2019 QCCQ 743, 2019 QCCQ 743

Trans-Montagne Investments Inc. c. Suisse Premium Chocolatier Inc. 2019 QCCQ 743 COURT OF QUEBEC (Practice Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-22-252454-197 DATE: February 11, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ TRANS-MONTAGNE INVESTMENTS INC. Plaintiff v.

SUISSE PREMIUM CHOCOLATIER INC. -and- GONDER DERVIS Defendants ______________________________________________________________________ JUDGMENT ON APPLICATION FOR A SAFEGUARD ORDER ______________________________________________________________________ [ 1 ] WHEREAS on June 11, 2018 Trans-Montagne Investments Inc. (“ Trans-Montagne ”) and Suisse Premium Chocolatier Inc. (“ Suisse Premium ”) entered into a commercial lease agreement (P-1) (“ Lease ”) whereby Suisse Premium leased from Trans-Montagne retail premises in Westmount, Québec for a 5 year term and a monthly rent (including additional rent) of $13,452.08 (GST and PST included); [ 2 ] WHEREAS Mr.

Gonder Dervis is a party to the Lease as a surety and personally agreed to guarantee the obligations of Suisse Premium under the Lease; [ 3 ] WHEREAS Suisse Premium has failed to pay monthly rent and owes Trans-Montagne $33,630.20 in arrears, which includes the rent owed for part of the month of September and the months of November and December 2018 (P-3); [ 4 ] WHEREAS Suisse Premium also has not paid the rent owed on January 1, 2019, in the amount of $13,452.08 (P-4); [ 5 ] WHEREAS on January 9, 2019, Trans-Montagne served on Suisse Premium an Originating Application to Resiliate a Lease and Recovery of Rent and for the Issuance of a Safeguard Order; [ 6 ] WHEREAS on January 21, 2019, the Originating Application was served on Mr.

Dervis; [ 7 ] WHEREAS Suisse Premium and Mr.

Dervis have not filed an Answer to the Originating Application and were not present at the hearing of the Application for the Issuance of a Safeguard Order, despite being duly served with the proceeding; [ 8 ] WHEREAS as of January 28, 2019, Suisse Premium ceased operating and abandoned the Leased Premises, removed furniture and turned off the heating, the whole in violation of the terms of the Lease (article 9.1); [ 9 ] WHEREAS Trans-Montagne has established that is has a clear right to the payment of rent for the month of January and February 2019 and for every month going forward until final judgment is rendered on the Originating Application; [ 10 ] WHEREAS Trans-Montagne has also established that it will suffer irreparable harm if the Safeguard Order it seeks is not issued; [ 11 ] WHEREAS it is urgent that a safeguard order be issued given the rental arrears and considering that Suisse Premium has turned off the heating in the Leased Premises in the middle of winter; [ 12 ] WHEREAS the other conclusions sought by Trans-Montagne in its Application for the Issuance of a Safeguard Order will not be allowed at this stage as they go beyond maintaining the status quo ; [ 13 ] WHEREAS although Trans-Montagne asks the Court to order that the Defendants be foreclosed from contesting the lawsuit if they fail to make payments ordered under the safeguard order, such an order cannot be made as it would be contrary to the rule set forth by the Court of Appeal in 9189-6092 Canada Inc . v.

Commerce universel Canada Inc . [1]

FOR THESE REASONS, THE COURT: [ 14 ] GRANTS in part the Application for the Issuance of a Safeguard order; [ 15 ] ORDERS Suisse Premium Chocolatier Inc. to pay to Trans-Montagne Investments Inc. rent of $26,904.16 for the months of January and February 2019 within 10 days from the date of service of this Order; [ 16 ] ORDERS Suisse Premium Chocolatier Inc. to pay to Trans-Montagne Investments Inc. on the first day of each month commencing March 1, 2019, $13,452.08 until final judgment has been rendered on the Application to Resiliate a Lease and Recovery of Rent and for the Issuance of a Safeguard Order; [ 17 ] AUTHORIZES Trans-Montagne Investments Inc. to enter into the Leased Premises to take any and all measures necessary to safeguard the integrity of the building, including turning on the heat; [ 18 ] DECLARES that in the case of default by Suisse Premium Chocolatier Inc. to make any payments ordered herein within the delays so ordered, that Trans-Montagne Investments Inc. may petition the Court to obtain a declaration that Defendants are foreclosed from pleading to or contesting the Application to Resiliate a Lease and Recovery of Rent and for the Issuance of a Safeguard Order or obtain any other sanction that the Court judges to be appropriate; [ 19 ] AUTHORIZES the provisional execution of this judgment notwithstanding appeal; [ 20 ] WITH LEGAL COSTS. __________________________________ ENRICO FORLINI, J.C.Q.

Me Alexandre Lavoie Plaintiff’s lawyer Defendants unrepresented and absent Date of hearing: January 24, 2019