2012 QCCA 938, 2012 QCCA 938

Alertpay Incorporated c. Gilder 2012 QCCA 938 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022610-125 ( 500-17-063953-114 ) MINUTES OF THE HEARING DATE: May 16, 2012 THE HONOURABLE CLÉMENT GASCON, J.A. PETITIONER ATTORNEY ALERTPAY INCORPORATED Me Harold W. Ashenmil RESPONDENTS ATTORNEY TERRY GILDER THEMCO EKF Me Stephen Ashkenazy HAMILTON COOPER ASHKENAZY

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON MARCH 29, 2012, BY THE HONOURABLE RICHARD MONGEAU OF THE SUPERIOR COURT IN THE DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:32 Commencement of the hearing. Submission by Mtre Ashenmil. 9:40 Submission by Mtre Ashkenazy. 10:05 Reply by Mtre Ashenmil. 10:15 Suspension. 10:27 Resumption of the hearing. BY THE JUDGE. Judgment – See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] Defendant seeks leave to appeal an interlocutory judgment rendered by Mongeau J. of the Superior Court on March 29, 2012.

This judgment issued a safeguard order pursuant to which Defendant was ordered to remit to Mtre Ashenmil, its Counsel, "[…] monies presently in the Account referred in Exhibit DG-2 so that the (sic) may be deposited in a separate interest bearing account with signing authority held jointly by parties's attorneys and with the money only being paid upon settlement or final judgment". [ 2 ] In my opinion, Defendant fails to establish that this is a judgment that falls within the parameters of Article 29 (1) C.C.P.

It does not decide in part the issues, it does not unnecessarily delay the trial of the case, and it does not order the doing of anything which cannot be remedied by the final judgment. [ 3 ] In essence, the safeguard order issued by Mongeau J. merely places in the hands of Counsel in trust money allegedly held in

a specific account pending final settlement or final judgment. [ 4 ] As such, it appears obvious that the order is not definitive and can be remedied, if need be, by the final judgment. It is nothing more than a cautionary measure aimed at safeguarding the rights of the parties to the amount at issue. [ 5 ] The complaints raised by Defendant with regard to the alleged vagueness or uncertainty of the order issued is not a valid ground to obtain leave to appeal.

If the order is unclear, cannot be executed as such or needs to be clarified, this is a matter that should be raised at the trial judge level, not through a motion for leave to appeal. [ 6 ] As a result, I do not need to address the contradictions in Defendant's position argued before me by Plaintiff's Counsel. These would be relevant, at best, to the interest of justice criteria of

Article 511 C.C.P.; however, this criteria does not come into play when an

Article 29 C.C.P. situation has not been established first. [ 7 ] FOR THESE REASONS , the Motion for permission to appeal is DISMISSED, with costs. CLÉMENT GASCON, J.A.