Most litigators will remember the rule from the old
Code of Civil Procedure
which suspended the right to appeal from a first judgment rendered on the merits of a split case until the judgment putting an end to the case was itself rendered:
” 273.2. The judgment on the demerger application is final;
the right to appeal judgments rendered on the merits of the case does not arise until the judgment putting an end to the case.
“
[Soulignement ajouté.]
The fact that this rule had not been included in the new Code quickly led the Court of Appeal to deduce, in Droit de la famille – 161983 in 2016, that the modalities of the right to appeal the first judgment rendered on the merits in a split proceeding had been modified in two ways[1] : the right to appeal the first judgment rendered on the merits in a split proceeding had been modified in two ways. : i) the appeal had to be lodged without delay (art. 31 para. 3
C.p.c.
), and because such a judgment was considered an interlocutory judgment that “decides part of the dispute”,
ii)
permission to appeal had to be obtained from a judge of the Court (art. 31 para. 2
C.p.c.
).
i) Delayed takeoff
In February 2023, the rule of the former article 273.2 in fine a.C.p.c. made an unexpected comeback through a last-minute amendment to Bill no 8, An Act to improve the efficiency and accessibility of justice, in particular by promoting mediation and arbitration and by simplifying civil procedure in the Court of Québec.[2]which was introduced by the Minister of Justice at the request of the Chief Justice of Quebec, on the second and last day of the detailed study of the bill before the Committee on Institutions[3] ..
As the Minister then explained:
“The amendment modifies article 211 of the Code of Civil Procedure to prevent parties from having to hurry to appeal a judgment rendered on a claim resulting from a division of proceedings, simply to protect their rights. It specifies that the 30-day time limit for filing a statement of appeal begins to run from the judgment terminating the proceedings”.
Article 211
C.p.c.
as amended, which came into force on June 30, 2023[4], reads as followsreads as follows:
” 211. The court may, even of its own motion, split a case if it deems it appropriate to do so having regard to the rights of the parties. In this case, the resulting claims are heard by the same judge, unless the Chief Judge decides otherwise.
A judgment rendered on one of the claims resulting from this division may only be appealed from the date of notice of the judgment terminating the proceedings, or from the date of this judgment if it was rendered at the hearing.
“
[Soulignement ajouté.]
The Court of Appeal and other judges have since analyzed the scope of article 211 al. 2
C.C.P.
in a handful of decisions, the most detailed (and also the most recent) being in Honeywell International Inc. c. Bombardier Inc.[5]a case pitting two giants of the aeronautics industry against each other. In this decision, Justice Bich explained that this provision did not alter Honeywell’s substantive right to appeal the trial judgment, but merely modified the temporal terms of its exercise by postponing the moment from which it could be exercised[6].. Relying on the Supreme Court’s decision in
Puskas
[7]Justice Bich went on to explain that such a change in the manner of exercising a right of appeal was a procedural matter, just as it would have been if a right of appeal, initially of right, had been changed to a right of appeal by leave[8]..
ii) Is the requirement for permission waived?
At first glance, the new paragraph 2 of article 211
C.C.P.
contains nothing that directly interferes with the nature of the first judgment given on the merits of a split case. Thus, we would be inclined to believe that it must always be considered as an interlocutory judgment that “decides the dispute in part”, as the Court determined in
Family Law – 161983
in 2016, and therefore also that the right to appeal such a judgment is still subject to the requirement that permission be obtained from a judge of the Court, in accordance with article 31 al. 2
C.C.P.
Litigators should note, however, that some of the decisions rendered by the Court and its judges since the coming into force of article 211 al. 2
C.C.P.
seem to herald, if not initiate, a break with the Court’s position of the last eight years on the need for permission to appeal the first judgment rendered on the merits of a split proceeding, in the absence of any legislative amendment directly affecting the status of such a judgment as an interlocutory “which decides part of the dispute” (article 211 al. 2 only deals with the point at which the right of appeal attached to such a judgment can be exercised, i.e. a separate modality).
Indeed, in Attorney General of Canada v. Métro Excavation inc.[9]Since the new article 211 al. 2
C.C.P.
has come into force, an application for leave to appeal a first judgment rendered on the merits of a divided proceeding “is no longer permitted”.[10]although this article does not actually contain any explicit text to this effect. Further on in the same judgment, it is mentioned that considering the amounts in dispute, it is likely that the first judgment will be subject to an appeal at law once the proceedings are over[11].
In the most recent judgment Construction Normand Turcotte inc. c. 9238-8859 Québec inc.[12]a panel of the Court also relied on article 211 al. 2 C.C.P. to determine that the simultaneous appeal of a first interlocutory judgment on the merits and the judgment terminating the proceedings had been properly filed, despite the fact that a check of the docket showed that no application for leave to appeal had been filed in respect of the first judgment.[13]. In view of the fact that under article 365 C.p.c., the Court had the power, even of its own motion, to dismiss the appeal if it had been irregularly filed, and considering that it did not avail itself of this power in the present case, we can deduce that it saw no problem with the appeal of the first judgment proceeding with the appeal of the judgment terminating the proceedings, all as of right.
