2017 QCCA 374, 2017 QCCA 374

Syndicat des copropriétaires Les Résidences Mont-Royal (Tour Sud) c. Soltron Realty GP Inc. 2017 QCCA 374 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026633-172 (500-17-088773-158) MINUTES OF THE HEARING DATE: March 7, 2017 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONERS COUNSEL SYNDICAT DES COPROPRIÉTAIRES LES RÉSIDENCES MONT-ROYAL (TOUR SUD) SYNDICAT DES COPROPRIÉTAIRES LES RÉSIDENCES MONT-ROYAL (TOUR NORD) Mtre ALFRED ANDREW BÉLISLE Mtre MARIE-HÉLÈNE TOUSSAINT (Godard Bélisle St-Jean & Associés s.e.n.c.) RESPONDENT COUNSEL SOLTRON REALTY GP INC.

Mtre ROBERT LORD DESCRIPTION: Application for leave to appeal from judgments rendered on December 15 and December 19, 2016, by Brian J. Riordan of the Superior Court, District of Montreal Clerk: Adam Scott Courtroom: RC.18

HEARING 9:38 Commencement of the hearing. 9:39 Identification of counsel. Representations by Mtre Bélisle. 9:59 Representations by Mtre Lord. 10:12 Reply by Mtre Bélisle. 10:13 Suspension of the hearing. 10:17 Resumption of the hearing. 10:18 BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing. (

s) Adam Scott Clerk BY THE JUDGE JUDGMENT [ 1 ] Petitioners seek leave to appeal the judgment of the Superior Court, District of Montreal (the Honourable Brian Riordan), rendered on December 19, 2016. They also seek leave to appeal a judgment of December 15, 2016 dismissing a “request to reopen the proof”. [ 2 ] Petitioners are two syndicates of co-owners of two apartment towers located in the Cour Mont-Royal real estate development, which comprises several elements including an indoor shopping center, a commercial building and health club in addition to the two residential towers.

The parties dispute the nature of certain obligations set out in a 1988 Master Deed of Servitude and consequently, sought the following conclusions as amended at the hearing before the judge: [2] (…) • DÉCLARER que les divers services énoncés à l’acte de servitude du 29 juin 1988 et produit comme pièce P-3, sont des servitudes réelles et perpétuelles qui lient les défendeurs, ès qualités (sic) de propriétaires du fonds servant envers les demandeurs, ès qualités (sic) de propriétaires du fonds dominant; • INTERDIRE aux défendeurs d’interrompre quelque service que ce soit mentionné dans l’acte de servitude produit comme pièce P- 3; • DÉTERMINER si lesdits services peuvent être annulés par la défenderesse en reprise d’instance et, le cas échéant, le délai raisonnable pour les annuler. [ 3 ] The “divers services” mentioned in the first conclusion quoted above were clarified by the judge to include the following: a. the supply of chilled water, b. the supply of condenser water, c. the supply of domestic cold water, d. the supply of heating water, e. snow clearance f. exterior maintenance and landscaping g. garbage removal,

[ 4 ] The judge decided as follows: [79] DECLARES that the following services under the Deed of Servitude of June 29, 1988 are imposed by real servitudes upon Defendant in favour of Plaintiffs: • the supply of chilled water, • the supply of condenser water, • the supply of domestic cold water, • the supply of heating water, [80] ORDERS Defendant not to interrupt the supply of the items listed in the preceding conclusion; [81] DECLARES that the following services under the Deed of Servitude of June 29, 1988 are not the subject of real servitudes but are, rather, obligations of successive performance that may be cancelled upon reasonable notice, as indicated below: • snow removal: with cancellation six months from the date of service of a notice of cancellation; • exterior landscaping: with cancellation three months from the date of service of a notice of cancellation, but not before April 1, 2017 and • garbage removal: with cancellation three months from the date of service of a notice of cancellation, but not before April 1, 2017. • DEFERS the decision as to the route over which the Residents may exercise their right of way with respect to garbage removal until a later date; WITHOUT JUDICIAL COSTS. [ 5 ] After the matter was taken under advisement, the attorneys for Petitioners sought permission to produce additional documents.

The judge refused on December 15, 2016 and Petitioners seek leave to appeal this decision with a view to obtaining permission to produce the documentation. [ 6 ] Counsel’s email of December 14, 2016 seeking leave to file additional documentation makes it clear that with the exercise of diligence prior to the hearing, the documents could have been found and produced. That counsel may not have realized the importance of the proof is not a reason to reopen the hearing.

In such circumstances, I see no room to interfere with the exercise by the judge of his discretion to deny the request and not reopen the hearing in order to allow production of the additional documentation. Leave to appeal will be denied. [ 7 ] Regarding the motion for leave to appeal the judgment of December 19, 2016, Petitioners have labelled their application as seeking leave to appeal an interlocutory judgment.

On examination of the introductive proceeding as well as the judgment, the latter appears to be a final judgment in a declaratory matter where no specific sum of money is involved and which terminates the proceeding. As such, the judgment is appealable as of right under

Article 30 C.C.P. I am however mindful that the last paragraph of the conclusions defers part of the decision to a later date. Any such spitting might be interpreted as negating the finality of the rest of the judgment. However, the balance of the judgment appears to constitute “chose jugée” and as such, could not be remedied on any further judgment. Moreover, the route for any right of way regarding garbage removal may depend on the outcome of the appeal. I would, in the circumstances, grant leave. The issues merit the attention of the Court.

Given the split judgment and the other pending matters between the parties, the appeal, in the circumstances, should proceed as an interlocutory by memorandum.

FOR THESE REASONS, THE UNDERSIGNED : [ 8 ] GRANTS the motion in part; [ 9 ] DENIES leave to appeal the judgment of December 15, 2016 of the Honourable justice Brian Riordan; [ 10 ] GRANTS leave to appeal the judgment of the Honourable justice Brian Riordan, rendered December 19, 2016. [ 11 ] ORDERS the Petitioners, after having notified a copy upon the Respondent, to file in the Office of the Court, no later than May 15, 2017 , five copies of a written argument not exceeding 25 pages .

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 12 ] ORDERS the Respondent, after having notified a copy upon the Petitioners, to file in the Office of the Court, no later than June 15, 2017 , five copies of a written argument (including the incidental appeal) not exceeding 30 pages and of his supplementary documents; [ 13 ] ORDERS the Petitioners, after having notified a copy upon the Respondent, to file in the Office of the Court, no later than July 17, 2017 , five copies of a written argument not exceeding 7 pages and of his supplementary documents, addressing the incidental- appeal; [ 14 ] DIRECTS the parties’ attention to

section 376 C.C.P. and

article 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension.

A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 15 ] REFERS the file to the Master of the Rolls to determine the date of a hearing of 90 minutes in duration (45 minutes each); [ 16 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities. Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches.

The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted; [ 17 ] THE WHOLE , legal costs to follow. MARK SCHRAGER , J.A.