Executive Summary: Key Legal and Evidentiary Issues

• Moshe Lefkowitz, a tenant of the building at the time of the fire, is claiming $84,999 from the building owners' insurer, and he disclosed 24 additional exhibits on July 16, 2026, nearly a year after the case was inscribed for trial.
   
• Desjardins Assurances générales inc. objected to the disclosure because it was late and because of the prejudice it caused at that stage of the case.
   
• Under article 248 of the Code of Civil Procedure, evidence must be disclosed no later than with the declaration accompanying the application for inscription, and undisclosed evidence may be produced at trial only with the court's authorization.
   
• Six factors drawn from Court of Appeal case law guided the analysis, including the reasons for the delay, the prejudice to each party, and the sound administration of justice.
   
• Although Lefkowitz gave no explanation for the delay and never sought authorization, the court found that the documents may be relevant and that some may be of definite importance to the dispute.
   
• Because no trial date had been set, the late disclosure would cause delay but not a postponement, and the court reserved Desjardins's right to claim compensation for the prejudice caused by the lateness.
   

Facts of the case

A fire broke out on September 24, 2018 in a building on Durocher Street in Montréal where Moshe Lefkowitz was living as a tenant. On April 6, 2022, he sued Desjardins Assurances générales inc., the insurer of the building's owners, in the Superior Court for $120,000. His originating application did not allege any exhibits. He reduced the claim to $84,999 on May 13, 2022, and at his initiative the case was transferred to the Court of Québec on May 19, 2022. On September 19, 2022, also at his initiative and with the consent of all parties concerned, the case was joined to other proceedings arising from the same fire.

Desjardins asked in June 2023 for a breakdown of the claim and supporting documents. In response, Lefkowitz's counsel supplied a priced list of items but no documents. At his examination on discovery on May 16, 2024, Lefkowitz undertook to identify purchase details and to provide receipts, notes, estimates and quotes. His November 4, 2024 answer stated that he could not trace receipts because several were lost in the fire and others in moves, many stores had closed and their owners could not be reached, and some shops did not keep transaction dates. His lawyers gave notice on December 9, 2024 that they would stop representing him, and he did not appoint new counsel despite a formal notice to do so. The same lawyer who had represented him at the start of the case later represented him for the April 23, 2026 settlement conference.

Desjardins's amended defence of September 4, 2025 stated that he had filed no exhibits and had failed to prove his damages. The joint application for inscription, filed September 15, 2025, listed four exhibits for Lefkowitz: a letter to a rabbi, an email exchange with Desjardins, and two reports from the City of Montréal and its fire department. None of them related to the amounts claimed. At the settlement conference, the joined cases settled, but Lefkowitz's case did not.

The day before the June 17, 2026 pre-trial conference, which he attended without counsel, Lefkowitz emailed Desjardins's counsel about 20 documents. The court ordered him to notify and file those documents, along with any others he intended to rely on, by July 10, 2026. It also authorized Desjardins to examine him on them and reserved Desjardins's rights to contest their filing and to obtain a supplementary expert assessment. With Desjardins's consent to additional time, Lefkowitz filed a notice on July 16, 2026 listing 24 documents: receipts dating back to 2007, estimates dated mostly in 2026, a 2018 construction estimate, and 23 photographs of part of the books damaged in the fire. Desjardins filed an objection on July 20, 2026 and amended it on July 29.

Policy and legislative provisions at issue

The decision does not examine any insurance policy terms. The dispute turned on the disclosure rules of the Code of Civil Procedure. Article 20 requires the parties to cooperate by informing each other of the facts and evidence they intend to rely on, at the time set by the Code or the case protocol. Under article 145, a plaintiff must list the exhibits supporting the originating application and communicate them to the defendant as soon as possible. Article 248 requires evidence to be disclosed no later than with the declaration accompanying the application for inscription and provides that undisclosed evidence may be produced at trial only with the court's authorization.

Reasoning and analysis

Justice Luc Huppé applied six factors from Protection incendie idéal inc. c. Produits contre le feu Tyco LP / Tyco Fire Products Ltd., 2020 QCCA 1629, and Modes Striva Inc. c. Banque Nationale du Canada, 2002 CanLII 34212 (QC CA): the reasons for the delay, the prejudice to each side, the responsibility of lawyer and client, the lawyers' conduct of the case, and the sound administration of justice. Because Desjardins's objection was not supported by a sworn statement, the court relied only on the record and the documents attached to the objection.

The court found that Lefkowitz had clearly breached his disclosure obligations. While represented by counsel, he filed a substantial claim with no supporting documents, answered the pre-undertakings request without proof, and took the position in answering his undertakings that he had kept no receipts. Desjardins's defence had put him on notice that his claim was unsupported. His inscription exhibits had nothing to do with quantum, and the new documents surfaced only after the settlement conference. At the hearing he offered no explanation for a delay of more than four years, could not satisfactorily say when he had obtained the documents, and had not sought authorization under article 248. Half of the listed documents [the dates listed in the notice indicate 13 of 24] predate his originating application, and several predate the fire by many years: two from 2007, four from 2011, one from 2012, and two from 2014.

Exclusion was nonetheless not the appropriate sanction. A summary review showed that the documents may be relevant at trial, and some may be of definite importance. Barring them, as Desjardins requested, could prevent Lefkowitz from presenting evidence essential to his rights, and that would be contrary to the sound administration of justice. The court noted that the absence of serious reasons for lateness is a relevant factor but not, on its own, a ground for refusal. Since no trial date had been set and no provisional roll call had been held, the disclosure would cause delay but not a postponement.

The court acknowledged the extra work Desjardins would face. That work includes verifying the truthfulness and authenticity of the exhibits [Desjardins's objection refers to twenty-three exhibits, while the notice lists 24 documents], possibly with an expert, re-examining Lefkowitz, and obtaining supplementary expert reports on quantum. Whatever the outcome of his claim, Lefkowitz must bear these consequences, since the situation is essentially the result of his failure to comply with legal requirements. Desjardins also argued that it had made decisions at the settlement conference based on the record as it stood. The court could not assess that argument because the settlement exchanges were confidential and there was no evidence on the point.

Ruling and overall outcome

The Court of Québec dismissed Desjardins's objection to the July 16, 2026 notice of disclosure, making Lefkowitz the successful party on this procedural motion; the documents were not declared inadmissible. The court also formally noted that the notice was late and reserved Desjardins's right to claim compensation from Lefkowitz for the prejudice caused by the lateness. No monetary amount was ordered or awarded. Legal costs will follow the outcome of the case, and the $84,999 claim remains undetermined, with no trial date yet set.