2016 QCCA 1021, 2016 QCCA 1021

Li c. Wang 2016 QCCA 1021 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024834-145 (550-17-005774-110) MINUTES OF THE HEARING DATE: June 13, 2016 THE HONOURABLE NICHOLAS KASIRER, J.A. APPELLANT ATTORNEY JUN LI Mtre charles daviault (Gowling WLG (Canada) S.E.N.C.R.L., s.r.l.) RESPONDENT ATTORNEYS ZAO HUI WANG Mtre PATRICK FERLAND Mtre NICOLAS ROCHE (LCM Avocats inc.) IMPLEADED PARTIES ATTORNEY 6734995 CANADA INC. 6735011 CANADA INC. DESCRIPTION: Application of the Respondent to Suspend the Execution of a Judgment Pending Appeal to the Supreme Court of Canada. (Articles 390(2) C.C.P . and 65.1(2) of the Supreme Court Act )

Clerk: Mihary Andrianaivo Courtroom: RC-18 HEARING 14:00 Commencement of the hearing. Preliminary comments by the Judge. 14:02 Submissions by Mtre Ferland. 14:25 Submissions by Mtre Daviault. 14:41 Rebuttal by Mtre Ferland. 14:44 Recess. 15:12 Resumption of the hearing. BY THE JUDGE: Judgment – See page 3. 15:16 Exchanges between the Judge and the Parties. 15:20 End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Pursuant to

article 390, para. 2 C.C.P., Zhao Hui Wang asks me to suspend execution of a judgment of this Court, rendered on April 12, 2016, pending the outcome of his appeal to the Supreme Court of Canada. [ 2 ] In connection with an oppression remedy brought by Jun Li, the Court ordered the petitioner to purchase shares held by Mr Li in two companies for a total price of $428,571, plus interest, which had been Mr Wang’s original offer for the shares. The Court held that Mr Wang had made an admission that this was the value of the shares, which admission had not been revoked.

In so deciding, the Court reversed a corrected judgment of the Superior Court which had ordered that the shares be transferred to Mr Wang for a consideration of zero cost, based on the judge’s revised estimate of the fair market value of the shares. [ 3 ] In his proposed appeal to the Supreme Court which is annexed to the motion, petitioner Wang intends to present different arguments in support of his view that this Court erred in its determination that his original offer constituted an admission of the value of the shares and that the judge was wrong to correct her judgment. *** [ 4 ] The criteria that must be established by the petitioner in order to obtain an order suspending execution of the judgment of this Court pending appeal are well known: (1) the existence of a serious question to be decided on appeal; (2) that he will suffer serious prejudice, sometimes characterized as irreparable, if his application for suspension is not granted; and (3) that the balance of inconvenience between the parties favours the granting of suspension .

These criteria, developed pursuant to

article 522.1 of the former C.C.P. and

section 65.1 of the Supreme Court Act , remain relevant under

article 390 of the new C.C.P., as my colleague Mainville J.A. recently noted in Pereira v. Commission des transports du Québec , 2016 QCCA 765 . [ 5 ] Notwithstanding the careful reasons for judgment in this Court, a preliminary review of the arguments set forth in the application for leave to appeal suggests to me that the criterion of a “serious question” has been met. I hasten to add that I say nothing further on the possible success of these arguments, nor do I comment on whether or not these questions meet the standard for leave applied by the Supreme Court: see, e.g. , Auberge des Glycines inc. v.

Montreal (Ville de) , 2012 QCCA 884 , para. [13] (per St-Pierre, J.A.). But the petitioner had raised serious questions, inter alia , as to procedural fairness and rules relating to revocation of admissions and the extent of powers of a judge to correct a judgment. These questions are arguable on appeal as presented, as opposed to futile or plainly without merit.

[ 6 ] Petitioner Wang faces serious financial harm – harm that might fairly be characterized as irreparable on the basis of the motion – should suspension not be granted. In his motion, he explains that he would need third-party financing to pay the share-transfer price ordered by this Court, which would ultimately threaten his stake in the companies.

It is not enough to say, as did counsel for Mr Li, that his client could undertake to hold on to the shares for the duration of proceedings in the Supreme Court and remit them if he is unsuccessful when one considers the differences of opinion between the parties as how the business should be operated. [ 7 ] Suspension would cause inconvenience to Mr Li, to be sure, but in my view the balance of inconvenience plainly favours granting the suspension.

I take due note of Mr Wang’s undertaking, made in paragraph 42 of his motion, not to dispose of his 55% stake in the companies pending the judgment of the Supreme Court. [ 8 ] FOR THE FOREGOING REASONS , the undersigned: [ 9 ] GRANTS the motion, [ 10 ] SUSPENDS execution of the judgment rendered by the Court on April 12, 2016 until 45 days after judgment of the Supreme Court on the petitioner’s application for leave to appeal or, if leave is granted, final judgment on the merits; [ 11 ] Without costs. NICHOLAS KASIRER, J.A.