* * *
Regardless of what one may think of the appropriateness of the Court departing from its earlier position on the characterization of the first judgment rendered on the merits of a split proceeding as an interlocutory one that ” decides part of the dispute “We would have expected the Court to provide more complete and, above all, clearer reasons should it choose to do so, particularly given the ardour with which it has defended this characterization in the past.[14].
As things stand, the state of the law on the question of whether or not permission is required to appeal the first judgment rendered on the merits of a split proceeding is not sufficiently clear or settled. Authors Juliette Vani and Vincent Ranger raised this issue in their most recent comments on article 31.
C.p.c.
suggesting that “pending further clarity, prudent counsel may wish to file both a statement of appeal and an application for leave to appeal justifying the granting of leave with respect to the conclusions relating to the judgments rendered in the divided proceeding”.[15]. We can only agree with this suggestion.
That said, if the Court is indeed breaking with its previous jurisprudence, and wishes to offer easy-to-follow reasons why leave to appeal is not required to appeal a first judgment rendered on the merits of a split proceeding, it can simply draw on the reasons in Javanmardi v. Collège des médecins du Québec2013 QCCA 306, which are perfectly transposable to today’s legislative context.
The Javanmardi v. Collège des médecins du Québec and the principle of a single judgment on the merits of a split case
The stop
Javanmardi
judgment was handed down on February 19, 2013, just two months before the bill introducing the new
Code of Civil Procedure
to the National Assembly[16]. Moreover, considering that the legislator is deemed to know the law and the state of jurisprudence, including with regard to the splitting of proceedings[17]we can presume that he was well aware of this ruling and the reasons behind it when he began the transition to the new
Code
.
In any case, in Javanmardiit was not the temporal provision of article 273.2 in fine a.C.P.C. which directly explained that permission was not required to appeal a first judgment rendered on the merits of a split proceeding, but rather article 29 al. 2 a.C.P.C.which essentially read as follows:
Art. 29 al. 2
a.C.P.C.
However, an interlocutory decision rendered during the trial is not subject to immediate appeal and can only be challenged on appeal from the final judgment, unless it rejects an objection to the evidence […]”.
Article 29 al. 2
a.C.p.c
.
is the equivalent of the current article 31 al. 4
C.p.c.
[18].
Here’s how it was applied in conjunction with article 273.2
a.C.P.C.
at
Javanmardi
:
[42] As for the
judgments rendered
before
or during the summary trial
,
they constitute interlocutory judgments
(art. 29, para. 3
C.p.c.
) and, like all judgments of this nature, are subject to arts. 29 and 511
C.p.c.
(9052-1550 Québec inc. c. National Bank of Canada2006 QCCA 64, Hilton J., ruling as sole judge). So..,
during the trial, only certain interlocutory judgments
concerning objections to evidence
may be appealed to the extent provided for in art. 29 and 511
C.C.P.
[…] [45] Or,
the practice has developed of adjourning the hearing between these two phases
for a variety of reasons. […]
[46] Regardless of the reason for the decision to proceed in two stages significantly separated in time rather than in a single stage as envisaged by art. 54 C.p.c., the result is two distinct judgments, much like in criminal matters[9], one constituting a verdict or finding of guilt and the other an imposition of penalty or sentence. The latter will put an end to the contempt proceedings and constitutes, without a shadow of a doubt, a final judgment within the meaning of the Procedural Code. It may therefore be appealed as of right under art. 26, para. 1(3) C.p.c.
[47] However, once a guilty verdict has been handed down, the judge is not relieved of the contempt proceedings, since he or she must subsequently impose a sentence. The proceedings are therefore still in progress. In this context,
the judgment on guilt can only be considered as an interlocutory judgment within the meaning of the Code of Procedure, even if it partly pronounces on the merits of the dispute[19]
and entails serious consequences for the party cited, as it is now liable to imprisonment.
[48] Can we then appeal as of right? No, since this is not a judgment covered by art. 26 C.p.c . Then, with permission under art. 29 and 511
C.p.c.
? Neither, since it was issued in the context of an uncompleted trial (art. 29, para. 2
C.p.c.
)
.
[49] In another recent ruling,
Family law – 122617
2012 QCCA 1721, a panel of the Court composed of Morin, Dutil and Bich JJ. concluded that the decision of the judge hearing the contempt proceedings to postpone sentence pleadings until a later date, after having found the person summoned guilty of contempt, in fact constituted a splitting of proceedings governed by art. 273.2
C.p.c.
