2020 QCCA 269, 2020 QCCA 269

2727901 Canada inc. c. Sovell 2020 QCCA 269 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028820-207 ( 500-11-048836-155 ) MINUTES OF HEARING DATE: February 19, 2020 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPLICANTS COUNSEL 2727901 canada inc. ROBERT CHOUEKE 109652 CANADA LTD (RUBY INTERNATIONAL) MEMPHIS BLUES APPAREL COMPANY LTD. Mtre David Stolow ( Kugler, Kandestin ) RESPONDENT COUNSEL Gregory Sovell Mtre JEAN-YVES SIMARD M. MARC-ANTOINE BIGRAS, articling student ( Lavery, De Billy ) IMPLEADED PARTY c-IN2 clothing company inc.

ABSENT AND UNREPRESENTED DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on December 20 2019 by the Honourable Danielle Turcotte of the Superior Court , District of Montréal . (Art. 30 par.2 and 3 C.C.P. ) Clerk at the hearing : Elisabeth Lepage Courtroom: RC-18 HEARING 9:28 Commencement of the hearing. Mtre Simard advise the judge that the motion is not contested Remarks by the judge. 9:29 Submissions by Mtre Stolow.

9:30 Discussions between the judge and the parties. 9:46 BY THE JUDGE: Judgment- see page 3. 9:47 Conclusion of the hearing.

Elisabeth Lepage, Clerk at the hearing JUDGMENT [ 1 ] Justice Danielle Turcotte of the Superior Court, District of Montreal rendered a first judgment in this matter on September 28, 2016. [1] In the conclusions of that judgment, she authorized the Respondent to exercise his rights under a shotgun clause in relation to the shares of the Mise en cause, and she dealt with a number of alleged debts owed by or to the Mise en cause in order to allow the Respondent to evaluate the exercise of the shotgun clause.

As a final conclusion, she provided “AUTORISE les parties à s’adresser à la soussignée pour toute directive relative à la mise en œuvre de ce jugement.” [ 2 ] The appeal from her judgment was dismissed [2] and the Respondent proceeded to exercise his right under the shotgun clause to purchase the shares of the Mise en cause. [ 3 ] A number of issues have arisen since the purchase of the shares. The Respondent made a motion presentable before Justice Turcotte “for orders to facilitate the execution of a judgment” pursuant to

Article 657 C.C.P. whereby he claimed over $2 million from the Petitioners on behalf of the Mise en cause and for himself. The Petitioners contested those claims and advanced claims totalling $628,735 against the Respondent and the Mise en cause. During the trial, the judge rendered safeguard orders condemning the Petitioners to pay certain amounts immediately.

The Petitioners filed an application for leave to appeal, de bene esse, which I deferred to a panel of this Court on August 13, 2019 . [3] The Respondent did not seek to execute the safeguard orders. [ 4 ] Justice Turcotte rendered her final judgment on December 20, 2019 [4] .

In that judgment, she declared that the sale of shares included the shares of a second company (the US sister of the Mise en cause), condemned the Petitioners to pay over $1.5 million to the Mise en cause and the Respondent, and dismissed all of the Petitioners’ claims against the Mise en cause and the Respondent. [ 5 ] The Petitioners now seek to appeal the December 2019 judgment. [ 6 ] They submit that they have an appeal as of right because the December 2019 judgment terminates the proceeding and the value of the dispute in appeal exceeds $60,000.

They present a de bene esse application for leave to appeal, in case I am of the view that the December 2019 judgment is a judgment on execution matters. The Respondent is of the view that leave is not required but he does not contest the application for leave. [ 7 ] In my view, leave is not required. The December 2019 judgment cannot be considered to be a judgment ruling on execution matters in relation to the September 2016 judgment. It rules on new claims that were not part of the September 2016 judgment. [ 8 ] That being said, if leave was required, I would have granted it.

The multiple issues raised by this appeal should be submitted to the Court, particularly since I previously deferred the application for leave to appeal from the safeguard order to a panel of judges on August 13, 2019. [ 9 ] The two appeals should be joined and should proceed according to the ordinary procedure, with a single 30-page factum to be filed by each side.

THEREFORE, THE UNDERSIGNED : [ 10 ] DECLARES that leave to appeal is not required in the present matter; [ 11 ] DISMISSES the de bene esse application for leave to appeal as being without object ; [ 12 ] JOINS the appeals in court files 500-09-028820-207 and 500-09-028469-195; [ 13 ] ORDERS that the joined appeals proceed according to the ordinary procedure, with a single 30-page factum to be filed by each side; [ 14 ] With judicial costs to follow.

STEPHEN W. HAMILTON, J.A.