. Finally, the suspension of the present proceedings will not cause any prejudice to the MBJ, as the Regional Government, upon it creation, will become the party replacing the MBJ in the present proceedings;
117. If the present leave to appeal is not granted, the parties will incur significant costs in the execution of the Agreement as to the Conduct of the Proceedings possibly for no valid reason, since the Regional Government could ultimately decide to discontinue the present proceedings or to negotiate an out-of-court settlement thereof;
118. If the present leave to appeal is not granted, a risk exists that the implementation of the Agreement on Governance and the creation of the Regional Government could be conducted in an atmosphere not conducive to a successful outcome;
130. If the present proceedings continue, it will require
Mistissini and the GCC(EI) to file a notice to the Attorney General of Québec
under article
133. If a debate on the constitutional validity of the Act to Amend the James Bay Region Development Act were to take place, the Petitioners respectfully submit that this debate, by needlessly reopening a debate that has been resolved by the negotiation and conclusion of the Agreement on Governance, poses a serious threat to the successful implementation of this Agreement. In such situation, the Petitioners would suffer irreparable harm “not susceptible or difficult tot be compensated in damages”;
138. If the suspension of proceedings is not granted the parties
will be immediately required to incur significant expenses, including
the preparation of a defence and of a notice to the Attorney General of Québec
pursuant to article
139. On the other hand, if the suspension is granted, and the Regional Government later takes the same position as that of the MBJ to pursue the present proceedings, the above-mentioned expenses will be incurred in due time when a debate on the issues becomes unavoidable. Moreover, a suspension of proceedings will not cause any prejudice to the MBJ as it will be entitled to the interest on the amount claimed in the final judgment;
143. The pursuit of justice further commands that significant expenses not be incurred by the parties if there is a possibility that the debate can be avoided;
[6] During the hearing, the petitioners further explained that the Agreement on Governance, by creating this new Regional Government, puts an end to a constitutional challenge regarding the management of the territory concerned by the present litigation (Eeyou Istchee James Bay territory). A bill providing for the implementation of this agreement will be introduced shortly in the National Assembly. If the action is not suspended, the petitioners allege that, in order to defend themselves, they will have no choice but to raise the constitutional issue that has just been put to rest by the Agreement, which could jeopardize its coming into force and be highly prejudicial to both the petitioners and the Quebec government.
* *
[7]
The motion for leave to appeal is governed by
art.
29. Est également sujet à appel, conformément à l'article 511, le jugement interlocutoire de la Cour supérieure ou celui de la Cour du Québec mais, s'il s'agit de sa compétence dans les matières relatives à la jeunesse, uniquement en matière d'adoption : 1. lorsqu'il décide en partie du litige; 2. lorsqu'il ordonne que soit faite une chose à laquelle le jugement final ne pourra remédier; ou 3. lorsqu'il a pour effet de retarder inutilement l'instruction du procès. Toutefois, l'interlocutoire rendu au cours de l'instruction n'est pas sujet à appel immédiat et ne peut être mis en question que sur appel du jugement final, à moins qu'il ne rejette une objection à la preuve fondée sur l'article 308 de ce code ou sur l'article 9 de la Charte des droits et libertés de la personne (chapitre C-12) ou à moins qu'il ne maintienne une objection à la preuve. Est interlocutoire le jugement rendu en cours d'instance avant le jugement final. |
29. An appeal also lies, in accordance with article 511, from an interlocutory judgment of the Superior Court or the Court of Québec but, as regards youth matters, only in a matter of adoption: (1) when it in part decides the issues; (2) when it orders the doing of anything which cannot be remedied by the final judgment; or (3) when it unnecessarily delays the trial of the suit. However, an
interlocutory judgment rendered during the trial cannot be appealed
immediately and it cannot be put in question except on appeal from the final
judgment, unless it disallows an objection to evidence based upon article Any judgment is interlocutory which is rendered during the suit before the final judgment. |
511. L'appel d'un jugement interlocutoire n'a lieu que sur permission accordée par un juge de la Cour d'appel, lorsqu'il estime qu'il s'agit d'un cas visé à l'article 29 et que les fins de la justice requièrent d'accorder la permission; il doit alors ordonner la continuation ou la suspension des procédures de première instance. Toutefois, l'appel du jugement interlocutoire rejetant une objection à la preuve fondée sur l'article 308 de ce code ou sur l'article 9 de la Charte des droits et libertés de la personne (chapitre C-12) n'est pas assujetti à une permission. De plus, cet appel ne suspend pas l'instance, mais le juge de première instance ne peut rendre son jugement final ni entendre la preuve visée par l'objection tant que l'appel du jugement interlocutoire n'est pas décidé. L'appel d'un jugement interlocutoire est soumis aux règles applicables à un jugement final; cependant, les parties ne sont pas tenues de produire un mémoire, sauf si un juge en décide autrement. L'appel d'un tel jugement est entendu à la date déterminée par le juge dans le cas où la permission est requise et par le greffier, dans les autres cas. [Soulignements ajoutés.] |
