2019 QCCA 1152, 2019 QCCA 1152

Unofficial English Translation of the Judgment of the Court Ville de Montréal c. Litwin Boyadjian inc. (Syndic de Société de vélo en libre-service) 2019 QCCA 1152 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-026764-175 (500-11-045951-148) DATE: July 2, 2019 BEFORE THE HONOURABLE MARIE-FRANCE BICH, J.A. In the matter of the bankruptcy of Société de vélo en libre-service VILLE DE MONTRÉAL APPLICANT v.

LITWIN BOYADJIAN INC. , in its capacity as trustee in the bankruptcy of Société de vélo en libre-service RESPONDENT JUDGMENT [ 1 ] Relying on art. 390, para. 2 C.C.P. and s. 65.1(2) of the Supreme Court Act , [1] the applicant seeks a stay of the execution and effect of the judgment rendered by the Court in the present file on May 7, 2019, [2] which judgment it intends to appeal to the Supreme Court.

Said judgment confirms the judgment rendered by the Superior Court on April 18, 2017, [3] which, among other things, ordered the applicant to pay $15,915,069 to the respondent (with interest and the additional indemnity as of October 30, 2014).

Our Court also added a conclusion to the trial judgment: it declared the applicant to be a creditor in the bankruptcy for an amount of $31,746,575 and authorized it to file a claim with the respondent. [ 2 ] Clearly, the applicant's focus is to stay the execution of the monetary order rendered against it, although that order is intimately tied to the other declaratory conclusions (nullity of a loan granted by the applicant to the bankrupt, the Société de vélo en libre-service, and nullity of a hypothec granted by the latter; the right of the applicant to file a claim for $31,746,575 with the respondent within the scope of the bankruptcy). * * [ 3 ] The preliminary question that must be answered is the following: Given the terms of s. 196 of the Bankruptcy and Insolvency Act , [4] does a judge of the Court of Appeal have jurisdiction to make the order sought? [ 4 ] It is useful, for a proper understanding of the issue, to reproduce ss. 194 and 196 B.I.A. , s. 65.1 S.C.A. and art. 390 C.C.P.: Bankruptcy and Insolvency Act 194.

The decision of the Court of Appeal on any appeal is final and conclusive unless special leave to appeal therefrom to the Supreme Court of Canada is granted by that Court. 194. La décision de la Cour d’appel sur tout appel est définitive et sans appel, sauf autorisation spéciale, accordée par la Cour suprême du Canada, d’en appeler à ce tribunal. 196. An appeal to the Supreme Court of Canada does not operate as a stay of proceedings, except to the extent ordered by that Court. 196. Un appel à la Cour suprême du Canada ne peut avoir pour effet de suspendre les procédures, sauf dans la mesure où celle-ci l’ordonne.

Supreme Court Act

65.1

(1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate. 65.1

(1) La Cour, la juridiction inférieure ou un de leurs juges peut, à la demande de la

partie qui a signifié et déposé l’avis de la demande d’autorisation d’appel, ordonner, aux conditions jugées appropriées, le sursis d’exécution du jugement objet de la demande.

(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.

(2) La juridiction inférieure ou un de ses juges, convaincu que la

partie qui demande le sursis a l’intention de demander l’autorisation d’appel et que le délai entraînerait un déni de justice, peut exercer le pouvoir prévu au paragraphe (1) avant la signification et le dépôt de l’avis de demande d’autorisation d’appel.

(3) The Court, the court appealed from or a judge of either of those courts may modify, vary or vacate a stay order made under this section.

(3) La Cour, la juridiction inférieure ou un de leurs juges peut modifier ou annuler le sursis ordonné en vertu du présent article. Code of Civil Procedure 390. A decision of the Court of Appeal is enforceable immediately and bears interest from the date it is rendered, unless it specifies otherwise. Its execution, as regards both the principal and any legal costs, is carried out by the court of first instance. 390. L’arrêt est exécutoire immédiatement et il porte intérêt à compter de sa date, sauf mention contraire.

