Executive Summary: Key Legal and Evidentiary Issues

• J.A.C.K.S. Construction Inc. applied to strike allegations and withdraw exhibits that Domaine Qalm Properties Inc. had appended to its appeal brief, arguing they were never filed before the trial judge.
   
• A party cannot include in its brief documents not produced in evidence at first instance unless it brings an application for new evidence.
   
• Grounds of appeal should not be developed by relying on and referring to evidence absent from the first-instance record.
   
• The appellant conceded that the challenged exhibits were not introduced at trial, except for exhibit P-9.1.
   
• Uncertainty over whether P-9.1 had been withdrawn from the record led the judge to keep it and the passages referring to it, leaving its admissibility to the panel hearing the appeal.
   
• Part of paragraph 49 was struck because it relied on exhibit R-8, which was not produced at first instance and was allegedly filed in a parallel case between the same parties.
   

Facts of the case

Domaine Qalm Properties Inc. appealed to the Quebec Court of Appeal in a matter arising from first-instance file 550-17-013734-247, with J.A.C.K.S. Construction Inc. as respondent and Chanelle Monast as impleaded party. The decision does not describe the merits of the underlying dispute or the content of the judgment under appeal.

The respondent asked the Court to remove exhibits P-6, P-9, P-9.1, P-10, D-7, D-9 and D-9.1 to D-9.7, which the appellant had filed as appendices to its appeal brief. According to the respondent, these exhibits were never filed before the trial judge because the parties had agreed before trial to withdraw them from the record. It also sought partial removal of paragraph 3 and paragraphs 49, 59, 64 and 65 of the appellant's brief, along with footnotes 6, 7, 45, 48 and 49, all of which referred to those exhibits.

Justice Christine Baudouin ruled on the application on September 29, 2026, at a continuation of the hearing held on September 25, 2026. Neither the parties nor their counsel attended, having been exempted from appearing.

Policy and legislative provisions at issue

The application was brought under articles 370, 378 and 380 of the Code of Civil Procedure and articles 48 and 51 of the Regulation of the Court of Appeal of Québec in Civil Matters. The decision cites these provisions without reproducing or paraphrasing their text, and it does not discuss any contractual clauses.

Reasoning and analysis

Justice Baudouin agreed with the respondent's core argument. A party may not include in its brief documents that were not produced in evidence at first instance unless it brings an application for new evidence, and it should not build its grounds of appeal by relying on and referring to such evidence.

The appellant acknowledged that the challenged exhibits had not been introduced into evidence before the trial judge, with one exception. For exhibit P-9.1, the documents submitted did not make clear whether it had actually been withdrawn from the record. Given that uncertainty, the judge retained paragraphs 3, 59 and 65 and footnotes 7, 45 and 49 to the extent they referred to P-9.1, and left it to the panel hearing the appeal to decide whether paragraph 3, exhibit P-9.1 and the related passages rest on relevant and admissible evidence.

The remaining exhibits had to come out of the brief, together with the passages relying on them. Paragraph 49 was struck in part because it referred to exhibit R-8, a document not produced at first instance and allegedly filed in another case between the same parties. The removed passage described an amount lower than a municipal assessment of $169,100 as of July 1, 2023, drawn from R-8, which consisted of municipal assessments of the lots and had been communicated to the opposing party in parallel file 550-17-013782-253. Paragraph 64 and footnote 48 were struck entirely, as were the reference to P-6 in footnote 6 and the references to P-10 in footnotes 45 and 49.

Ruling and overall outcome

The Court granted J.A.C.K.S. Construction Inc.'s application in part. It ordered exhibits P-6, P-9, P-10, D-7, D-9 and D-9.1 to D-9.7 withdrawn from the Court record, struck the R-8 passage from paragraph 49, struck paragraph 64 and footnote 48, and removed the references to P-6 and P-10 from footnotes 6, 45 and 49. Domaine Qalm Properties Inc. was ordered to serve on the respondent and file a corrected brief, including its electronic version, on or before October 6, 2026, and the deadline for the respondent's brief was extended to December 7, 2026. The respondent succeeded in part, while exhibit P-9.1 and the passages tied to it remain in the brief for the appeal panel to assess. The order was made with legal costs, but the decision states no monetary amount, and the $169,100 figure appears only in the struck passage rather than as any sum awarded.