2013 QCCA 2053, 2013 QCCA 2053

Prince c. Prince 2013 QCCA 2053 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500-09-024009-136 (500-17-073178-124) MINUTES OF THE HEARING DATE: November 22, 2013 THE HONOURABLE MADAM JUSTICE MARIE-FRANCE BICH, J.A. APPELLANT ATTORNEY LENNY PRINCE Mtre Lionel Rossdeutscher LIONEL ROSSDEUTSCHER & ASSOCIÉS RESPONDENT ATTORNEY VLAD PRINCE Mtre Jamie Benizri LEGAL LOGIK INC APPELLANT'S MOTION FOR A SAFEGUARD ORDER AND SUSPENSION OF THE HEARING (Art. 496.1 and 550 C.C.P.) & RESPONDENT'S MOTION FOR A SAFEGUARD ORDER Clerk: Asma Berrak Court Room: RC.18

HEARING 10:23: Beginning of the hearing. 10:23: Submission by Mtre Rossdeutscher. 10:51: Submission by Mtre Benizri. 10:58: Reply by Mtre Rossdeutscher. 11:00: Reply by Mtre Benizri. 11:00: Suspension of the hearing. 11:22: Resumption of the hearing. 11:22: Judgment - see page 3. 11:27: Conclusion of the hearing.

Asma Berrak Clerk JUDGMENT [ 1 ] On September 11, 2013, the Superior Court, district of Montreal (the Honourable Mr Justice Louis Lacoursière), rendered the following judgment, by default: [6] GRANTS the present Amended Motion as to its conclusion; [7] ORDERS the expulsion of Defendant, Lenny Prince, from the residence located at [...], Lantier, [...], described as follows: DESCRIPTION Property A […] Property B […] (collectively the “Immovable”) [8] DECLARES Plaintiff to be the sole liquidator in the Estate of the late Marian Gelman and with all the rights and privileges attached thereto; [9] ORDERS the Immovable to be listed at the price equal to twice its municipal evaluation of $270,000.00, the whole in conformity with its municipal tax role [...] and with

Article 901 and following of the civil code of procedure which immovable is described above; [10] DESIGNATES the real estate agent, namely Mr Christopher Gaudin of Remax to sell the immovable located at [...], in the city of Lantier and ALLOW him to immediately enter it to perform all acts in view of listing same; [11] AUTHORIZES Plaintiff to sign alone the brokerage contract for the sale of the immovable located at [...], in the city of Lantier, and establish all conditions at his sole discretion and accept any offer he deems sufficient at his sole discretion and GIVE ACT to same;

[12] DECLARES that the notary Mtre Macki Tall has the necessary powers and capacity to sign all transmission documents and all other documents required to consummate the sale of the immovable located at [...], in the city of Lantier, without Defendant’s consent; [13] ALLOWS Plaintiff to deduct from the sale price of the immovable located at [...], in the city of Lantier, all related costs including but not limited to commissions ad taxes; [14] DECLARES that the net proceeds of sale of the immovable located at [...], in the city of Lantier, after deductions being made for costs related thereto, shall be equally divided amongst the parties save and except for the following deductions to Defendant’s share, to the benefit of Plaintiff’s share: i. an amount of fifty four thousand dollars ($54,000), sauf à parfaire, representing 48 months at the rental value of the Immovable, less a 25% markdown for vacancy and other factors, during which time the Defendant had exclusive occupancy thereof; and ii. an amount of $28,697.27, sauf a parfaire, representing the amount payable by Defendant with respect to the legal hypothec on the Immovable registered by Her Majesty, represented by the Minister of National Revenue. [15] RESERVES Plaintiff’s other rights in order for him to address this court to exercise all of his other rights in his capacity as legatee or liquidator of the Estate; [16] THE WHOLE with costs to the Defendant. [ 2 ] These conclusions, for the most part, are executory according to

article 547, sub-paragraphs (b), (

d) and (e), C.C.P. [ 3 ] On November 5, 2013, the Superior Court (the honourable David R. Collier) dismissed the petitioner's motion to revoke Lacoursière J.'s judgment. [ 4 ] On November 15, 2013, Mr. Lenny Prince inscribed Collier J.’s judgment in appeal.

On the same day, he filed a « Motion for a safeguard order and suspension of execution », seeking suspension of the execution of Lacoursière J.'s judgment pending the appeal of Collier J.’s judgment. [ 5 ] On November 19, 2013, the respondent Vlad Prince replied by filing his own « Motion for a safeguard order », seeking to prevent the appellant, pending the appeal of Collier J.’s judgment, to jeopardize the sale ordered by Lacoursière J. [ 6 ] Obviously, since the appellant did not appeal Lacoursière J.'s judgment, I am without jurisdiction ratione materiae to suspend its execution. [ 7 ] Furthermore, I am also without jurisdiction to render a safeguard order such as is sought here.

This is well settled law. Safeguard orders cannot be rendered by the motions judge, but only by a panel of the Court, pursuant to

article 46 C.C.P. See: Raymond c. St- Albert-de-Warwick (Municipalité de la paroisse de) , J.E. 95-1926 (C.A.) ; 9045-6740 Québec inc. c. 9049-6902 Québec inc., J.E. 2003- 2270 ; Déjà Musique inc. c. Desjardins , 2006 QCCA 1367 , B.E. 2006BE-1184; B.L. c. A.H. , 2006 QCCA 813 , B.E. 2006BE-658; Groupe F. Farhat inc. c. Robert , 2008 QCCA 1717 , B.E. 2008BE-979; R.K. c. Ackman (Succession d') , 2008 QCCA 2530 , J.E. 2009-227; Droit de la famille – 09862 , 2009 QCCA 749 , B.E. 2009BE-428; Proulx c. Dakar Corp. , 2010 QCCA 1313 , 2010EXP-2288; Peluso c.

Dolmen (1994) inc. , 2011 QCCA 1757 , J.E. 2011-1704 and Asselin c. Daniel Girouard & Associés inc. , 2013 QCCA 159 , J.E. 2013-234, para. 44 ; [ 8 ] For these reasons, the motions are DISMISSED , with costs. MARIE-FRANCE BICH, J.A.