Il est mis à exécution, tant pour le principal que pour, le cas échéant, les frais de justice, par le tribunal de première instance. However, the Court of Appeal or one of its judges, on an application, may order execution stayed, on appropriate conditions, if the party shows that it intends to bring an application for leave to appeal to the Supreme Court of Canada. Cependant, la Cour d’appel ou l’un de ses juges peut, sur demande, ordonner, aux conditions appropriées, d’en suspendre l’exécution, si la

partie démontre son intention de présenter une demande d’autorisation d’appel à la Cour suprême du Canada. [ 5 ] In addition, ss. 35, 41 and 52 S.C.A. are also relevant : 35. The Court shall have and exercise an appellate, civil and criminal jurisdiction within and throughout Canada. 35. La Cour est la juridiction d’appel en matière civile et pénale pour l’ensemble du Canada. 41. Notwithstanding anything in this Act, the Court has jurisdiction as provided in any other Act conferring jurisdiction.

Malgré les autres dispositions de la présente loi, la Cour a la compétence prévue par toute autre loi attributive de compétence. 52. The Court shall have and exercise exclusive ultimate appellate civil and criminal jurisdiction within and for Canada, and the judgment of the Court is, in all cases, final and conclusive. 52. La Cour est la juridiction suprême en matière d’appel, tant au civil qu’au pénal; elle exerce, à

titre exclusif, sa compétence sur l’ensemble du Canada; ses arrêts sont définitifs et sans appel. [ 6 ] Our Court and its judges have rarely considered the meaning to be given to s. 196 B.I.A. in light of s. 65.1 S.C.A. or art. 390, para. 2 C.C.P. , and it so happens that the two judgments that have ruled on the matter are contradictory. [ 7 ] In Industries Davie inc. (Syndic de) , [5] Delisle, J.A. took into account the jurisdiction granted by ss. 35 and 41 S.C.A. and relied on the decision in Boily v. McNulty [6] to conclude that s. 196 B.I.A. prevails over s. 65.1 S.C.A. and, similarly, over art. 522.1 f.

C.C.P. (the predecessor to art. 390, para. 2 C.C.P. ): it would therefore be up to the Supreme Court to decide whether or not to stay the effects of a judgment of the Court of Appeal contemplated in an application for leave to appeal or in an appeal (if leave has been granted). In so doing, he gave precedence to the specific legislation ( s. 196 B.I.A. , contemplated in s. 41 S.C.A. ) over the general legislation (ss. 35 and 65.1 S.C.A. and art. 522.1 f. C.C.P. ).

Delisle, J.A. nevertheless decided as follows: [ translation ] [18] Since the respondent may be faced with a juridical vacuum until it addresses itself to the authority of competent jurisdiction, it is appropriate to stay the effect of this judgment until the Supreme Court of Canada has ruled on the respondent's application for a stay of execution of the January 11, 2000 judgment or until the respondent is barred from presenting such an application, whichever date is earlier. […] CONSEQUENTLY, THE UNDERSIGNED:

[20] DECLARES that the respondent's motion is inadmissible; [21] STAYS the effect of this judgment until the Supreme Court of Canada has ruled on the respondent's application for a stay of execution of the January 11, 2000 judgment or until the respondent is barred from presenting such an application, whichever date is earlier. [ 8 ] In 2012, in Paré c. Caisse Desjardins de La Baie , [7] Giroux, J.A. ruled entirely otherwise. He noted that s. 65.1 S.C.A. was enacted well after s. 196 B.I.A. and he concluded that the new provision should prevail over the older provision.

He stated the following: [ translation ] [15] With all due respect, this judgment [ Industries Davie ] disregards the fact that s. 65.1 of the Supreme Court Act , which grants concurrent jurisdiction to the Court of Appeal of the province and to the Supreme Court with respect to stays of execution, was enacted more than 20 years after s. 196 BIA . [Reference omitted]

Section 196, therefore, states the broad rule that an appeal to the Supreme Court from a judgment of the Court of Appeal does not, in and of itself, result in a stay. In light of s. 65.1 of the Supreme Court Act , which was enacted in 1994, it cannot be construed as granting only the Supreme Court exclusive jurisdiction to order a stay. [ 9 ] Furthermore, he criticized the judgment in Industries Davie for being somewhat inconsistent: [ translation ] [17] Lastly, the result of the judgment rendered in 2000 is logically unsatisfactory. It rules that the Supreme Court has exclusive jurisdiction to order a stay.