: […]
[50] In other words, in view of the text of art. 273.2
C.p.c
.
the Court concludes that there is no right of appeal from the judgment of conviction, and that the right of appeal from the judgment of conviction is stayed until final judgment. Just recently, in Chamandy v. Chartier2013 QCCA 161, another panel, composed of Morissette, Kasirer and Fournier JJ. applied this ruling and declared an appeal from the judgment of conviction improperly filed. On the other hand, once a sentence has been passed, the person named can appeal the verdict.
[51] It also follows, as pointed out a few months ago by another panel of the Court composed of Justices Pelletier, Hilton and Wagner (now of the Supreme Court) in the decision Droit de la famille – 125832012 QCCA 508, that, despite the presence of two separate judgmentsone on conviction and the other on sentence, neither is a complete judgment on the merits and, consequently, only one award of costs is possible: […].
To sum up,
the judgment of conviction and the judgment of sentence
are two parts of the same whole
.
[52] It follows from my analysis of the relevant provisions of the
Procedural Code
and our recent case law that the judge hearing a contempt summons should adhere to a process that complies with art. 54 C.p.c.The judge can either ask the parties to comment on the sentence once the conviction has been handed down, unless the parties or one of them convinces him that it is preferable to split the two stages by adjourning the trial. Before agreeing to split, the judge will have to take into account the fact that splitting is, in principle, not intended by the legislator in matters of contempt, as indicated by the words “if it [le jugement] entails conviction, it must indicate the penalty imposed” (art. 54 C.p.c.), and remember that the purpose of a severance is ” [d’]to avoid complex, unnecessary or unfounded evidence, or to promote settlement of the dispute. In such cases, a spin-off is likely to reduce costs and lead times appreciably”. When it is the person summoned for contempt who opposes the demerger, he will have to be extra careful to avoid prejudice to the latter
the fact that, in the event of a conviction, this will result in the postponement of its right of appeal
.
[53] In this case, the only final judgment is the sentencing judgment handed down on August 25, 2010. It alone can therefore be the subject of an appeal as of right under art. 26, para. 1(3)
C.p.c.
As for the judgment finding the appellant guilty, rendered on May 27, 2010, it must be declared that
it could not be appealed before sentencing
.
[Cross-references omitted; underlining and boldface added].
For the sake of clarity, please note that if the appeal of the first judgment in
Javanmardi
was not subject to the requirement of leave to appeal, it’s not because it could have been artificially characterized as a “final judgment” or anything of the sort. On the contrary, it was precisely because it was a judgment rendered in the course of proceedings, and more specifically a judgment rendered “in the course of investigation” within the meaning of article 29 al. 2.[20]. This meant that, in addition to seeing the exercise of the right of appeal attached to it be
suspended
by virtue of article 273.2
a.C.P.C.
,
the first judgment could only be “called into question” on appeal from the last judgment, in accordance with article 29 al. 2
a.C.P.C.
In a way, article 29 al. 2
a.C.P.C.
enshrined the principle, reflected in particular in paragraph 51 of
Javanmardi
according to which all judgments rendered on the merits of a case that has been divided (formally or de facto) are deemed to have been rendered on the merits.
de facto
) were to be considered as parts of the same whole, and treated as such for the purposes of an appeal. This same principle was also at the heart of the reasons rendered by Justices Bich, Vézina and Baudouin as single judges, respectively in Youth protection – 122[21], Aliments Breton (Canada) inc. c. Bal Global Finance Canada Corporation[22] and Yves Desgens inc. c. Rioux[23]all cases in which there had been de facto splits.
de facto
and in which we refused to allow an appeal from a first judgment on the merits to proceed as long as the merits hearing had not been completed.[24].
* * *
The principle of the unicity of judgments rendered on the merits of a split proceeding, as well as the Court’s application of article 29 al. 2 a.C.P.C., have been taken into account. a.C.P.C. (the equivalent of the current article 31 al. 4 C.C.P.) in Javanmardi are entirely compatible with the current legislative context, especially since the temporal rule of former article 273.2 in fine C.p.c. has been restored. If they constituted a sufficient basis for dismissal under the former
Code
The fact that permission may have been necessary to appeal from a first judgment rendered on the merits of a split proceeding[25]They also seem to us amply sufficient to explain, and above all justify, why permission to appeal is not necessary under the new
Code
at least for the time being.
In any event, given the importance of the issues at stake for litigants and, above all, the potentially disastrous consequences of failing to file an application for leave to appeal in situations where it is genuinely required, one can only hope that the Court of Appeal or its judges will soon offer more elaborate reasons than those contained in the decisions. Attorney General of Canada v. Métro Excavation inc.[26] and Construction Normand Turcotte inc. c. 9238-8859 Québec inc.[27] to confirm whether, and explain why, permission is always required to appeal the first judgment rendered on the merits of a split proceeding, regardless of when the right of appeal attached to said judgment can be exercised. Clarity and predictability of the law are at stake.
