2011 QCCA 1360, 2011 QCCA 1360

3311066 Canada inc. (Marina Centre) c. Massé 2011 QCCA 1360 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021823-117 ( 500-17-037108-076 ) MINUTES OF THE HEARING DATE: July 13, 2011 THE HONOURABLE MARIE-FRANCE BICH, J.A. PETITIONERS ATTORNEY(S) 3311066 CANADA INC. (D/B/A "MARINA CENTRE") AND VINCENZO BARRASSO Mtre Danielle Oiknine OIKNINE & ASSOCIÉS RESPONDENT(

S) ATTORNEY(

S) NORMAND MASSÉ Mtre Olivier J. Brault ALLALI AVOCATS ATTORNEY(

S) MOTION FOR SUSPENSION OF PROVISIONAL EXECUTION

Clerk: Marc Leblanc Courtroom: RC.18 HEARING 16 h 33 Beginning of the hearing. 16 h 33 Argument of Mtre Oiknine. 16 h 52 Argument of Mtre Brault. 17 h 00 Reply by Mtre Oiknine. 17 h 04 Suspension of the hearing. 17 h 20 Resumption of the hearing. Judgment rendered – see page 3. 17 h 25 The hearing is concluded. Marc Leblanc Clerk JUDGMENT [ 1 ] On June 28, 2011, the Superior Court, district de Montréal (Mr.

Justice Paul Mayer), rendered the following judgment : FOR THESE REASONS, THE COURT: [245] GRANTS the Requête introductive d'instance ré-amendée of the Plaintiff in part; [246] ACKNOWLEDGES the Defendants' discontinuance of their counterclaim, WITH COSTS against the Defendants; [247] ORDERS the resiliation of the Lease as of June 30, 2007; [248] CONDEMNS 3311066 Canada inc. and Vincenzo Barrasso, solidarily, to pay the Plaintiff the sum of $273,450 to compensate him for lost profits, the whole with interest at the legal rate, plus the additional indemnity provided for pursuant to

Article 1619 C.C.Q. as of June 5, 2007; [249] CONDEMNS 3311066 Canada Inc. and Vincenzo Barrasso, solidarily, to pay the Plaintiff the following: $25,000 of punitive damages; and $70,020.33 for extrajudicial fees;

the whole with interest at the legal rate, plus the additional indemnity provided for pursuant to

Article 1619 C.C.Q. as of the dateof this judgment; [250] ORDERS the provisional execution of the sum of $275,000 awarded herein notwithstanding appeal pursuant to

Article 547C.C.P.; [251] WITH COSTS against the Defendants. [2] The petitioners have appealed this judgment, by way of inscription, and they now seek the suspension of the order forprovisional execution, pursuant to

article 550 C.C.P. [3] Their motion shall be dismissed. [4] The conditions for the suspension of the provisional execution of a judgment are well known. Such suspension will begranted when there are major and apparent weaknesses in the judgment appealed from, and when provisional execution is of such anature as to cause great or irreparable harm to the requesting party, with due consideration to the balance of inconvenience[1].

Byexception, in some circumstances, the possibility of an irreparable and disproportionate harm, which would entirely neutralize theappeal, may, in and of itself, justify the suspension of provisional execution[2]. [5] The petitioners' motion does not fulfill these conditions. Although the inscription in appeal is 30 pages long and statesnumerous grounds of appeal, some of which are reiterated forcefully in the motion, it is impossible to conclude that there are major andflagrant weaknesses in the judgment, which is very detailed and carefully reasoned.

Some of the judge's statements may, perhaps, meritsome further examination by this Court, but that is not sufficient for the purposes of suspending provisional execution. [6] Neither have the petitioners established that provisional execution will cause them irreparable harm or that it wouldneutralize their appeal. [7] The trial judge, who is vested with a considerable discretionary power in these matters, under art. 547, second para., C.C.P.,convincingly explained his decision to order provisional execution and his reasons are in accordance with the judgment of our Court inLebeuf c.

Groupe S.N.C.-Lavalin inc., (QC CA), [1995] R.D.J. 366 (C.A.), and the applicable caselaw. [8] For these reasons, the motion IS DISMISSED, with costs. MARIE-FRANCE BICH, J.A.