At the same time, it obliges the Court of Appeal, which, however, has no jurisdiction over the matter, to automatically order a stay for the entire period during which the application for leave to appeal is being prepared and submitted to the Supreme Court. 21 The legislature could not have sought such an outcome. _________ 21 See the excerpt of the judgment of the judge sitting alone in 2000, supra , note 4, cited hereinabove in para. 8. [8] [ 10 ] In fact, with all due respect, Delisle, J.A.'s ruling is not exactly to that effect: Indeed, his order does not extend to the [ translation ] “entire period during which the application for leave to appeal is being prepared and submitted to the Supreme Court” but, rather, seeks to stay the effect of the decision of the Court of Appeal until the Supreme Court rules on the application for a stay which will have to be submitted to it.

To this end, as we have seen, while Delisle.

J.A. declared that the application for a stay presented to him was inadmissible (because, according to him, only the Supreme Court had jurisdiction pursuant to s. 196 B.I.A. ), he stayed the effect of his own judgment [ translation ] “until the Supreme Court of Canada has ruled on the respondent's application for a stay of execution of the January 11, 2000 judgment or until the respondent is barred from presenting such an application, whichever date is earlier”. [9] That said, without necessarily adopting Giroux, J.A.'s criticism, it must nevertheless be conceded that the basis for the solution proposed by Delisle J.A – while quite ingenious – is not clear. [ 11 ] Turning back to the judgment in Paré , Giroux, J.A. also pointed out that the ruling in Industries Davie has not been followed elsewhere in Canada and that the Supreme Court itself has twice recognized that, where there is a bankruptcy, courts of appeal or their judges can validly exercise the powers conferred upon them by s. 65.1 S.C.A. ( Richter & Partners inc. v.

Ernst & Young [10] and Koska (Bankrupt) v. Alberta Treasury Branches [11] ). [ 12 ] If we exclude the rulings in Industries Davie and Paré , it is true that the

interpretation of s. 196 B.I.A. seems to have been hardly considered in the jurisprudence (including the case law of the other Canadian provinces).

There are certainly a few judgments in which appellate courts (or, more generally, one of their judges sitting alone), when seized of an application for a stay in a bankruptcy matter, have ruled under s. 65.1 S.C.A. , albeit without discussing s. 196 B.I.A. or mentioning it. [12] Commentators have not been any more loquacious, and even authors Houlden, Morawetz and Sarra say nothing on the matter, [13] except for the following sentence: If leave to appeal to the Supreme Court of Canada is granted, the appeal does not operate as a stay of proceedings except to the extent ordered by that court: s. 196. [ 13 ] The sentences that follow the foregoing excerpt deal with the application of s. 65.1 S.C.A ., without any specific transition . [ 14 ] The issue, however, which, as we have seen, pits the new provision (i.e., s. 65.1 S.C.A. ) against the former provision (i.e., s. 196 B.I.A. ) and the specific provision (i.e., s. 196 B.I.A. , which follows up on s. 194 B.I.A. and deals specifically with appeals to the Supreme Court from decisions of an appellate court in bankruptcy matters) against the general provision (i.e., s. 65.1 S.C.A. , which forms part of the general scheme for appeals to that court) is an interesting one.

As Professors Côté, Devinat and Beaulac explain, we know that, according to the usual principles of

interpretation of legislation (which are but a guide, of course, and not imperative norms), specific legislation generally prevails over general legislation, even if the general legislation is more recent: In principle, then, the more recent statute takes precedence. But like every rule, this one has an exception. A more recent, general statute will not be construed as affecting an earlier, special statute: generalia specialibus non derogant .

