Ashley Kandestin
Articles du même auteur
30 Oct 2012

Article 199 CCP : a question of a judge’s assessment of proportionality

Par Ashley Kandestin, DeGrandpré Chait S.E.N.C.R.L/LLP

By Ashley

Chait S.E.N.C.R.L/LLP

In 1994, a
group of Native persons selling petroleum products filed a Motion for
Declaratory Judgment and Suspension against the provincial and federal
governments (the “Crown”). In short, the plaintiffs sought to declare as being
inapplicable to them the fuel tax, QST and GST, by alleging them to be contrary
to the Indian Act. Eighteen years
later, arguing that the taxation issue cannot be disassociated from the
fiduciary duties owed to them by the Crown, the plaintiffs seek to amend their
motion under article 199 of the Code of Civil Procedure (the “CCP”) in order to
add to it new allegations and conclusions. In Leclaire c. Québec (Sous-ministre du revenu) 2012 QCCA 1872,
Justice Kasirer explains why such an amendment cannot be granted.

As the case
management judge, Justice Louis Crête of the Superior Court refused to allow the
amendments alleging the Crown’s breach of its fiduciary duties. On a motion for
leave to appeal of the decision, plaintiffs had the burden of proving that
Justice Crête erred in exercising the broad discretion a judge enjoys in
managing proceedings under 4.2 CCP, the article espousing the CCP’s golden rule
of proportionality. Justice Kasirer writes:

“[21]  […] In his role as case management judge, he struck the
allegations that, in his view, would transform the proceedings into a
« vast » inquiry relating to a new cause of action, with a different
evidentiary emphasis, undertaken some 18 years after the initial motion for
declaratory motion was
brought on the fiscal issue. He considered that this would violate article 199 C.C.P. and the principle of proportionality that he
was bound to observe as a case management judge pursuant to article 4.2 C.C.P.

With no decisive
mention of the question’s fulfillment of the criteria under article 29 CCP and
without pronouncing on the proposed amendments, their timeliness, value or
legality under article 199 CCP, Justice Kasirer, finding no error in the way in
which Justice Crête exercised his discretion on the amendment, refuses to grant
leave, writing as follows:

“[24] Where a judge has
explained carefully why the principle of proportionality and a sensible
deployment of judicial resources weigh against allowing amendments, leave to
appeal should be denied where no significant error has been demonstrated. This
is consonant with cases where this Court has held that a judge’s view on
proportionality, and in particular the usefulness and the timeliness of
amendments, should not readily be disturbed.
[25] The clear reasons the
judge gave for refusing the amendments, in particular in respect of the new
cause of action brought some eighteen years after the initial motion was
instituted, are thus deserving of deference on appeal. So too are his
objections relating to the disproportionate time and effort the amendments
would require for new evidence insufficiently connected to the existing action.
All of this suggests strongly to me that the pursuit of justice pursuant to article 511 C.C.P. does not justify granting leave.”

The full
text of the decision can be read here.


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