511. An appeal lies from an interlocutory judgment only on leave granted by a judge of the Court of Appeal if he is of opinion that the case is one that is contemplated in article 29 and that the pursuit of justice requires that leave be granted; the judge must then order the continuation or suspension of the proceedings in first instance. However, an appeal from an interlocutory
judgment dismissing an objection to evidence based on article Appeal from an interlocutory judgment is subject to the rules applicable to a final judgment; however, the parties are not required to file a factum, unless a judge decides otherwise. The appeal is heard on the date determined by the judge in cases where leave is required and on the date determined by the clerk in other cases. [Emphasis added.] |
[8] According to these provisions, as interpreted and applied by the Court, leave to appeal will be granted upon the following cumulative conditions :
- The
judgment is one of those listed in the first of second paragraphs of article
- The
pursuit of justice, according to article
[9]
The pursuit of justice, in and of itself, cannot
justify that leave be granted if the judgment is not one of those that are
subject to appeal pursuant to the first or second paragraph of article
[10]
In light of the foregoing, I am of the view that
the motion for leave to appeal must be dismissed because the interlocutory
judgment of Paquet J. is not subject to appeal pursuant to article
[11] The judgment was not rendered during the trial and, therefore, we may immediately discard the second paragraph of article 29, which is irrelevant to the present case.
[12] As far as the first paragraph of article 29 is concerned, the judgment does not decide the issues within the meaning of subparagraph 1, i.e. decides upon the merits of the action. Neither is it a judgment which “unnecessarily delays the trial of the suit” within the meaning of subparagraph 3, quite the contrary. Is it, however, a judgment which “orders the doing of anything which cannot be remedied by the final judgment” within the meaning of subparagraph 2?
[13] It is not.
[14] In Elitis Pharma inc.,[3] my colleagues Rochon and Kasirer JJ.A. explained that subparagraph 2 of the first paragraph of article 29 refers to the judgment ordering something that has “un caractère irrémédiable sur l'instance judiciaire seulement” (para. [16] of Elitis Pharma), entailing a “préjudice à l'instance” itself. There is not such prejudice in the present case.
[15] The “irreparable prejudice” alleged here is that which would result from the ordinary course of proceedings and the duty to ensure in a timely manner that the case be ready for hearing. For obvious reasons, this has never been and cannot be recognized as causing an irreparable prejudice to either party. Moreover, the fact that proceedings may be costly or might be settled out of court or be abandoned after money and efforts have been spent cannot be construed as an irreparable prejudice, since these are risks inherent to any litigation. There are a few, very restrictive exceptions to that rule, in matters of jurisdiction, res judicata or lis pendens or in the case of a new and important question of law that must be decided immediately. None of these exceptions applies here. Finally, economic, political or strategic consequences deriving from a judgment are not relevant and cannot be considered.
[16] For these reasons alone, the motion for leave to appeal should be dismissed.
[17]
I must add, however, that were Paquet J.'s
judgment appealable pursuant to article
[18] I also feel compelled to say that Paquet J.'s judgment is not binding and can be reconsidered were new facts or circumstances to emerge. One may for instance surmise that the bill that will be introduced in the National Assembly may contain provisions that could constitute new circumstances or help solve the present matter.
FOR THESE REASONS, THE UNDERSIGNED:
[19] Dismisses the motion, with costs.
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MARIE-FRANCE BICH, J.A. |
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Mtre François Dandonneau |
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GOWLING LAFLEUR HENDERSON |
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For the petitioners |
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Mtre Yves Dulude |
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SPIEGEL, SOHMER, INC. |
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For the respondent |
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Date of hearing: |
May 9, 2013 |
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[1] 2012 QCCA 1348 , J.E. 2012-1585 (motion for leave to appeal to the Supreme Court dismissed, 2013-02-14, 35012), para. 24 in particular.
[2] See also : Weinberg v. Cinar Corporation,
[3] Supra, note 1.
[4] See for instance : Technologies RT inc. v. Technologies
RS inc.,