2012 QCCQ 12287, 2012 QCCQ 12287

Constructions Anker ltée c. Couverture Bel-R inc. 2012 QCCQ 12287 COURT OF QUEBEC (Practice division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-194586-122 DATE: November 15, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ LES CONSTRUCTIONS ANKER LTÉE 2320, rue Goyer Montréal, Québec, H3S 1G9 Plaintiff vs.

COUVERTURE BEL-R INC. 710, rue Lépine Dorval, Québec, H9P 2D5 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff seeks a safeguard order to compel payment of rent until judgement on the merits. [ 2 ] The present status of the case is that the Plaintiff obtained a judgment by default on arrears of rent and resiliation of the lease.

A motion to revoke the judgment was received, and the case must now proceed to the hearing of the motion in revocation at the stage known as the "rescindant" and, at the same trail, the hearing on the merits of the case. [ 3 ] At the hearing of this motion the defendant tendered payment of rent for September and October 2012, thereby eliminating all outstanding arrears.

The gross monthly rent from November 1 is $7,358.45. [ 4 ] The defendant advises that it is prepared to deposit rent, but seeks some comfort that the plaintiff will execute obligations concerning the enjoyment of the premises, obligations that are at the origin of its defence and cross-demand, as detailed in the motion in revocation. The defendant estimates a claim for damages and/or reduction of rent of approximately $20,000 to $25,000. [ 5 ] Since the defence is written, the parties will get to the trial stage in approximately one year, or sooner, if they agree upon a very quick timetable.

To date the parties have not agreed. [ 6 ] The purpose of a safeguard order is to bring procedural balance in cases where the passage of time inherent in litigation can be unfairly prejudicial to one of the parties.

For instance, we routinely issue safeguard orders for rent in cases where resiliation for non- payment of rent is claimed, and the defence would otherwise act as a moratorium on rent during the waiting time for trial. [ 7 ] In a recent case, I wrote: [1] In landlord-tenant cases, safeguard orders are not injunctions proper, although, in the Superior Court, they are sometimes part of the process of injunctive relief or dealt with according to the criteria of interlocutory injunctions. ( Terpac Plastics Inc. vs. 85157 Canada Ltd., AZ-50317347 Joel A.

Silcoff, J.S.C.) [2] In cases such as the present one, safeguard orders are interim measures imposed by the Court to provide procedural fairness to parties when one of them is unfairly disadvantaged during the period during which the parties are advancing toward a trial on the merits. The type of safeguard most often imposed involves depositing rents as a condition of a tenant being permitted to continue to make a defence that challenges lessor's right to resiliation for non-payment of rents.

The defence slows down the Plaintiff's progress toward a judgement and a defence should not act as a moratorium on paying rent. Depending on the nature of the defence, the probable time frames and the seriousness of the grounds of defence, a Court might order deposit, or even payment of the rent, in whole or in part,

pending the trial, failing which the tenant will be foreclosed from pleading. The sanction of foreclosure is not the same as contempt of court. It is a procedural sanction, not a physical constraint. [3] Nor should a safeguard order act as a premature judgement on the merits. It is more easily obtained when it preserves a status quo that the proceedings will upset, or returns the parties to a status quo ante that a final judgement can only remedy after a considerable time. ( Associated Collection Agencies Inc. c.

Radius Properties Inc. 2011 QCCQ 16038 , Jean Keable J.C.Q). [1] [ 8 ] In the matter at hand, the case will proceed, hopefully with dispatch, and a hearing on the merits will occur within the year. If the defendant is allowed to deposit 25% of the rent, it will have set aside, in a court deposit, an amount sufficient to protect it if it is successful on the merits. Otherwise, this amount will be available to the Plaintiff for satisfaction of judgment. The other 75% will be paid directly to the Plaintiff.

This arrangement could be revised by the Court if the circumstances change. [ 9 ] Should the Defendant fail to make any payment at any time before trial, it will be foreclosed from pleading, and the plaintiff will be in a position to present the case for judgment by default.

BY THESE REASONS, THE COURT: GRANTS the safeguard order requested in part; ORDERS the defendant to pay directly to the plaintiff 75% of the gross rent of $7, 358.14, i.e. $5,518.60 and to deposit in court the other 25% i.e. $1,839.53, for each month, beginning with the rent for November 2012 no later than November 20, and, thereafter on the first day of each month, until final judgment; ORDERS that, failure on the part of the defendant to comply with the preceding order will entail foreclosure from pleading, enabling the plaintiff to proceed by default ; THE WHOLE , costs to follow suit. __________________________________ DAVID L.

CAMERON, J.C.Q. Monsieur Ahmed Tidiane BA (stagaire) TAILLEFER BEAUMIER PLOUFFE KANO Attorney for the Plaintiff Maître Daniel BROOK MDB AVOCAT INC. Attorney for the Defendant Date of hearing: October 31, 2012