2023 QCCA 60, 2023 QCCA 60

Hypertec Real Estate Inc. c. Equinix Canada Ltd. 2023 QCCA 60 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030245-229 ( 500-11-061091-225 ) MINUTES OF HEARING DATE: January 16, 2023 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. MARIE-JOSÉE HOGUE, J.A. JOCELYN F. RANCOURT, J.A. APPELLANT COUNSEL Hypertec real estate inc. Mtre André Ryan Mtre Shaun Finn ( BCF ) RESPONDENT COUNSEL equinix canda ltd Mtre David B. Éthier Mtre Alexandre Thibault ( IMK ) IMPLEADED PARTIES joseph R. nuss Pierre J. Dalphond Joel A.

Silcoff Absents and Unrepresented On appeal from a judgment rendered on September 14, 2022, by the Honourable Chantal Corriveau of the Superior Court , District of Montreal . DESCRIPTION: Application to dismiss an appeal (article 365 C.C.P .). Clerk at the hearing : René Gutknecht Courtroom: Pierre-Basile-Mignault

HEARING 11:46 Commencement of the hearing. Identification of counsel. 11:50 Mtre Éthier has nothing to add to his application and keeps his time for reply. Submissions by Mtre Ryan. 11:52 Discussion between the Court and Mtre Ryan. (Permission required) 11:54 Mtre Ryan resumes his submissions. 12:09 Recess of the hearing. 12:17 Resumption of the hearing. The Court informs Mtre Éthier that he won’t need to present his representation. 12:18 BY THE COURT: Judgment – see page 4. 12:21 Conclusion of the hearing.

René Gutknecht, Clerk at the hearing JUDGMENT [ 1 ] The Appellant has appealed the decision of the Superior Court, District of Montreal (the Honourable Chantal Corriveau), dated September 14, 2022, which dismissed the Appellant’s proceedings seeking to annul an arbitral decision. The Respondent seeks the

summary dismissal of the appeal. [ 2 ] A judgment dismissing an application to annul an arbitral award is considered to be a judgment ruling on an execution matter as is an application to homologate the award.

Thus, leave to appeal is required. [1] No leave was sought nor obtained so that the appeal is not validly filed. [ 3 ] Moreover, the appeal would have no reasonable chance of success for the reasons which follow. [ 4 ] The arbitral tribunal (the Impleaded party) dismissed the Appellant’s arguments that the failure of the Respondent’s appraiser to respect certain public order norms in the preparation of his property appraisal, invalidated that report. [ 5 ] Nothing raised before the Superior Court to annul the arbitrators’ decision satisfied the criteria to set aside an arbitral decision found in articles 648 and 646 C.C.P.

As such, the judge of the Superior Court correctly dismissed the application before her. The Appellant contends that this was somehow erroneous and constitutes a matter of public order. The Appellant is wrong. [ 6 ] The Superior Court was correct not to inquire into the merits of the dispute between the parties nor to examine the merits of the arbitrators’ decision. [2] It was not for the Superior Court to determine whether the arbitrators erred in findings of fact or applications of legal rules including those of public order.

Specifically, the arbitrator’s rejection of the Appellant’s argument that the opposing parties’ appraiser violated rules of public order does not itself raise an issue of public order which could justify the annulment of the arbitrator’s decision, as the Superior Court judge decided. [ 7 ] Consequently, the appeal has no reasonable chance of success and should also be dismissed, for this reason. FOR THE FOREGOING REASONS, THE COURT: [ 8 ] GRANTS the Respondent’s application to dismiss an appeal, with legal costs; and [ 9 ] DISMISSES the appeal, with legal costs. MARK SCHRAGER, J.A. MARIE-JOSÉE HOGUE, J.A.

JOCELYN F. RANCOURT, J.A.