2012 QCCA 774, 2012 QCCA 774

Rhythm Properties Inc. c. 9035-0349 Québec inc. 2012 QCCA 774 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022520-126 ( 500-17-068409-112 ) MINUTES OF THE HEARING DATE: April 25, 2012 THE HONOURABLE ALLAN R. HILTON, J.A. PETITIONER ATTORNEY RHYTHM PROPERTIES INC. Mtre Donald Michelin STEIN & STEIN RESPONDENTS ATTORNEY 9035-0349 QUÉBEC INC. WATSON POITEVIN TURCOT PRÉVOST Mtre Stéphane Cléroux ARNAULT THIBAULT CLÉROUX

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON FEBRUARY 23, 2012 BY THE HONOURABLE CLAUDE AUCLAIR OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC-18 HEARING 10:23 Commencement of the hearing. Submission by Mtre Michelin. 10:37 Submission by Mtre Cléroux. 10:43 Reply by Mtre Michelin. 10:45 Suspension. 10:52 Resumption of the hearing. BY THE JUDGE. Judgment – See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] The applicant seeks leave to appeal a judgment of the Superior Court that granted a motion to dismiss presented pursuant to

article 54.1 C.C.P. The motion to dismiss was taken in the name of one defendant, the notarial firm of Watson, Poitevin, Turcot, Prévost, in an action that also impleads 9035-0349 Quebec Inc as a co-defendant. The allegations in the applicant's pleadings make it clear that the latter defendant is the management company of the notarial firm. [ 2 ] The action in the Superior Court is undertaken by the lessor of premises in which the notarial firm carries on its practice. While the management company is the named lessee on the lease with the applicant, it has sub-leased the premises to the notarial firm.

[ 3 ] The claim against the defendants arises out of a dispute with respect to rent owing under the lease. The applicant has impleaded the notarial firm, despite its not being the lessee, on the basis that the management company is in effect the "prête-nom" and thus the mandatary of the notarial firm, thus making the latter a solidary debtor.

It is further alleged that the management company is an empty shell whose capacity to pay the rent is entirely dependent on funds that the notarial firm provides it. [ 4 ] The motion to dismiss before the Superior Court judge proceeded on the basis of the proceedings and exhibits, as well as the transcript of an examination on discovery of two representatives of the applicant. The applicant claims that the judgment dismisses its claim against the notarial firm prematurely, without it having the opportunity to lead evidence to establish its liability. [ 5 ] The case law under

article 54.1 C.C.P . continues to be in a state of evolution given its relatively recent adoption by the legislature. Without commenting on whether or not I consider the judgment of the Superior Court to be well-founded, I believe this case to be an appropriate one for the Court of Appeal to determine whether the applicant should have been entitled to take its case to trial against the notarial firm, especially in light of the fact that it will in any event proceed against the management company. I note as well that both defendants in the Superior Court are represented by the same counsel.

FOR THESE REASONS : [ 6 ] The motion for leave to appeal is granted, with costs to follow the outcome of the appeal, and the file is deferred to the Master of the Rolls for the establishment of a timetable and a date for hearing. ALLAN R. HILTON, J.A.