2011 QCCA 625, 2011 QCCA 625

Piciacchia c. Rayan Pharma inc. 2011 QCCA 625 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021410-113 (540-17-002819-083) DATE: MARCH 18, 2011 IN THE PRESENCE OF THE HONOURABLE MARIE-FRANCE BICH, J.A. LUCIANO PICIACCHIA PETITIONER – APPELLANT / Intervenant v. RAYAN PHARMA INC. RESPONDENT / Plaintiff and GROUPE SODEX INC. Defendant JUDGMENT [ 1 ] On January 7, 2011, the Superior Court, district of Montreal (the Honourable Mr.

Justice Michel Déziel), allowed the action of the respondent claiming certain assets and concluded in the following manner : […] DÉCLARE la demanderesse Rayan Pharma inc. propriétaire des biens meubles tels qu'énumérés et décrits dans la pièce P-4; ORDONNE à la défenderesse Groupe Sodex inc. et à l'intervenant Luciano Piciacchia de remettre à la demanderesse Rayan Pharma inc. tous les biens meubles et équipements énumérés et décrits dans la pièce P-4; ORDONNE l'exécution provisoire du présent jugement nonobstant appel; […] [ 2 ] On February 7, 2011, the petitioner appealed and he now seeks the suspension of the provisional execution of the judgment. [ 3 ] According to the petitioner, the conclusion of the judgment ordering him to surrender the assets to the respondent is problematic. [ 4 ] The petitioner argues that he is not in possession of the assets in question (a fact that the respondent does not dispute), which are in the hands of a third party, to wit Laboratoires Garmen inc. (a fact that is also undisputed and that is cognized in the judgment).

Garmen (which the petitioner founded but apparently does not own anymore) is not and never was a party to the proceedings instituted by the respondent. The judgment concluded that the petitioner controls Garmen, but he refutes this finding and this is one of his grounds of appeal. [ 5 ] The petitioner contends that since he does not hold the assets, the order rendered against him is not susceptible of execution within the meaning of

article 469 C.C.P. , and that it unduly exposes him to proceedings for contempt of court, should he not succeed in securing the assets to the benefit of the respondent. In short, he does not know what he must do to satisfy the order made against him and avoid contempt of court. Should he write to Garmen? Should he send them a “mise en demeure”? Should he sue them?

What if Garmen denies holding the assets or asserts a right of ownership over them? [ 6 ] As such, and without even contemplating the seriousness of his other grounds of appeal, the petitioner submits that this is sufficient to justify the suspension of the provisional execution of the judgment. [ 7 ] The respondent replies by insisting on the petitioner's lack of credibility.

The judge concluded that “Piciacchia cherche par tous les moyens à empêcher Rayan de récupérer ses biens” [1] and, according to the respondent, this conclusion is entirely supported by the evidence, which reveals a series of corporate and contractual ploys by the petitioner to avoid returning the assets to the respondent. The petitioner is in a position to ensure that the assets are returned to the respondent, hence the conclusion of the judge ordering him to do so. * *

[ 8 ] The criteria for the suspension of the provisional execution of a judgment are well known. According to art. 760 C.C.P. or 550 C.C.P. , the suspension will be granted when there are major and apparent weaknesses in the judgment appealed from, and when provisional execution is of such a nature as to cause great or irreparable harm to the requesting party, with due consideration to the balance of inconvenience.

By exception, in some circumstances, the possibility of an irreparable and disproportionate harm, which would entirely neutralize the appeal, may, in and of itself, justify the suspension of provisional execution (see, for example: Konarsky c. Gornitsky , 2010 QCCA 1291 , J.E. 2010-1265). [ 9 ] In the present case, although the judgment is particularly complicated, it rests on questions of fact only and relies heavily on matters of credibility.

The petitioner has not discharged his burden of establishing that the judgment, in this respect, contains major weaknesses that are sufficiently apparent as to justify the suspension of its provisional execution. [ 10 ] As far as the harm is concerned, the judge below was of the opinion that the petitioner actually controls the assets and always controlled them through different corporate vehicles.

The possibility that he may be accused of contempt of court is not, therefore, in the particular circumstances of this case, a valid reason to suspend the provisional execution of the judgment of the Superior Court. [ 11 ] FOR THESE REASONS, THE UNDERSIGNED: [ 12 ] DISMISSES the motion to suspend provisional execution, with costs. MARIE-FRANCE BICH, J.A. Mtre George Peizler Peizler & Vani For the Petitioner Mtre Richard Letendre Dufour Mottet For the Respondent Date of hearing: March 4, 2011