Executive Summary: Key Legal and Evidentiary Issues

• Leave to appeal was sought from a Superior Court judgment that granted in part the respondents' application to dismiss expert reports disclosed beyond the three authorized by an October 5, 2023 case management judgment.
   
• At issue was whether leave was governed by article 31 C.C.P., which applies to decisions akin to upholding an objection to evidence, or article 32 C.C.P., under which a case management measure is assessed for unreasonableness.
   
• Reviewing Court of Appeal case law, Justice Hardy drew the principle that a management judgment preventing essential or likely relevant evidence would fall under article 31, subject to deference to the case management judge.
   
• The applicants' written contestation attached no sworn statement and no letter from the experts attesting to their inability to give an opinion on all the damage caused by the fire.
   
• All but possibly one of the eight reports predated the applicants' June 15, 2025 amended case protocol, which listed only three expert reports.
   
• Under either article, Justice Hardy refused leave, finding the decision not unreasonable and the interests of justice against granting leave in a case lacking a high level of complexity.
   

Facts of the case

9016-7404 Québec inc. (Ferme Sauvagine) runs an agricultural business specializing in dairy production and beef cattle fattening, and Hervé Garon is its majority shareholder. After a fire damaged the business, the two applicants sued Tourbières Lambert inc., which they hold responsible for the fire, and its insurer, Liberty Mutual Insurance. Their action, instituted on July 7, 2023, claims damages exceeding $4,000,000.

In a case management judgment dated October 5, 2023, Justice April of the Superior Court authorized only three expert reports: one in agronomy, one in forestry, and one on the cause of the fire. A request to file a chartered appraiser's report was specifically refused in light of the allegations in the amended originating application. That application stated that the company then intended to prove its loss through one report by an agronomist and another by a forestry engineer. On June 15, 2025, the applicants applied to extend the deadline for filing the application for inscription for trial and judgment. In the amended case protocol attached to that application, the applicants, like the respondents, indicated that three expert reports would be filed: one by an agronomist, one by a forestry engineer and one on the cause of the loss.

Barely three months later, the applicants disclosed eight expert reports from seven experts. These were one engineer's report on the cause of the fire, four agronomy reports, two forestry engineering reports and one real estate appraisal report. Seven of the eight concerned quantum, and counsel for the applicants maintained that none overlapped. Relying on the case management judgment, the respondents applied to dismiss the excess reports. On June 4, 2026, Justice Isabelle Germain granted that application in part. The applicants then sought leave to appeal, which Justice Éric Hardy of the Court of Appeal heard on August 27, 2026 and decided on September 1, 2026.

Policy and legislative provisions at issue

No insurance policy terms or contractual clauses were at issue. The application turned on provisions of the Code of Civil Procedure. Article 31 governs leave to appeal a decision akin to upholding an objection to evidence. Under article 32, the test is whether the decision or measure under appeal is unreasonable. The first instance judge relied on article 159, which provides for review of a case management judgment. She also relied on the second paragraph of article 232, which limits a party to one expert report per discipline or subject matter.

Several other provisions framed the Court of Appeal's analysis. Under article 158 paragraph 2 and article 232, case management judges have discretion over the necessity and number of additional expert reports. An expert's declaration under article 235 also figured in the timeline. Articles 9 and 19 concern the proper management of proceedings, and article 18 sets out the principle of proportionality. The Code's preliminary provision, which states that the Code is designed to ensure the accessibility and promptness of civil justice, completed the framework.

Reasoning and analysis

The applicants argued that the first instance judgment was equivalent to upholding an objection to evidence and deprived them of the right to present complete evidence of their loss, so article 31 applied. For their part, the respondents characterized it as a case management judgment under article 32 and argued it could not be called unreasonable.

Justice Hardy reviewed Charles v. Boiron Canada inc., 2019 QCCA 1339, Ville de Longueuil v. Cormier, 2022 QCCA 1496, and CIUSSS du Saguenay—Lac-Saint-Jean v. Dufour, 2026 QCCA 1073. Those decisions discuss the conflicting positions taken in Argroupe inc. v. 9181-1430 Québec inc., 2019 QCCA 212, and Schwob v. Goulet, 2022 QCCA 1336. From them, he drew the principle that a management judgment preventing a party from presenting essential, or at least likely relevant, evidence would fall under article 31. That characterization remains subject to the deference owed to a judge exercising management powers in keeping with proper case management and proportionality. Citing Sandor v. Santé Québec (Sir Mortimer B. Davis Jewish General Hospital), 2025 QCCA 1305, he added that proper case management is not solely the parties' concern and raises an issue of access to justice for all litigants.

Leave failed under either provision, so he did not choose between them. Justice Germain had gone beyond noting the excess reports. She assessed whether a real estate appraiser, three agronomists and two forestry engineers were warranted, and found that the case's complexity did not justify them. The timeline also weighed against the applicants: their June 15, 2025 protocol listed three reports, yet all but possibly one of the eight reports predated it. One undated report was the possible exception, its article 235 declaration having been signed on June 20, 2025.

In their written contestation, the applicants asserted complexity but attached no sworn statement and no letter from the experts attesting to their inability to give an opinion on all the damage caused by the fire. Counsel for the applicants also said the first instance judge had refused to let him call one of his experts at the hearing, which the minutes confirmed. Respondents' counsel explained that this testimony had not been announced and that he would not have been ready to respond had it been permitted. If quantum was truly so complex, Justice Hardy reasoned, the applicants could easily have shown it by sworn statement or letter and then sought review of the management judgment, which would have allowed the respondents to respond effectively. Instead, they acted as though that judgment had no force. Justice Hardy also found it difficult to understand why an agronomist and a forestry engineer could not, between them, quantify the applicants' loss. Counsel had argued that the respondents need not answer with as many experts, to show the additional reports would not add to their burden or cause delay. That argument only raised serious doubts about whether three agronomists and two forestry engineers were needed.

Justice Hardy concluded that the decision was not unreasonable and showed no apparent weakness. Nor did the interests of justice favour leave. More than two years had passed between the originating application and the disclosure of the additional reports without any request to revise the case protocol. The respondents were entitled to have a case that is not highly complex proceed promptly.

Ruling and overall outcome

Justice Hardy dismissed the application for leave to appeal from the Superior Court's June 4, 2026 judgment in file 250-17-001833-230, with legal costs. Tourbières Lambert inc. and Liberty Mutual Insurance were the successful parties, and the first instance judgment limiting the applicants' expert evidence stands. No monetary amount was ordered in their favour. Legal costs were awarded but not quantified, and the applicants' claim for damages exceeding $4,000,000 has not been decided.