Notes :
- Family law – 1619832016 QCCA 1314, see in particular paras. 20-21 and 25-26.
- Bill 8, ” An Act to improve the efficiency and accessibility of justice, in particular by promoting mediation and arbitration and by simplifying civil procedure in the Court of Québec”, 43rd Leg. (Qc), 1st Sess. 2023 (assented to March 15, 2023).
- Journal des débats de la Commission des institutions, 43e legislature, 1re session, February 22, 2023, vol. 47, n° 5.
- An Act to improve the efficiency and accessibility of justice, in particular by promoting mediation and arbitration and by simplifying civil procedure in the Court of QuébecL.Q. 2023, c. 3, art. 6 and 46 (1o).
- Honeywell International inc. c. Bombardier inc.2024 QCCA 190 (single issue) [
Honeywell
]. - Ibid.see in particular paras. 21, 23, 44, 49 and 50.
- c. Puskas[1998] 1 R.C.S. 1207.
- Honeywellsupra, note 5, para. 43.
- Attorney General of Canada v. Metro Excavation Inc.2023 QCCA 1011.
Ibid
.
para. 5.
Id
.
para. 24.- Construction Normand Turcotte inc. c. 9238-8859 Québec inc.2024 QCCA 175, paragr. 7-11.
- No 200-09-700087-239.
- See for example Allianz Global Risks US Insurance Company v. SNC-Lavalin Inc.2023 QCCA 666, paragr. 41-42, application for leave to appeal to the Supreme Court dismissed, February 22, 2024, no.o 40847 [
Allianz
]. - Juliette Vani and Vincent Ranger, “Article 31” in L. Chamberland (ed.), Le Grand Collectif. Code of civil procedure: Commentaries and annotations8th edition, vol. 1 “Articles 1 to 390”, Cowansville, Éditions Yvon Blais, 2023, EYB2023GCO38.
- National Assembly,
Journal des débats
, 40e legislature, 1re sess., April 30, 2013, vol. 43, no 45, p. 28. - Honeywell, supranote 5, para. 32.
- Allianz, supranote 14, para. 43.
- In Aliments Breton (Canada) inc. c. Bal Global Finance Canada Corporation2008 QCCA 1420 (single issue), at paragr. 10-11, Judge Vézina aptly pointed out that the wording of article 29
a.C.P.C.
must be seen in the context of the time of its adoption, in 1965, long before anyone had even considered that the merits of a case could eventually be decided by more than one judgment [?
Aliments Breton
]. - It should be noted that, in Douek v. Township of Brossard2016 QCCA 1884, the Court stated that it was following the teachings of Javanmardibut in fact applied it in a manner contrary to those teachings, seeming to understand that “interlocutory judgments” and “judgments rendered in the course of proceedings” were mutually exclusive categories, which is obviously not the case (see articles 29, para. 2-3 a.C.P.C.and 31 al. 1 and 4 C.C.P.). For example, compare paragr. 29 to 31 from
Douek
where
Javanmardi
is incorrectly quoted, along with paragr. 14, still in
Douek
where
Javanmardi
is correctly quoted.
Youth Protection – 122
2012 QCCA 15 (single issue), application for leave to appeal to the Supreme Court dismissed, July 19, 2012, no.o 34715, para. 37-41.- Food Breton, supranote 19, para. 5-14, 22 and 28.
- Yves Desgens Inc. c. Rioux[1996] RDJ 326, 1996 CanLII 6397 (C.A.) (single issue), par. 7-8. This decision was handed down on March 29, 1996, 1 month before the bill was presented to the French National Assembly on April 25, 1996, under which the split of the body was to become law.
Code of Civil Procedure
the
Bill 7, An Act to amend the Code of Civil Procedure, the Act respecting the Régie du logement, the Jury Act and other legislative provisions.
- See also, by analogy, the following cases
Family law – 12583
2012 QCCA 508, paragr. 7, quoted in para. 51 in
Javanmardi
and Attorney General of Quebec v. Beaulieu2021 QCCA 1305, in which Judge Bich explains, at paragr. 48-55, that in order to preserve the uniqueness of judgment and accord with the spirit of the
Code of Civil Procedure
it is preferable to avoid fragmenting a judgment in order to distinguish its different portions (in this case, in matters of objection), even if, conceptually, these portions can be seen as individual judgments. - See in particular para. 48 of Javanmardi.
- Attorney General of Canada v. Metro Excavation inc.2023 QCCA 1011.
- Construction Normand Turcotte inc. c. 9238-8859 Québec inc.2024 QCCA 175, paragr. 7-11.