2021 QCCA 1053, 2021 QCCA 1053

Westmount Plus inc. c. Redbourne 4150 2021 QCCA 1053 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029540-218 ( 500-17-115325-212 ) MINUTES OF HEARING DATE: June 17, 2021 THE HONOURABLE MARTIN VAUCLAIR, J.A. APPLICANT COUNSEL westmount plus inc. Mtre MICHEL AMAR ( Amar & Associé

s) By videoconference RESPONDENT COUNSEL redbourne 4150 limited partnership Mtre ALEXENDER LAVOIE By videoconference DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on May 3, 2021 by the Honourable Geeta Narang of the Superior Court , District of Montreal (Art. 31 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 9:46 Commencement of the hearing. Identification of counsel. Submissions by Mtre Amar, adds an argument that is not present in his application. 9:58 Submissions by Mtre Lavoie. 10:06 Reply by Mtre Amar.

10:08 Recess of the hearing. 10:16 Resumption of the hearing. BY THE JUDGE: Judgment – see page 3. 10:17 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The applicant, Westmount Plus Inc. (“Westmount”), seeks leave to appeal from a judgment of the Superior Court (Geeta Narang, J.S.C.), district of Montreal, rendered on March 18, 2021, which granted the application for a safeguard order of the respondent, Redbourne 4150 Limited Partnership (“Redbourne”). [ 2 ] Westmount runs a business centre in the building it rents from Redbourne at $39,600.26 per month.

At the time of the action in recovery of rent, filed by Redbourne in January 2021, the arrears were more than $163,000. That amount increased since the safeguard order was issued in May 2021. In any event, the Superior Court judge ordered Westmount to pay the rent for the months of April and May 2021 and to resume paying the rent, starting on June 1, 2001, for the next six months, including November 2021.

The judge’s conclusion is preceded by the correct legal test and a careful analysis of the circumstances. [ 3 ] In this matter, the pandemic and its impact are central; Westmount invoked the doctrine of superior force (“ force majeure ”). The judge concluded that the COVID-19 global pandemic was unforeseeable, but that Westmount had not satisfied the irresistibility requirement. Westmount argues that the trial judge erred in law by so deciding. Westmount claims that the judge also made palpable and overriding errors by not giving proper weight to its loss of revenues.

With these errors, according to Westmount, the judge indirectly concluded on the merits of the case. [ 4 ] At the hearing, Westmount argued specifically that

article 15 of the lease stipulates the obligations of the tenant and the landlord in the event of superior force and that the judge did not give the

article enough weight in evaluating Redbourne’s appearance of right. Redbourne replied that this

article must be read in its entirety and drew attention to the last sentence of said article: “Notwithstanding the foregoing, neither Tenant nor Landlord shall, under any circumstance, be excused or released from the payment of Rent or any other payments required under this Lease, and this

Article 15 shall not operate to extend the Term of this Lease.” In my opinion, the lease tends to increase the appearance of right and

article 15 cannot support the argument that the judge erred. [ 5 ] The proposed appeal is governed by

article 31 C.C.P . Leave may be granted if the judgment appealed from determines part of the dispute or causes irreparable injury to a party. The jurisprudence is constant that such an order may be appealed if the judgment shows an apparent weakness and there is an urgent need to prevent significant harm. In matters of safeguards orders, appeals are granted in exceptional circumstances: Lavoie c. Maltais , 2018 QCCA 777 , para. 17 ; Cineplex inc. c. Canadian Forum Investment inc. , 2021 QCCA 467 (Sansfaçon, J.A.); 9219-7607 Québec inc. c.

FCHT Holdings (Québec) Corporation inc. , 2020 QCCA 1533 (Fournier, J.A.); Levasseur c. Roland , 2020 QCCA 1028 (Marcotte, J.A.). [ 6 ] This case is not exceptional. While it is true that the judge discussed the role of the COVID-19 pandemic, she did so to balance Redbourne’s obvious appearance of right. The judge did not definitely conclude on the matter. For the same reason, she analyzed the second argument presented by Westmount invoking the disruptive actions of Redbourne, which complicated access to the building.

Contrary to Westmount’s contention, it is the failure to consider the defence that could be said to be an error. At this early stage, however, the judge held that Westmount had not satisfied its burden. There is nothing in the judgment indicating that the outcome of the trial is even partially settled. FOR THESE REASONS, THE UNDERSIGNED: [ 7 ] DISMISSES the application for leave to appeal; [ 8 ] THE WHOLE with legal costs. MARTIN VAUCLAIR, J.A.