Here is a typical justification of this practice: “When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly." [Reference omitted] The priority granted to earlier special legislation over more recent general provisions can also be viewed as an application of the rule of effectivity. By giving priority to the special provisions, the two laws each produce an effect: the earlier one continues to govern the

special situations for which it was adopted, while the more recent, general, law applies in all other cases. Application of generalia specialibus non derogant thus provides the most interpretat ively economical solution. [14] [References omitted] [ 15 ] Ruth Sullivan provides this explanation: §11.58 Implied exception ( generalia specialibus non derogant ). When two provisions are in conflict and one of them deals specifically with the matter in question while the other has a more general application, the conflict may be resolved by applying the specific provision to the exclusion of the more general one.

The specific prevails over the general: it does not matter which was enacted first.

In the absence of conflict, a specific provision prevails over a general one only if applying the general provision would render the specific one superfluous. [15] [References omitted] [ 16 ] Based on this principle, one might be tempted, as Delisle, J.A. did in Industries Davie , to conclude that, in the event of a conflict, the Supreme Court Act , a general statute governing appeals to the Supreme Court of Canada, and its s. 65.1, which sets out the general rule regarding stays, cannot prevail over s. 196 B.I.A. , a specific provision that deals with appeals to the Supreme Court in bankruptcy matters. [16] Consequently, only the Supreme Court could order a “stay of proceedings”, which includes staying the execution or effect of the judgment of an appellate court that is being appealed under s. 194 B.I.A. (which appeal is otherwise governed by the Supreme Court Act ). [ 17 ] To conclude otherwise would, at first glance, strip s. 196 B.I.A. of its purpose.

Conversely, concluding that s. 65.1 S.C.A. (which authorizes a court of appeal or one of its judges to stay the effect of a judgment appealed to the Supreme Court) must give way to s. 196 B.I.A. (which confers exclusive jurisdiction on the Supreme Court in such matters) seems consistent with the legislature's clearly stated intent that appeals to the Supreme Court in bankruptcy matters do not, in principle, entail a stay (irrespective of s. 65 S.C.A. ). This is entirely compatible with the principles underlying the diligent management of bankruptcies and with the scheme of the Bankruptcy and Insolvency Act .

It is therefore not unreasonable to suggest that the intention was to reserve the exclusivity of ordering a stay for the Supreme Court. [ 18 ] This conclusion, however, must be refined. [ 19 ] In Industries Davie , Delisle, J.A. concluded that, pursuant to s. 196 B.I.A. , the Supreme Court exercises its exclusive jurisdiction not only once it has granted leave to appeal, but also when it is seized of an application for leave to appeal: [ translation ] [11] What does the word "appeal" mean in s. 196 B.I.A. ?

Is it limited to an appeal permitted by a leave or does it encompass the entire appeal process? [12] In bankruptcy matters, leave to appeal is intrinsically (and at all times) related to the appeal before the Supreme Court of Canada. It cannot be dissociated from the appeal process.

This requirement leads to the inference that the word "appeal" in s. 196 B.I.A. includes its initiation. [17] [ 20 ] One might, however, disagree with this conclusion on the basis that the Bankruptcy and Insolvency Act clearly distinguishes between an appeal – referred to in s. 196 B.I.A. – and a leave to appeal – referred to in s. 194 B.I.A . It could be argued that this difference in terminology indicates that s. 196 B.I.A. applies only as of the moment the Supreme Court grants leave to appeal, which leaves the door open, in the meantime, for appellate courts and their judges under s. 65.1(1) S.C.A.

The advantage of such an

interpretation is that it would also reduce the contradiction between this provision and s. 196 B.I.A. , in a manner consistent with the rule of

interpretation that seeks conflict avoidance. [18] For this reason, it is the approach that will be favoured here. [ 21 ] The scope of application of s. 65.1 S.C.A. , in the context of a bankruptcy matter, requires an additional clarification, however. [ 22 ] Indeed, it can be argued that, while s. 196 B.I.A. overrides s. 65.1

(1) S.C.A. , it cannot override s. 65.1 (2) . [ 23 ] In that regard, s. 196 B.I.A. refers to an “appeal to the Supreme Court / appel à la Cour supreme ”: regardless of one's opinion as to when that appeal is formed, what happens when the applicant seeks a stay before even having made an application for leave to appeal to the Supreme Court, that is, where the applicant merely intends to seek leave, but has not yet acted upon that intention? [ 24 ]

