2019 QCCA 2172, 2019 QCCA 2172

Orthopedic and Sport Rehabilitation Center OSRC inc. c. Building Best Condos Inc. 2019 QCCA 2172 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028618-197 ( 500-17-092943-169 ) MINUTES OF HEARING DATE: December 16, 2019 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPLICANT COUNSEL the orthopedic and sport rehabilitation center o.s.r.c. inc. Mtre Philip Aspler ( Aspler & Associé

s) RESPONDENT COUNSEL building best condos inc. Mtre MICHEL ROCHELEAU ( BMA Avocats inc. ) On appeal from a judgment rendered on September 16, 2019 by the Honourable Thomas M. Davis of the Superior Court , District of Montreal . DESCRIPTION: Application of appellant for the suspension of the provisional execution of the judgment at first instance through eviction (Art. 660 and 661 C.C.P. ) . Clerk at the hearing : Elisabeth Lepage Courtroom: RC-18 HEARING

12:18 Commencement of the hearing. Discussion between the Court and Mtre Rocheleau. 12 h 34 Submissions by Mtre Aspler. 12 h 39 Discussion between the Court and Mtre Aspler. 12 h 43 Remarks by Mtre Rocheleau. 12 h45 Discussion between the Court and Mtre Aspler. BY THE COURT: Judgment – see page 3. 12 h 47 Conclusion of the hearing. Elisabeth Lepage, Clerk at the hearing JUDGMENT [ 1 ] The Appellant makes an application to suspend provisional execution of the judgment rendered by the Superior Court, District of Montreal (Honourable Thomas M.

Davis) on September 16, 2019. [1] [ 2 ] The trial judgment included the following conclusion: DECLARES that the lease between the parties will end on its specified end date of November 30, 2019, failing agreement to the contrary. [ 3 ] On October 16, 2019, the Appellant filed, as of right, a notice of appeal.

In its notice of appeal, the Appellant seeks, among other conclusions, a declaration that it has the right to renew the lease for an additional five years. [ 4 ] On December 2, 2019, the Respondent sent to the Appellant a “Notice of Eviction pursuant to Articles 692 & 693 C.C.P .” In response, the Appellant asked for the suspension of the provisional execution of the judgment. [ 5 ] An appeal stays execution of the judgment, unless provisional execution has been ordered or is provided for by law. In this case, the trial judge did not order provisional execution.

Article 660 (5) C.C.P. provides for provisional execution as of right if the judgment orders an eviction. That

article does not apply in this case because the trial judge did not order an eviction. Moreover, the trial judge’s finding that the lease comes to an end on November 30, 2019 is under appeal. As a result, I am of the view that the Appellant’s application is not required. [2] [ 6 ] The Appellant has undertaken to pay the Respondent the amount of $17,020 monthly as rent during the appeal, under reserve of its right to argue that the rent should be a lower amount.

In these circumstances, the Respondent has undertaken to withdraw the notice of eviction, under reserve of its rights to argue that the lease has not been renewed and to serve a new notice of eviction of the Appellant fails to respect its undertaking. FOR THESE REASONS, THE UNDERSIGNED: [ 7 ] DISMISSES the Appellant’s motion , without costs; [ 8 ] PRAYS ACT of the Appellant’s undertaking to pay the Respondent the amount of $17,020 monthly as rent during the appeal, and of the Respondent’s undertaking to withdraw the notice of eviction. STEPHEN W. HAMILTON, J.A.