2019 QCCA 1381, 2019 QCCA 1381

2727901 Canada inc. c. Sovell 2019 QCCA 1381 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028469-195 ( 500-11-048836-155 ) MINUTES OF THE HEARING DATE: August 13, 2019 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 Mtre Éva M. Richard ( Kugler, Kandestin s.e.n.c.r.l., L.L.P. ) RESPONDENT COUNSEL Gregory Sovell Mtre Jean-Yves Simard ( Lavery, De Billy s.e.n.c.r.l. ) IMPLEADED PARTY COUNSEL C-IN2 Clothing company inc.

Absent and unrepresented DESCRIPTION: De Bene Esse Application for leave to appeal from a judgment rendered orally in the course of the proceeding on July 12, 2019 (transcription of the judgment dated July 16, 2019) by the Honourable Danielle Turcotte of the Superior Court, District of Montreal and Application for Stay of execution (art. 31 (4) and 660 al. 2 C.C.P. ) .

Clerk at the hearing: Stephane Robinson Courtroom: RC-18 HEARING 9:36 Commencement of the hearing. Identification of counsel. Exchanges between the judge and the parties. 9:37 Mtre Simard will not contest the Applicants’ motion. Discussion between the judge and Mtre Simard. 9:42 Discussion between Mtre Stolow and the Judge. 9:43 Exchanges between the Judge and Counsel. 9:44 BY THE JUDGE : Judgment to be rendered in the course of the day and inserted in the minutes of the hearing – see page 3. 9:45 Conclusion of the hearing. Stephane Robinson, Clerk at the hearing.

JUDGMENT [ 1 ] The Petitioners seek leave to appeal, de bene esse , from a judgment rendered by the Superior Court, District of Montreal (the Honourable Danielle Turcotte), on July 12, 2019. The judgment was rendered on the fifth day of a trial, which will resume on September 18 and 19, 2019. The judgment is entitled “Safeguard Order” and it orders the Petitioners, solidarily, to pay the Respondent within 10 days certain of the amounts at issue in the litigation in the total amount of $460,571.

Essentially, the judge found that certain amounts had been established in an earlier judgment [1] or had been admitted by the Appellants and she ordered that the net amount be paid without awaiting the end of the trial. She also made an interim order on costs pursuant to Subsection 242(4) of the

Canada Business Corporations Act . The Petitioners also seek a stay of execution of that order. [ 2 ] The Petitioners allege that the judgment, notwithstanding the Judge’s characterization, is not a safeguard order. Rather, they submit that it is a final judgment on the merits, such that leave to appeal is not required.

However, if leave to appeal is required, the Petitioners argue that the finding of a judicial admission precludes them from making evidence and could be construed as allowing an objection to evidence, that the judgment cannot be remedied by the final judgment and that it is in the interest of justice that leave be granted. [ 3 ] The Respondent does not contest the motion.

He recognizes that the judgment will be suspended and is prepared to wait for the resumption of the trial on September 18 and 19, 2019, and the final judgment rather than attempting to execute the judgment. [ 4 ] In view of the uncertainty as to whether the Petitioners have a right of appeal, the appropriate course is to defer the motion for leave to appeal to a bench of this Court, which will hear the motion for leave to appeal and, if it considers it appropriate, the appeal on the merits. [ 5 ] To the extent that the interim order on costs in paragraph 24 of the judgment is subject to provisional execution under

Article 660, paragraph 2 C.C.P. , the Respondent consents to the suspension of provisional execution. [ 6 ] It is likely that this appeal will become moot when the Superior Court renders its final judgment. It should be heard at the same time as the appeal from the final decision, if either party appeals. THEREFORE, THE UNDERSIGNED : [ 7 ] DEFERS the motion for leave to appeal de bene esse to a bench of this Court ; [ 8 ] SUSPENDS provisional execution with respect to paragraph 24 of the judgment; [ 9 ] With judicial costs to follow.

STEPHEN W. HAMILTON, J.A.