2021 QCCA 556, 2021 QCCA 556

Syndic des Entreprises Daniel & Fils inc. 2021 QCCA 556 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029431-210 ( 705-11-011919-199 ) MINUTES OF HEARING DATE: April 7, 2021 THE HONOURABLE FRÉDÉRIC BACHAND, J.A. IN THE MATTER OF THE BANKRUPTCY and insolvency of: les entreprises daniel et fils inc. APPELLANT COUNSEL Alékko Mtre REEVIN PEARL ( Pearl & associé

s) By videoconference RESPONDENT COUNSEL Houle Roy, S.A. Mtre EMMANUEL PRÉVILLE-RATELLE ( Ratelle, Ratelle & Associé

s) By videoconference IMPLEADED PARTIES COUNSEL Paquette & associés, huissiers de justice s.e.n.c.r.l. ABSENT and unrepresented services fl inc. ABSENT and unrepresented

talbot & associés encanteur récupérateur inc. Mtre marie-élaine racine ( Therrien Couture Joli-Coeur ) Absent superintendent of bankruptcy ABSENT and unrepresented DESCRIPTION: Appellant's application to order suspension of proceedings before the Superior court (Commercial division) (Art. 660 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10:59 Commencement of the hearing. Identification of counsel.

Preliminary comments. 11:00 Submissions by Mtre Pearl. 11:17 Submissions by Mtre Préville-Ratelle. 11:30 Reply by Mtre Pearl. 11:43 Comments by Mtre Préville-Ratelle. 11:44 BY THE JUDGE: The judgment will be rendered on the minutes of the hearing and sent to counsel during the day. Conclusion of the hearing.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] On March 17, 2021, the Superior Court dismissed the applicant’s application to quash search warrants issued pursuant to section 189(1) of the Bankruptcy and Insolvency Act (“ B.I.A. ”) [1] and ordered that the applicant’s claims in the present case be dealt with in an expedited manner. Given the urgency of the matter, the judge also ordered the provisional execution of his judgment. [ 2 ] The applicant, who filed a notice of appeal on March 26, 2021, now seeks an order cancelling the order for provisional execution. Pursuant to

section 195 B.I.A. , the granting of such a cancellation order would cause the proceedings before the Superior Court to be stayed. [ 3 ] It is clear from

section 195 B.I.A. that whether an order for provisional execution ought to be stayed is a matter of discretion. As my colleague Justice Bich pointed out in 2010, while it is appropriate to refer to the criteria applicable in cases governed by what is now

article 661 C.C.P. (an apparent weakness in the impugned judgment; a risk of irreparable harm if provisional execution is upheld; the balance of convenience favouring the applicant), one must also keep in mind the broad discretionary powers conferred on first instance judges by the B.I.A. as well as the interest of creditors. [2]

[ 4 ] The applicant has failed to convince me that the order for provisional execution ought to be cancelled. [ 5 ] To begin, I see no apparent weakness in the judge’s detailed analysis supporting his conclusions regarding, firstly, the untimeliness of the applicant’s application to quash the impugned search warrants and, secondly, the fact that, since changing counsel in February 2021, the applicant has adopted a position which significantly contradicts the one he had adopted initially. [ 6 ] Furthermore, I fail to see how the order for provisional execution will cause irreparable harm to the applicant.

As that order seeks to ensure that the merits of outstanding issues in dispute can be resolved as expeditiously as possible, its impact on the applicant — as I see things — will essentially be to force it to prove its claims of ownership in relation to the property in dispute sooner than it wishes, specifically at a trial which is scheduled to begin on April 19, 2021.

That does not amount to the kind of irreparable harm that can justify the cancellation of an order for provisional execution. [ 7 ] I end by noting that I find wholly without merit another argument made by the applicant, which is that the staying of first instance proceedings is somehow justified by the fact that the “same Motion Judge who’s [sic] judgment is under Appeal, has been appointed to hear all pending matters before the lower court as the case moves forward” (application, para. 7a)).

FOR THESE REASONS, THE UNDERSIGNED: [ 8 ] DISMISSES the application to cancel the order for provisional execution granted by the Superior Court in its judgment dated March 17, 2021, with legal costs. FRÉDÉRIC BACHAND, J.A.