2014 QCCA 2044, 2014 QCCA 2044

6309356 Canada Inc. c. Syndicat des copropriétaires 3600 Van Horne 2014 QCCA 2044 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024738-148 ( 500-17-076300-139 & 500-17-048807-096 ) MINUTES OF THE HEARING DATE: November 6, 2014 THE HONOURABLE nicholas kasirer , J.A. PETITIONER COUNSEL 6309356 CANADA INC.

Mtre CARIMINE PONTILLO ( Pontillo Pecho ) RESPONDENTS COUNSEL SYNDICAT DES COPROPRIÉTAIRES 3600 VAN HORNE Mtre sébastien dorion ( Dunton, Rainville ) GUPTA ARCHITECTURE VINOD GUPTA Mtre pierre-stéphane poitras ( Gilbert Simard Tremblay ) DESCRIPTION: Motion of 6309356 Canada Inc. for permission to appeal an interlocutory judgment rendered on September 2, 2014 by the Honourable Mr. Justice Paul Mayer of the Superior Court, District of Montreal

Clerk: Nadia Samy Courtroom: RC-18 HEARING 10:12 Commencement of the hearing. Identification of counsel. 10:13 Submissions by Mtre Pontillo. 10:25 Submissions by Mtre Dorion. 10:33 Comments by Mtre Pontillo. Continuation of submissions by Mtre Dorion. 11:03 Recess. 11:15 Resumption of the hearing. Submissions by Mtre Poitras. 11:20 Rebuttal by Mtre Pontillo. 11:32 Comments by Mtre Dorion. Continuation of submissions by Mtre Pontillo. 11:43 Recess until 3:00 p.m.; either judgment will be rendered or the matter taken under advisement.

Counsel are excused from appearing and will be advised of the result of the hearing accordingly. 2:59 Resumption of the hearing. Mtre Dorion is present. Judgment – see page 3. 3:01 Conclusion of the hearing. Clerk BY THE JUDGE JUDGMENT [ 1 ] 6309356 Canada Inc., one of the defendants in an action in damages for defective repairs to an immovable, seeks leave to appeal from an interlocutory judgment of the Superior Court, District of Montreal (the Honourable Paul Mayer), rendered on the minutes of the hearing on September 2, 2014, which annulled a transaction signed between the parties.

The judge did so because, in his view, the suspensive conditions upon which the contractual obligations in the “Settlement Agreement” of March 12, 2010 depended had not been satisfied. [ 2 ] The petitioner submits that the judge erred in holding that the conditions referred to in the Settlement Agreement were not satisfied. Specifically, says the petitioner, the work alluded to in the contract was done, contrary to the finding of the judge.

Moreover, grounds for annulling a transaction under articles 2631 C.C.Q et seq. are limited in law to defects of consent and the judge was mistaken to annul the transaction based on his reading of the conditions and the evidence relating thereto. [ 3 ] The respondent raises three points in answer. First, the judgment is not subject to immediate appeal under the rules of splitting of actions. Second, in any event, the judge made no mistake in finding that the conditions upon which the obligations in the Settlement Agreement depended for their existence were not met. In the circumstances there was no transaction.

Finally, counsel argues that the motion for leave to appeal is improper within the meaning of

article 54.1 C.C.P., and he invites me, by motion made orally, to award his client $1,000.00 in damages.

*** [ 4 ] The motion for leave is governed by articles 29 and 511 C.C.P. [ 5 ] The respondent is right to say that no appeal lies from a judgment on an application for the splitting of an action and that the right to appeal judgments on the merits arises only upon judgment that ends the proceedings (art. 273.2 C.C.P). [ 6 ] In the circumstances, however, it is not necessary to decide whether Mayer, J.’s judgment is susceptible of immediate appeal, a point that divides the parties here.

Even if it were subject to an immediate appeal with leave, I would not grant leave. [ 7 ] Assuming, for the purposes of discussion, that the judgment orders that something be done that cannot be remedied by the final judgment, I am of the view that the pursuit of justice, within the meaning of

article 511 C.C.P., does not require leave to be granted. [ 8 ] The judge interpreted the Settlement Agreement as creating obligations subject to two suspensive conditions, namely (

i) the repair of about 100 defects in the immovable, and (ii) the confirmation by an architect that the repairs had been properly done (p. 9 of the Minutes of the Hearing). [ 9 ] The petitioner has not convinced me that this

interpretation is mistaken. The judge’s view finds plain support in the terms of the Settlement Agreement. In any event, the

interpretation of a contract is a question of fact in respect of which deference is owed on appeal. In my view, the grounds raised to dispute the judge’s

interpretation would have no reasonable success on appeal. [ 10 ] Were the conditions in the Settlement Agreement satisfied, as the petitioner claims? [ 11 ] The judge held that they were not. [ 12 ] He noted that the parties had signed an “admission” agreement, for the purpose of expediting the hearing before him, that the work had not been completed, and thus this condition had not been satisfied. The petitioner says the judge was mistaken to consider that the agreement, designed only to dispense with witnesses at the hearing, constituted an admission on its part.

Petitioner notes that its counsel had included a reserve in the document that no admission was made on this point. [ 13 ] The judge made no mistake here. In the “admission” signed on the day of the hearing, the representative of the petitioner acknowledged that as of March 12, 2010 the work was not completed. It is true that the admission was made for the sole purpose of the hearing of September 2, 2014 and that the parties specified that the admission could not be used “pour la suite du dossier”.

But at the hearing of September 2, 2014, the judge could fairly rely on it to determine if the suspensive condition on which he was called upon to decide had been met. In any event, the judge refers to a report from the architect Marc Deschamps attesting to the fact that the work had not been done which comforted him in that conclusion. [ 14 ] The judge thus decided, on his reading of the contracts and the evidence before him, that the suspensive conditions had not been met.

This finding of fact deserves deference on appeal and I see no reasonable prospect of having it reversed. [ 15 ] Did the judge err in annulling the transaction? [ 16 ] The non-fulfilment of the conditions meant that the obligations in the Settlement Agreement did not exist. As Rochon, J.A. observed in Fiset v. Joli-cœur et al ., 2007 QCCA 1753 , para. [19] : « tant qu’une incertitude demeure sur la réalisation d’une condition, il n’y a pas d’obligation ». [ 17 ] That reasoning applies here.

The judge might well have declared that the obligations under the Settlement Agreement “did not exist” rather than “annulling” the transaction. But the turn of phrase he used is of no practical consequence here given that, under the terms of the Settlement Agreement, the conditions had to have been met by May 31, 2010. On the judge’s view of the facts – to which, again, deference is owed – they were not met because the specified repairs were not done by that date. Because the suspensive conditions were not fulfilled, there was no valid transaction created by the Settlement Agreement.

Technically speaking, there was no transaction to annul but, reading the judgment as a whole, it is clear that the judge’s conclusion was that obligations did not exist. [ 18 ] In the circumstances, an appeal of this judgment would have no reasonable prospect of success. [ 19 ] Finally, I am of the view that it is not appropriate to order damages for abuse of process: Asselin v. Daniel Girouard & associés inc ., 2013 QCCA 159 . [ 20 ] FOR THE AFOREMENTIONED REASONS , the undersigned: [ 21 ] DISMISSES the motion for leave, with costs. nicholas kasirer , J.A.