2020 QCCA 689, 2020 QCCA 689

Feldman c. Lande 2020 QCCA 689 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028918-209 ( 500-11-058629-201 ) MINUTES OF HEARING DATE: May 14, 2020 THE HONOURABLE MANON SAVARD, J.A. APPLICANTS COUNSEL Glenn J. Feldman Ioannis Hatzithomas Allan Bernstein Pierro Hirsh Mtre Jacques S. Darche M tre Christina Birks ( Borden Ladner Gervais ) By videoconference Tyfoon International inc. Mtre LESLIE B.

ERDLE ( De Grandpré Chait ) By telephone conference RESPONDENT COUNSEL Irwin Lande Mtre Jonathan Warin M tre alexandra belley -MCKINNON ( Lavery, De Billy ) By videoconference IMPLEADED PARTIES COUNSEL Andrew Feifer in his capacity as liquidator OF the Estate of Sherry Lande Feifer Mtre Jason S. Novak Mtre David banon ( Spiegel Sohmer inc. ) By videoconference

SOCIÉTÉ EN COMMANDITE MONTRÉAL MÉDIA & DIVERTISSEMENT MONTREAL MEDIA ENTERTAINMENT BUILDING INC. ABSENT AND UNREPRESENTED PIERRE MARCHAND, sequestrator PRESENT AND UNREPRESENTED By videoconference DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on March 27, 2020 by the Honourable Madame Justice Marie-Anne Paquette of the Superior Court , District of Montreal (Arts. 31 para. 2 and 357 C.C.P. ). Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10: 55 Commencement of the hearing. Identification of counsel.

Preliminary remarks. 11: 09 Submissions by Mtre Darche. 11: 51 Submissions by Mtre Erdle. 12: 15 Submissions by Mtre Warin. 12: 35 Submissions by Mtre Novak. 12: 59 Reply by Mtre Darche. 13: 08 Recess of the hearing 13: 26 Resumption of the hearing. BY THE JUDGE: Judgment – see page 4. 13: 29 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] On March 27, 2020, the Superior Court issued the safeguard order sought by the respondent in connection with an oppression remedy he instituted pursuant to various legislative provisions, including articles 524 et seq.

C.C.P. and sections 241 et seq. of the

Canada Business Corporations Act (“ CBCA ”) (R.S.C., (1985), c. C-44 ). More specifically, the motion judge suspended the effects of a special resolution adopted on March 11, 2020 by the applicants as limited partners of Société en commandite Montréal Média & Divertissement and appointed MNP Ltd. as the “sequestrator” of the impleaded parties, the whole to remain in force until judgment on the merits or until a subsequent judgment modifying its terms. [ 2 ] The applicants, who are dissatisfied with this safeguard order, seek leave to appeal that judgment which, they argue, causes them irreparable harm.

More specifically, they reproach the trial judge for having issued such an order without setting a fixed term, as well as for having appointed a sequestrator despite the fact that the respondent’s application contains no allegation demonstrating the

inadequate administration of the impleaded parties and the fact that the applicants had agreed to suspend the resolution that gave rise to the dispute. They add that the order in question does not specify the financial parameters of the sequestrator’s mandate and is based on various manifest errors of fact.

Lastly, they argue that such an order could not be issued under the CBCA against an unincorporated company . [ 3 ] The respondent and the impleaded party Andrew Feifer, in his capacity as liquidator of the estate of Sherry Lande Feifer, oppose the leave sought. * * * [ 4 ] It is established that a sequestration order, at the provisional stage, is exceptional and can only be ordered for a serious reason ( Desjardins c. Desjardins , 2006 QCCS 6292 ). In principle, to be issued, such an order must satisfy the criteria for a provisional interlocutory injunction ( 176283 Canada inc. c.

St-Germain , 2011 QCCA 608 , para. 7 ). As a [ translation ] “discretionary judicial measure, issued for conservatory purposes, in an emergency situation, for a limited period, […]”, [1] such an order may be appealed with leave [ translation ] “in an exceptional case if the interests of justice require it”. [2] [ 5 ] The applicants have not convinced me that this is the case here. [ 6 ] It is true that certain elements of the judgment, which contains brief reasons, may at first glance be surprising.

The judge observed that all the parties had agreed, first, that a safeguard order should be issued “with regards to the future management and conduct of the business” of the impleaded parties and, second, that the liquidation of the impleaded parties should eventually be ordered, despite the fact that the applicants opposed both of these conclusions.

Similarly, one may question the merits of a safeguard order to remain in force until the judgment on the merits, particularly when it is issued without more of an explanation. [ 7 ] These elements alone, however, do not justify granting the leave sought. [ 8 ] It is apparent from the trial judgment that, according to the judge, the ability to manage the impleaded parties is in jeopardy due to the dispute between the applicant Glenn J. Feldman and the respondent, a dispute in which the other applicants interfered by adopting the disputed resolution.

She states that the appointment of a sequestrator is “the only way to avoid the parties facing consecutive deadlock situations or forcing them to perpetually return to Court […]” until the final judgment on the oppression remedy. At first sight, such a conclusion is supported by the affidavits and the exhibits filed thereunder.

Moreover, when the applicants were questioned on this matter at the hearing, they were unable to propose another solution to resolve the problem identified by the judge. [ 9 ] Furthermore, the applicants have not convinced me that the order sought, notwithstanding its duration, causes them irreparable harm. Without revisiting the structure of the impleaded parties in detail, suffice it to say that their principal object is the ownership of a commercial property located in downtown Montreal whose management has been entrusted to a third party company.

That company is not subject to the order in question, such that, in principle, it is able to continue the day to day management of the property, in the best interests of all. As a matter of fact, the applicants have not alleged the occurrence of anything since the appointment of the sequestrator that would tend to show that he has overstepped his role and interfered in the day to day management by said third party company.

Consequently, the applicants have not shown me that they are suffering a prejudice other than financial harm, that is, the costs incurred by the impleaded parties with respect to the sequestrator’s mandate. If the circumstances were to change, the applicants could apply to the court for a modification of the order issued, a possibility that the trial judge, in fact, provided for. [ 10 ] In short, notwithstanding the scope of the safeguard order in question, I am of the view that the criteria of art. 31 C.C.P. and the interests of justice do not justify granting the leave sought.

FOR THESE REASONS , THE UNDERSIGNED : [ 11 ] DISMISSES the application for leave to appeal, with legal costs. MANON SAVARD, J.A