Section 196 B.I.A. is silent on this subject, such that we must rely on the general legislation. This this is precisely the hypothesis contemplated in art. 390, para. 2 C.C.P. (which allows for a stay of execution of a Court of Appeal judgment if “the party shows that it intends to bring an application for leave to appeal to the Supreme Court of Canada / la

partie démontre son intention de présenter une demande d’autorisation d’appel à la Cour suprême du Canada ”), as well as in s. 65.1(2) S.C.A. , which grants “the court appealed from / à la juridiction inférieure ” or its judges “the power conferred by subsection (1)/ le pouvoir prévu au paragraphe (1) ”.

Based on the wording of s. 65.1(2) S.C.A. , the Supreme Court does not have this power before the application for leave to appeal is served and filed, which seems logical in light of the usual rules governing when courts are seized of the commencement of appeal proceedings. [ 25 ] Consequently, even if one were to conclude that s. 196 B.I.A. confers exclusive jurisdiction on the Supreme Court to order a stay as of the moment it has granted leave to appeal, thereby overriding s. 65.1(1) S.C.A. and depriving the appellate courts or their judges of the capacity to order such a stay, this would not cover situations falling under s. 65.1(2) S.C.A. or art. 390, para. 2 C.C.P. , which apply before the Supreme Court is seized of an appeal.

In such a case, an appellate court (or one of its judges) could validly rule on an application for a stay and, where applicable, order the stay, until the Supreme Court is seized of an application for leave to appeal. Thereafter, pursuant to s. 65.1(1) S.C.A. , it would continue to have jurisdiction to order such a stay, at least until the Supreme Court grants leave to appeal (given that s. 196 B.I.A. would come into play only as of that moment, in accordance with the

interpretation

favoured above – supra , para. [20]). [ 26 ] In the present case, the applicant has not yet filed its application for leave to appeal with the Supreme Court, but intends to do so in the near future.

Pursuant to s. 65.1(2) and art. 390, para. 2 C.C.P. , the undersigned could therefore order the stay sought by the applicant, until the Supreme Court is seized of an application for leave to appeal, and the undersigned could subsequently, this time pursuant to s. 65.1(1) S.C.A. , extend the stay, until the Supreme Court rules on the application for leave brought before it. [ 27 ] The foregoing having been said, we can now consider the judgments of Sopinka and Binnie, JJ. in Richter & Partners inc. v. Ernst & Young [19] and Koska (Bankrupt) v.

Alberta Treasury Branches , [20] both of which dealt with a bankruptcy. [ 28 ] In the first, an application for a stay was made to the Supreme Court under s. 65.1(1) S.C.A.

The applicant thought it would be preferable to turn to that court, arguing that “[i]t would seem somewhat strange for a court from which leave to appeal is being sought to be asked to say, or say inferentially, that it thinks that there is some merit in the application for leave to appeal its decision, i.e. this is not the same as seeking a stay where there is an unquestioned right of appeal and the sole question is the effect of the granting a stay”. [21] Sopinka, J. refuted the argument as follows: 4 With respect to the second point, this reasoning is at variance with the practice of this Court as set out in Esmail , supra .

However, the applicant can be excused for not referring to the case since it appears not to have been reported. [Reference omitted] But I do not agree that the judges of the courts of appeal would not be objective in assessing whether an appeal raises a serious issue . There are numerous provisions which require judges to make a similar determination notwithstanding that a decision on the issue has already been made. For example, until comparatively recent times, leave to appeal to this Court was often granted by the court appealed from pursuant to s. 37 of the Supreme Court Act .

That provision is still in the Act and fell into disuse because courts of appeal decided that this Court should determine its own workload and not by reason of any reluctance to reassess the merits for the purpose of identifying an issue fit to be decided by this Court. 5 The first reason referred to might in some circumstances be sufficient although there is usually no impediment to having the two applications proceed concurrently in different fora. In view of my disposition of the application, it is unnecessary to express any final conclusion on this point.

