2022 QCCA 1604, 2022 QCCA 1604

Syndic de Zenda Glenhill Holdings Corporation 2022 QCCA 1604 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030184-220 ( 500-11-057811-206 ) MINUTES OF HEARING DATE: November 22, 2022 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A.

IN THE MATTER OF THE BANKRUPTCY OF: ZENDA GLENHILL HOLDINGS CORPORATION ZENDA BRIDGEWATER HOLDINGS CORPORATION ZENDA DUCKWORTH STREET HOLDINGS CORPORATION ZENDA WATERSIDE COMMONS HOLDINGS CORPORATION ZENDA STONE CREEK HOLDINGS CORPORATION ZENDA OMNI HOLDINGS CORPORATION ZENDA ORLEANS SQUARE HOLDINGS CORPORATION ZENDA BLUESTONE COMMONS HOLDINGS CORPORATION ZENDA MOUNT PEARL SQUARE HOLDINGS CORPORATION APPLICANT COUNSEL GERALD E. LEVY PRESENT AND UNREPRESENTED RESPONDENT COUNSEL RICHTER ADVISORY GROUP INC. Mtre GERALD F. KANDESTIN ( Kugler Kandestin ) IMPLEADED PARTY COUNSEL TIME EQUITIES INC.

Mtre GREGORY AZANCOT ( Azancot & Associé

s) ARTHUR BLUMER & ASSOCIATES INC., in his quality of trustee to the bankruptcy of Gerald E. Levy Mtre NICHOLAS CHINE Mtre KRYSTYN PIETRAS ( Stein & Stein ) Mtre NEIL H. STEIN ( Stein & Stein ) By videoconference DESCRIPTION: Application for stay of execution (Art. 390 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 15:00 Commencement of the hearing. Identification of counsel. Preliminary comments. 15:04 Submissions by Mr. Levy. 15:05 Comment by Mtre Stein. Exchanges between the parties concerning ARTHUR BLUMER & ASSOCIATES INC. 15:07 Mr.

Levy continues his submissions. 15:19 Submissions by Mtre Kandestin. 15:31 Submissions by Mtre Chine. 15:35 Submissions by Mtre Azancot. 15:39 Reply by Mr. Levy. 15:44 Recess of the hearing. 16:30 Resumption of the hearing. BY THE JUDGE: Judgment – see page 4. 16:34 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The applicant, Gerald E. Levy, claims that he intends to apply for leave to appeal from the Court’s judgment rendered on October 24, 2022, which dismissed his appeal from a Superior Court execution order made on August 1, 2022.

Among other conclusions, the execution order sentenced the applicant to serve a seventh additional term of imprisonment from November 23, 2022 to December 21, 2022, and ordered that he present himself on November 23, 2022 at 9 a.m. at the Établissement de détention de Montréal (Bordeaux) .

[ 2 ] This morning, on the eve of his imprisonment, the applicant presented himself at the Court asking to be heard the same day on his application for a stay of the execution order pending the preparation of his Motion for leave to appeal to the Supreme Court of Canada. The application itself provides no explanation as to why he waited until the very last minute to seek a stay, notwithstanding that this Court’s judgment was rendered almost one month ago.

At the hearing, the applicant did not offer satisfactory explanations regarding his failure to act in a timely manner, despite having been fully aware that he had been sentenced to imprisonment beginning on November 23, 2022. I have nonetheless accepted to consider the application.

However, in light of the applicable test, the applicant has not convinced me that a stay of execution should be ordered. [ 3 ] In order to succeed with his application, the applicant must show that he meets the three-stage test set out in Metropolitan Stores , [1] as summarized in RJR Macdonald , [2] namely: (1) there is a “serious issue to be tried”; (2) the applicant would suffer irreparable harm if the application were refused and (3) the balance of inconvenience favours the granting of the stay. [ 4 ] As far as the “serious issue to be tried” is concerned, the application fails to identify any grounds of appeal, let alone a serious one. [ 5 ] In the October 24, 2022 judgment, the Court summarily dismissed the appeal after pointing out: [4] […]Several grounds of appeal have no merit whatsoever as they constitute collateral attacks on earlier judgments from the Superior Court as well as this court that are now res judicata .

The other grounds appeal either point to no reviewable error or engage the appellant’s credibility, which the judgment under appeal found to be severely compromised by his continuously deceptive — and ever- changing — explanations regarding the use made of the funds in dispute.

The appellant has no chance of convincing a panel of the Court seized of the merits to overturn these findings of credibility. [ 6 ] The Court also added the following observation: [5] The Court further notes that it is clear from the record that the appellant has been engaging in dilatory tactics and seeking to undermine the Superior Court’s authority.

This appeal is yet another example of such tactics. [ 7 ] The grounds of appeal that the applicant has now raised at the hearing (and which had not been alleged in his application) have to do with the same dissatisfaction regarding earlier judgments, including his disapproval of the contempt order, all of which are now res judicata and stand no chance of success before the Supreme Court.

The applicant has failed to demonstrate a serious issue to be tried, [3] let alone convinced me that he has any true intention to seek leave to appeal from this Court’s decision. [ 8 ] As far as the other criteria are concerned, other than pointing out that the imprisonment will impair his right to appeal to the Supreme Court for the balance of the 60-day time limit available to him, as he will not be in a position to do research and prepare his case (an appeal which, as stated earlier, stands no chance of success), the applicant has not demonstrated how the imprisonment will cause him irreparable harm, nor how the balance of inconvenience could favour him, under the particular circumstances of the case, especially given the numerous dilatory tactics that he has used throughout the course of the proceedings.

FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] SHORTENS the delay for service of the Application for stay of execution; [ 10 ] DISMISSES the Application for stay of execution; [ 11 ] WITH LEGAL COSTS. GENEVIÈVE MARCOTTE, J.A.