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mardi 3 mars 2015

Does the Act of Denying a Written Defence Create a Serious Prejudice that Requires that Leave to Appeal be Granted in the Pursuit of Justice?

By Sarah D. Pinsonnault

Article 175.2 of the Code of Civil Procedure (C.C.P.) establishes a series of subject matters that prescribe oral defences. In these instances, should a party wish to opt for a defence in writing and failing agreement between the parties, he must address the court pursuant to article 175.3 C.C.P. The judge seized with this motion has a great deal of discretion in this matter since it forms part of case management. If a party seeks leave to appeal this decision, it should be noted that while this judgment does fall under article 29 C.C.P., as it orders that something be done “which cannot be remedied by the final judgment", the condition set forth under article 511 C.C.P. must still be met, in that the “the pursuit of justice requires that leave be granted”. In Schluter Systems (Canada) Inc. c. Gelston, 2015 QCCA 335, the Petitioner (Defendant) is seeking leave to appeal an interlocutory judgment that dismissed his motion to implement a timetable and to authorize a written defence. The Court of Appeal, presided by the Honourable Justice Geneviève Marcotte, J.A., sitting alone, however dismissed his motion for leave to appeal on the grounds that he failed to demonstrate how this decision created a serious prejudice.

In his motion for leave to appeal, the Petitioner argued:

“[11] … [T]hat the magnitude of the amount claimed, the complexity and number of allegations and considerations of proportionality and fairness warrant that a written defence be ordered pursuant article 175.3 C.C.P. He further contends that the judgment falls within article 29 C.C.P. as it "orders that something be done which cannot be remedied by final judgment."” (references omitted)
Marcotte, J.A., began her analysis of this point by referring to the overriding principle that emerged from a review of the applicable case law, in that “[13] Judges of this Court have generally found that denying a written defence does not create a serious prejudice”. 

This was followed by examples of where leave to appeal was denied in such instances. Ultimately, these examples demonstrate how a party is not deprived of any rights when it is ordered proceed orally instead of filing a written defence. Its fundamental rights are still preserved and, as a result, there is no reason for the Court of Appeal to intervene in the management of the first instance proceedings.

Marcotte, J.A. then went on to conclude as follows:

“[16] In the case at hand, the petitioner has failed to demonstrate that the interlocutory judgment denying him permission to file a written defence creates a serious prejudice. The petitioner does not have an absolute right to file a written defence and such written defence is not required for a fair and equitable trial. Also, while the petitioner argues that it is prevented from filing a cross-claim on the basis of the abusive nature of the Plaintiff’s proceedings, there is nothing precluding it from presenting a Motion to have the claim declared abusive under article 54.1 C.C.P., even though the defence is an oral one.
[17] Moreover, given the trial judge’s broad discretion in matters of case management such as these, in keeping with the principles of articles 4.1 and 4.2 C.C.P., the Court of Appeal will only intervene where there is a manifest error, a denial of justice or other exceptional circumstances, none of which have been demonstrated here. The petitioner has therefore failed to convince me that the pursuit of justice requires that leave to appeal be granted with respect to the second motion.
FOR THESE REASONS, THE UNDERSIGNED:
[18] DISMISSES the amended motions for leave to appeal, with costs.”
(references omitted)
To read this decision in its entirety, click here.

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