2019 QCCA 382, 2019 QCCA 382

Stringos c. 6594115 Canada inc. 2019 QCCA 382 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028046-191 (500-17-092477-168) MINUTES OF THE HEARING DATE: On March 4, 2019 THE HONOURABLE PATRICK HEALY, J.A. PETITIONER COUNSEL ANDREA STRINGOS Mtre ELAINE ROSENBERG (Rosenberg Avocat Inc.) RESPONDENT COUNSEL 6594115 CANADA INC. Mtre MAUDE BROUILLETTE Mtre AMANDA SANTACHE (Stikeman Elliott s.e.n.c.r.l., s.r.l.) IMPLEADED PARTY COUNSEL JAMIE MALUS ABSENT

DESCRIPTION: Application for suspension of the execution of a judgment rendered on December 21, 2018, the reasons of which, revised and rectified on January 24, 2019, by the Honourable Claude Dallaire of the Superior Court, District of Montreal. (Art. 660 C.C.P. ) Application for leave to amend the notice of appeal. (Art. 206 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC.18 HEARING 9:43 Start of the hearing. Exchanges between the Judge and Mtre Elaine Rosenberg. The application for leave to amend the notice of appeal is not contested.

Submissions by Mtre Rosenberg. 10:04 Submissions by Mtre Maude Brouillette. 10:17 Rebuttal by Mtre Rosenberg. 10:18 BY THE JUDGE : The judgment will be mailed to the Parties, later on. 10:19 End of the hearing. Judgment – See page 3. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] The appellant seeks leave to amend the notice of appeal previously filed and further seeks an order to suspend execution of the judgment pronounced in first instance on 21 December 2018. Motion to amend the notice of appeal [ 2 ] The respondent does not object to the first motion and accordingly it will be granted.

Motion to suspend provisional execution [ 3 ] An appeal generally suspends the execution of judgment and an order for provisional execution within the meaning of articles 660 and 661 C.C.P . is exceptional. Under

article 660, provisional execution is automatic if the case falls within one of the enumerated classes. Under

article 661, it is a measure within the discretion of the trial judge and the exercise of that discretion may be reviewed by a single judge of this court. A party that seeks the suspension of an order for provisional execution bears a substantial burden to demonstrate that there are apparent errors in the judgment in first instance, that serious prejudice arises from provisional execution and that the balance of convenience favours suspension. [ 4 ] The jurisprudence of this court has consistently emphasised that the petitioner’s burden is substantial.

The judgment is presumed to be valid unless or until ruled otherwise and the discretion of the trial judge to order provisional execution must be considered with

deference. Moreover, a motion to suspend provisional execution provides no opportunity for an anticipatory hearing of the merits of an appeal and certainly no opportunity to retry central matters of fact at the trial. [ 5 ] In this case the trial judge gave extensive reasons that were scrupulously detailed. On the basis of these reasons, she concluded that the petitioner had acted abusively and in bad faith. At the end of these reasons, the trial judge stated specifically that provisional execution was justified “ vu les faits décrits, la chronologie et l’abus de droit ” (paragraph 138). The judgment does not make clear whether the order for provisional execution was based upon

article 660 or

article 661 [1] and in such circumstances it is prudent to assume that the order was based upon

article 661. [ 6 ] This conclusion must be read in the context of her reasons as a whole. Although the petitioner has an appeal that will proceed on the merits, she has not demonstrated an apparent weakness in the trial judgment or an objectionable exercise of discretion in the order for provisional execution. Accordingly, there is no basis to suspend the order for provisional execution and no basis on which to order provision of a surety. FOR THESE REASONS, I: [ 7 ] DISMISS the motion to suspend the order for provisional execution of the judgment in first instance, with costs of justice to the respondent on the motions. patrick healy , J.A.