2012 QCCQ 10791, 2012 QCCQ 10791

9207 5241 Québec inc. (Dépanneur 365 jours) c. Xenos 2012 QCCQ 10791 COURT OF QUEBEC (Practice division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-196937-125 DATE: November 2, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ 9207 5241 QUÉBEC INC. (DBA) Dépanneur 365 jours Plaintiff vs.

GEORGE XENOS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized of a motion to issue a safeguard order in a case brought by the Plaintiff, a lessee of a convenience store, 8968 Airlie (LaSalle) ( the "Property") to obtain specific performance of obligations allegedly owed by the lessor with respect to: 1. access to and use of parking areas; 2. repair of the surface of the parking areas; 3. roof repairs. [ 2 ] In the motion to obtain a safeguard order brought pursuant to

article 46 C.C.P., the Plaintiff requests permission to withhold the rent during the proceedings on the ground that it would be "grossly unfair and difficult" for the Plaintiff to continue to pay rent while its rights under the lease are being denied by the Defendant in respect of the three issues mentioned. [ 3 ] In anticipation of the Court's acceptance of its position, the Plaintiff has, in fact, not paid the rent of October 1 and November 1, 2012. [ 4 ] At the hearing, the Plaintiff modified its position, seeking an interim solution to the first issue only involving parking.

The complaint is that the Defendant placed boulders to block most of the access to the parking areas that were previously used. [ 5 ] The other elements, involving the paving and the roof repairs, are of less concern at this point, now that there is an attorney of record for the Defendant, such that negotiations to resolve these issues will be facilitated. [ 6 ] The building consists of the Plaintiff's dépanneur on the left side and the Defendant's seasonal ice-cream parlour on the right side of the rectangular building.

The buiding fronts on Airlie but it also has entry and parking on both the right side along 76th Ave. and the left side along 75th Ave. [ 7 ] It would appear that the main point of contention in the file is the true

interpretation of the lease, P-2, concerning parking. The Plaintiff takes the position that the lease, on its true

interpretation in light of the surrounding circumstances and the conduct of the parties, is to permit parking for the Plaintiff and customers of the convenience store in all of the areas of the property bordering on 75th Avenue along the canal, and on Airlie in the front of the building both in front of the dépanneur and in front of the ice-cream parlor.

The Plaintiff alleges that it used the parking in front of the building along Arlie and on the other "front" along 75th Avenue up until the dispute arose between the parties as a result of the placement of the boulders on September 20, 2012. [ 8 ] The boulders restrict access to the parking areas by the Plaintiff and its customers to a small area accessible only from one access on Airlie and one on 75th Ave. A drawing, produced as P-9, shows the configuration of the property in a plan view and the placement of the concrete boulders.

The parking for the convenience store (dépanneur) is currently restricted to four vehicles, and the space is rather difficult to manoeuvre in, given the line of boulders that are placed on a 45 degree angle from a point beside and in front of the left side of the dépanneur to the front-right corner of the building. [ 9 ] The Plaintiff's position is that, with a return to the status quo , at least in part, its vital interest in the object of the litigation will

be preserved and the time periods inherent in the Defendant's contrary position in the file, to be made by way of oral defence, will be tolerable. The parties agree to set a date with the Master of the rolls at the presentation of the motion to institute proceedings on November 20, 2012.

A trial will be set to proceed most probably two to three months later. [ 10 ] The attorney for the Defendant stated that his client would consent to removing this line of boulders placed on a 45 degree angle, and reposition the barrier so that it would extend from the façade to 75th Ave. and then along 75th Ave. as is now the case, adding more parking spaces and permitting better space for manoeuvring. [ 11 ] The Plaintiff answers that this compromise is not sufficient, because the access from 75th Ave. from the point near the rear of the building and the parking spots along the frontage on 75th Ave., which would remain blocked, is vital as well. [ 12 ] The Plaintiff's attorney offered on behalf of his client an undertaking to the Court that the current arrears and all rents on an ongoing basis until trial would be paid to the Defendant so long as the boulders placed along the part of the property bordering on 75th Ave to the side and in front of the portion of the building known as the "dépanneur" that presently block and restrict entry and parking of vehicles be removed within three working days of the Court's order to that effect. [ 13 ] In landlord-tenant cases, safeguard orders are not injunctions proper, although, in the Superior Court, they are sometimes part of the process of injunctive relief or dealt with according to the criteria of interlocutory injunctions. ( Terpac Plastics Inc. vs. 85157 Canada Ltd., AZ-50317347 Joel A.