I have concluded that the balance of convenience favours dismissal of the application subject to certain conditions. First, the hearing of the application for leave is to be expedited. I would grant the extension of time as requested. Second, the application for a stay is dismissed without prejudice to it being renewed before a judge of the Court of Appeal.

Third, if leave to appeal is granted, [reference omitted] the application may be renewed before me subject to any disposition that may have been made by a judge of the Court of Appeal . [Emphasis added] [ 29 ] Sopinka, J., it should be noted, did not refer to s. 196 B.I.A. , but no doubt was aware of that provision. As for the ruling in Esmail , [22] which dealt generally with the stay referred to in s. 65.1(1) S.C.A. and with the jurisdiction of the appellate courts, it fully recognized the authority of those courts and their judges with respect to such stays.

From there, it is but one step to conclude that Sopinka, J. did not see s. 196 B.I.A. as an obstacle to the exercise by an appellate court or one of its judges of the power to order a stay as set out in s. 65.1(1) S.C.A. (at least, and perhaps even more so, as long as the application for leave is pending before the Supreme Court). [ 30 ] In Koska , Binnie, J., who also had to rule on an application for a stay based on s. 65.1(1) S.C.A. , wrote that: This Court is generally reluctant to entertain a stay application that has not previously been dealt with by the Court of Appeal from which the appeal is sought to be taken.

However, s. 196 of the Bankruptcy and Insolvency Act R.S.C. 1985, chap. B-3 , provides: An appeal to the Supreme Court of Canada does not operate as a stay of proceedings, except to the extent ordered by that Court. The question of jurisdiction was not fully argued in the material.

While the matter is not free from doubt, I am prepared to proceed on the basis that this is the proper Court to consider the stay application in the first instance in the particular circumstances presented . [Emphasis added] [ 31 ] Thus, it would appear that the Supreme Court (or one of its judges) has jurisdiction to rule on an application for a stay made while an application for leave to appeal is pending, without it necessarily being certain, if Binnie, J.'s remarks are properly understood, that appellate courts (or their judges) are deprived of the concurrent jurisdiction conferred on them by s. 65.1(1) S.C.A. [ 32 ] Ultimately, what can probably be inferred from Sopinka and Binnie, JJ.'s remarks is that, when an application for leave to appeal is pending before the Supreme Court (which was the case in both instances), appellate courts and their judges retain the jurisdiction conferred upon them by s. 65.1(1) S.C.A.

Sopinka, J. seems to be of the opinion that, if the Supreme Court has granted leave to appeal, an appellate court or one of its judges would still have jurisdiction over stays under s. 65.1(1) S.C.A.

This cannot be said of the remarks of Binnie, J., who did not opine on the matter. [ 33 ] As indicated above (see, supra , para. [12]), Canadian appellate courts or their judges, when seized of an application for a stay in a bankruptcy matter, rule fairly often (albeit not frequently) on the sole basis of s. 65.1(1) B.I.A. , without mentioning s. 196 B.I.A. [23] In the few cases identified, however, the Supreme Court had not yet granted leave to appeal. One example can be found in Wakeling, J.A.'s ruling in Alberta Energy Regulator v.

Grant Thornton Limited , where, in a bankruptcy matter, he recognized the jurisdiction of appellate courts and their judges under s. 65.1(1) S.C.A. , while making some interesting observations: 6 A single judge of this Court has jurisdiction to grant a stay of proceedings even after the applicant has filed and served an application for leave to appeal to the Supreme Court of Canada .

Section 65.1(1) of the Supreme Court Act [reference omitted] expressly states that a judge of the court appealed from may “order that the proceedings be stayed with respect to the judgment from which leave to appeal is being sought”.

