Executive Summary: Key Legal and Evidentiary Issues

• A construction contractor sought to file a forensic accounting expert report after its joint expert request was denied.

• The Superior Court rejected the move, invoking res judicata based on an earlier management judge’s decision.

• The applicant claimed the new report was distinct and argued that the judge erred by not assessing its necessity.

• The prior ruling was interpreted as a broader rejection of any additional expert evidence.

• The Court of Appeal emphasized that the managing judge's reasoning applied to both joint and individual reports.

• Permission to appeal was denied due to the absence of any reasonable chance of success.

Facts and procedural background

The case involves a contractual dispute between Excavations Marchand & Fils inc., a construction company, and Hydro-Québec. In January 2020, the contractor sued Hydro-Québec for unpaid amounts allegedly owed under a construction contract. As part of the litigation, both parties had already submitted expert reports to address the value of the contractor’s claim. After Hydro-Québec filed its defence in March 2024, Excavations Marchand argued that an additional forensic accounting report was necessary to determine whether the payments made to them were less than what was owed under a regulated payment regime and, if so, by how much.

Initially, the contractor proposed that both parties agree to commission a joint expert report on this financial question. Hydro-Québec opposed this suggestion, and the managing judge denied the request on June 26, 2024. Without appealing that ruling, Excavations Marchand informed Hydro-Québec that it would proceed independently to obtain its own expert report. Hydro-Québec again objected. This procedural dispute led to a further hearing and a decision on March 13, 2025, by the Superior Court.

The trial judge, Justice Florence Lucas, dismissed the contractor’s new case management notice, finding that the earlier ruling rejecting the joint expert had a binding effect. Relying on the doctrine of res judicata, she ruled that the managing judge had already implicitly or explicitly concluded that no further expert evidence was necessary or appropriate. She viewed the new notice as an attempt to circumvent that earlier decision.

Court of Appeal decision

Excavations Marchand applied to the Quebec Court of Appeal for permission to appeal the March 2025 ruling. The contractor maintained that the two requests were different: the first sought a joint report; the second proposed an independent expert. It argued that the trial judge had erred by not separately assessing whether the independent report was needed.

Justice Peter Kalichman rejected the application. He reasoned that the managing judge’s conclusions were not limited to the format of the report (joint vs. individual) but addressed the substantive question of whether further expert evidence was necessary at all. The managing judge had clearly stated that the court already had sufficient information to assess the value of the claim. That reasoning was essential to the judgment and could not be treated as mere commentary.

The Court held that revisiting the issue would contradict the original ruling and confirmed the application of res judicata. Since no clear error or reasonable prospect of success had been shown, the Court of Appeal denied the request for leave to appeal and ordered the applicant to pay costs.