Silcoff, J.S.C.) [ 14 ] In cases such as the present one, safeguard orders are interim measures imposed by the Court to provide procedural fairness to parties when one of them is unfairly disadvantaged during the period during which the parties are advancing toward a trial on the merits. The type of safeguard most often imposed involves depositing rents as a condition of a tenant being permitted to continue to make a defence that challenges lessor's right to resiliation for non-payment of rents.

The defence slows down the Plaintiff's progress toward a judgement and a defence should not act as a moratorium on paying rent. Depending on the nature of the defence, the probable time frames and the seriousness of the grounds of defence, a Court might order deposit, or even payment of the rent, in whole or in part, pending the trial, failing which the tenant will be foreclosed from pleading. The sanction of foreclosure is not the same as contempt of court. It is a procedural sanction, not a physical constraint. [ 15 ] Nor should a safeguard order act as a premature judgement on the merits.

It is more easily obtained when it preserves a status quo that the proceedings will upset, or returns the parties to a status quo ante that a final judgement can only remedy after a considerable time. ( Associated Collection Agencies Inc. c. Radius Properties Inc. 2011 QCCQ 16038 , Jean Keable J.C.Q) [ 16 ] In the present case, the restrictions that have been placed by the Defendant on the use of the parking lot appear to be quite prejudicial, especially in light of the liberal use of the parking areas that was permitted or, at least tolerated, since the outset of the lease in October 2009.

There is a certain urgency, because the business depends upon quick and easy access by customers. [ 17 ] The Defendant may or may not be within its rights, depending on the true meaning of the lease. A trial will determine this in a few months.

In the meantime, since the Court it cannot rule on the issue immediately, procedural fairness requires that the it be restored to the extent that it can be without undue prejudice to the Defendant. [ 18 ] The Plaintiff makes a good case for its revised position because the interim measure requested takes into account some key concerns of the Defendant, namely: - It doesn't restore to the dépanneur the use of the parking in front of the ice-cream parlour that the Defendant would prefer to dedicate to its own use (Defendant's affidavit paragr. 12); - It respects the Defendant's concern about restricting public access to the areas bordering on 76th Ave. where there have been problems of illegal use (Defendant's affidavit paragr. 24-26). [ 19 ] The Court will accept the Plaintiffs undertaking to also return to the status quo ante of paying rent so long as the Defendant acts according to the safeguard order imposed concerning access to parking.

This reciprocity brings about a procedural balance that will remain in effect until the hearing on the merits, or until the case is settled through concessions.

FOR THESE REASONS , the Court; ORDERS the Defendant to remove, within three working days of the present order, all the boulders placed along the part of the Property bordering on 75th Avenue to the side and in front of the portion of the building known as the "dépanneur"; GIVES ACT to the parties of the Plaintiffs undertaking to make good the rents for October and November and to resume payment of all rents due until the hearing on the merits, forthwith upon the Defendant carrying out the preceding order; REMAINS seized of the file should any difficulty arise with respect to the execution of the preceding order and undertaking, upon the request of either party by a notice of presentation addressed to the undersigned, on a date to be set in consultation with the clerk, at the parties' convenience; THE WHOLE with costs to follow suit. __________________________________ DAVID L.

CAMERON, J.C.Q.

Maître Norman GOLDBERG FRIDHANDLER & GOLDBERG Attorneys for the Plaintiff Maître Aaron TIGER Defendant Attorney for the Defendant Date of hearing: November 1, 2012