7 I have the jurisdiction under s. 65.1(1) of the Supreme Court Act to stay acts authorized by the judgment of the Court of Appealthat is under appeal. […] 64

Section 65.1(1) of the Supreme Court Act [reference omitted] unequivocally grants jurisdiction to a single judge of this Court to“order that proceedings be stayed with respect to the judgment from which leave to appeal [to the Supreme Court of Canada] is being sought”.40 65 The fact that the applicant has invoked the jurisdiction of the Supreme Court of Canada and filed and served a notice ofapplication for leave to appeal does not deny the jurisdiction of the Court of Appeal or a single judge of the Court of Appeal to grant a stay of proceedings.41 66 If s. 65.1(1) of the Supreme Court Act did not exist, s. 8 of the Judicature Act [reference omitted] would probably give this Courtjurisdiction to stay proceedings authorized by its own judgment if the applicant either intends to apply to the Supreme Court for leave toappeal or has filed a leave-to-appeal application. [Reference omitted] I doubt that it would go so far as to authorize this Court to grant astay if the Supreme Court had already granted leave to appeal.

I also doubt that s. 8 of the Judicature Act applies to stay applicationsdescribed by s. 65.1(1) of the Supreme Court Act. ___________ 40 This provision came into force on February 15, 1995.

An Act to amend the Criminal Code and other Acts (miscellaneous matters),S.C. 1994, c. 44, s. 101. This amendment resolved a controversy as to whether an appeal court or a single judge of an appeal court whoseruling was the subject of an application for leave to appeal to the Supreme Court of Canada may grant a stay. See Rocket v. RoyalCollege of Dental Surgeons of Ontario, (ON CA), 66 O.R. 2d 73 (C.A. 1988). “The purpose of the amendment was toenable litigants to apply to the court that had recently dealt with the matter.

Often the court appealed from is more conveniently locatedso as to permit the matter to be dealt with more expeditiously”. Esmail v. Petro Canada (SCC), [1997] 2 S.C.R. 3, 4(1996 chambers). See Baier v.

Alberta, 2006 ABCA 187, para. 14; 26 C.P.C. 6th 234, 237 (chambers) (“Our power is not inherent, andcomes only from the Supreme Court Act, [s. 65.1]”). 41 It is not beyond dispute that this Court maintains its jurisdiction to stay proceedings if the Supreme Court grants leave to appeal.Writing before s. 65.1(1) of the Supreme Court Act came into force on February 15, 1995, Chief Justice Laskin, for a panel of five, heldthat “unless there be statutory authority to the contrary, once a matter is before this Court on leave given either by this Court or ... a Courtof Appeal, it is the statute, rules and powers of this Court that govern any right to interlocutory relief, by a stay or otherwise, pendingfinal disposition of the appeal”.

Labatt Breweries of Canada Ltd. v. Canada, (SCC), [1980] 1 S.C.R. 594, 597 [1979].One justice of the Supreme Court of Canada has held that s. 65.1(1) of the Supreme Court Act gives an appeal court judge jurisdiction togrant a stay notwithstanding a prior Supreme Court order granting leave to appeal. Justice Binnie concluded in City of Montreal v.Quebec, (SCC), [1999] 1 S.C.R. 381, 389 that s. 65.1(1) of the Supreme Court Act authorizes a judge of an appealcourt to hear a stay application even after the Supreme Court of Canada has granted leave to appeal: “The right to apply is not cut off bythe granting of leave.

Section 65.1(1) does not express any such limitation”. Justice Donald of the British Columbia Court of Appealrelied on Justice Binnie’s opinion in KRG Insurance Brokers (Western) Inc. v. Shafron, 2008 BCCA 411, para. 10 (chambers) and heldthat he had jurisdiction to grant a stay after the Supreme Court of Canada granted leave to appeal. The authors of Supreme Court ofCanada Practice 2017 (2017), at 186 comment that “[t]he point appears to have been settled finally in favour of joint jurisdiction [bothan appeal court and the Supreme Court of Canada]. That is, once leave is granted, either the appeal court judge or a judge of the SupremeCourt of Canada may decide an application under

section 65.1”. This assessment might be premature. Justice Binnie made no mention ofChief Justice Laskin’s opinion in Labatt Breweries. And Justice Binnie’s expansive

interpretation of s. 65.1(1) of the Supreme Court Actmight not appeal to current or future Supreme Court justices. If an appeal court judge’s jurisdiction to grant a stay is not extinguished byan order granting leave to appeal, there are sound reasons why an appeal court judge may decline to exercise any stay jurisdiction he orshe may have. A stay order is usually accompanied by an order to expedite the appeal. An appeal court judge has no jurisdiction to orderthe expedition of a Supreme Court of Canada appeal.

