2012 QCCA 425, 2012 QCCA 425

Benjamin News Inc. c. Montreal (City of) (Borough of LaSalle) 2012 QCCA 425 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021085-105 ( 500-17-037336-073 ) MINUTES OF THE HEARING DATE: February 29, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. FRANÇOIS PELLETIER, J.A. PAUL VÉZINA, J.A. APPELLANT ATTORNEY(

S) BENJAMIN NEWS INC. Mtre Alfredo J. Mancini KAUFMAN, LARAMÉE RESPONDENT ATTORNEY(

S) CITY OF MONTREAL (BOROUGH OF LaSALLE) Mtre Éric Couture CHAREST,GAGNIER, BIRON, DAGENAIS

On appeal from a judgment rendered on September 13, 2010, by the Honourable Justice Israel Mass of the Superior Court district of Montreal NATURE OF THE APPEAL : Responsability Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 10 h 35 Submission by Mtre Alfredo Mancini. 11 h 01 Suspension. 11 h 23 Resumption 11 h 23 Submission by Mtre Alfredo Mancini (continuation) 11 h 29 Submission by Mtre Éric Couture on the question of prescription. 11 h 48 Reply by Mtre Alfredo Mancini on the question of prescription. 11 h 50 Ends of arguments 11 h 50 Suspension. 11 h 56 Resumption. BY THE COURT: Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT

[ 1 ] On the issue of prescription, appellant now argues that the change in the zoning by-law which prevented it from obtaining a better price for its immovable property is tantamount to a disguised expropriation. [ 2 ] Firstly, the Court notes that this argument was not presented to the trial judge as such. Secondly, there was no expropriation in this case, and appellant sold its property for $2,100,000. Thirdly, the Motion to introduce the suit alleged the following: 22. Defendant's unwarranted refusal to issue an occupancy permit and its abusive and overly restrictive

interpretation of the Zoning by-laws and the immoveable's acquired right, are in fact construed by Plaintiff as nothing other than a pretense in that basis for Defendant's continued refusal to acknowledge Plaintiff's acquired right to be able to continue to use the immoveable for industrial purposes in general and not solely for the warehousing and distribution of books and magazines, was aimed at:

a) preventing the sale or the leasing of the immoveable to any individuals or persons who intended on continuing the industrial use of said property or for any other use, other than for residential purposes;

b) compelling the Plaintiff to sell to be a real estate promoter so that ultimately, a residential project would be constructed on the site where the immoveable is currently located; 23. In view of the foregoing, Plaintiff contends that as a result of Defendant's tactics, omissions and fault, Plaintiff was prevented from selling its immoveable at a higher price to a prospective purchaser who intended on continuing the use of the property as industrial and/or to lease the immoveable […] [ 3 ] Appellant cannot, at this late stage, change the nature of its proceedings.

The parties would no doubt have presented their case very differently in Superior Court had disguised expropriation been the basis of the action. [ 4 ] Appellant instituted an action in damages based on delictual responsibility. Such an action is subject to the six month prescription provided in

article 586 of the Cities and Towns Act. [ 5 ] The other ground of appeal was that the trial judge would have erred in finding that appellant's action was ill founded because it never asked the City for a certificate of occupation detailing the nature of the purchaser's business. [ 6 ] Appellant fails to demonstrate any error in the judgment a quo that would justify the intervention of the Court. FOR THESE REASONS THE COURT: [ 7 ] DISMISSES the appeal, with costs. NICOLE DUVAL HESLER, C.J.Q. FRANÇOIS PELLETIER, J.A. PAUL VÉZINA, J.A.