Justice Donald did not have to address this concern in KRG Insurance Brokers(Western) Inc. because he dismissed the stay application. 2008 BCCA 411, para. 15. [Emphasis added] [34] Admittedly, the comment found in note 41 hereinabove is not based on s. 196 B.I.A. (to which Wakeling, J.A. does not allude inhis judgment), but can readily be transposed thereto. On the other hand, it should be noted that, in Simoneau v.

Ernst & Young,[24] thejudge seized of the application for a stay granted it until the final judgment of the Supreme Court, without, apparently, considering s. 196B.I.A. [35] Summarizing all of the foregoing, it appears that: - in bankruptcy matters, appellate courts and their judges retain the jurisdiction generally conferred upon them by s. 65.1(2) S.C.A.,a provision that covers a situation not contemplated in s. 196 B.I.A., i.e., where the stay is sought before the application for leave toappeal to the Supreme Court has been filed; - moreover, notwithstanding s. 196 B.I.A., the few precedents on the subject tend to consider that, when an application for leave toappeal has been filed with the Supreme Court, the appellate courts and their judges retain the jurisdiction generally conferred upon themby s. 65.1(1) S.C.A. at least as long as leave has not been granted. [36] As for the jurisdiction of an appellate court or one of its judges to grant a stay after the Supreme Court has granted leave toappeal, there is still some doubt. * *

[ 37 ] The undersigned will now rule on the applicant's application. [ 38 ] The application satisfies the conditions for granting a stay of execution of the judgment of the Court and, at the same time, of the judgment of the Superior Court. [25] [ 39 ] The applicant has raised serious questions of law.

Moreover, the harm it may suffer if the stay is not granted is significant, perhaps even irreparable (all the more so, since public funds are involved here, unlike in Biondi , [26] and the amount involved is considerable), given the respondent's stated intention to move forward if a stay is not ordered. [ 40 ] Lastly, the balance of convenience favours the applicant, since the respondent has not shown how it or the mass of creditors would suffer harm as a result of a stay order (e.g., no one has alleged that the financial survival of certain creditors depends on their bankruptcy claim being allowed and the dividend paid as soon as possible).

It is true that the context of the dispute, a bankruptcy, ordinarily requires that the bankrupt's patrimony be liquidated without delay. In light of the harm the applicant would suffer, however, the circumstances in the case at bar require that the effect of the judgment of the Court and, consequently, that of the trial court, be stayed.

The inconvenience that the creditors and the respondent will suffer seems lesser by comparison. [ 41 ] The final matter to be determined is how long the stay to be granted should last: in light of the assessment of the jurisprudence set out above (paras. [35] and [36] supra ) and the lingering doubt regarding the scope of s. 196 B.I.A. , it would be more prudent to limit the effect of this order, which will therefore be valid until the Supreme Court rules on the application for leave to appeal to be presented to it.

FOR THESE REASONS, THE UNDERSIGNED: [ 42 ] GRANTS the application for a stay; [ 43 ] STAYS the execution and effect of the judgement rendered by our Court on May 7, 2019 ( Ville de Montréal c.

Litwin Boyadjian inc. (Syndic de Société de vélo en libre-service) , 2019 QCCA 794 ), as well as the execution and effect of the judgment in first instance ( Syndic du Système de bicyclette public, société de vélo en libre-service , 2017 QCCS 1442 ), the whole until the occurrence of one of the following events: (1) the expiry of the time limit for seeking leave to appeal to the Supreme Court of Canada, or (2) the judgment of the Supreme Court of Canada on the application for leave to appeal, the whole without prejudice to such orders as the Supreme Court or one of its judges may make; [ 44 ] Without legal costs.

MARIE-FRANCE BICH, J.A. Mtre Claude Marseille Mtre Adam Spiro BLAKE, CASSELS & GRAYDON For the applicant Mtre Gerald F. Kandestin Mtre Robert Kugler Mtre Jeremy Cuttler KUGLER KANDESTIN For the respondent Date of hearing: June 17, 2019