2019 QCCA 2219, 2019 QCCA 2219

CTI Capital valeurs mobilières inc. c. Nassif 2019 QCCA 2219 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500- 09-028757-193, 500-09-028758-191 ( 500-17- 079005-131, 500-17-079157-130) MINUTES OF HEARING DATE : December 27, 2019 L’HONORABLE PATRICK HEALY, J.C.A. 500-09-028757-193 (500-17-079005-131) APPLICANT COUNSEL CTI CAPITAL VALEURS MOBILIÈRES INC. Me PHILIPE A. COUTURE-MÉNARD ( Miller Thomson ) RESPONDENT COUNSEL MILAD NASSIF Me DANIELLE OIKNINE ( Oiknine & Associé

s) IMPLEADED PARTY COUNSEL BERNARD CASIMIR Me MARC EMILE BARCHICHAT ( MEB Legal Inc ) 500-09-028758-191 (500-17-079157-130) APPLICANT COUNSEL CTI CAPITAL VALEURS MOBILIÈRES INC. Me PHILIPE A. COUTURE-MÉNARD ( Miller Thomson ) RESPONDENT COUNSEL MILAD NASSIF Me DANIELLE OIKNINE ( Oiknine & Associé

s) IMPLEADED PARTIES COUNSEL

BERNARD CASIMIR Me MARC BARCHICHAT ( MEB Legal Inc ) VIET BUU JITNEYTRADE INC. Absent and unrepresented DESCRIPTION : Motions to suspend provisional execution (Art. 660 et s. C.p.c. ) . Clerk at the hearing : Mélanie Camiré Courtroom : RC-18 AUDITION 9 :30 Commencement of the hearing. Identification of counsel. 9 :31 Exchanges between the judge and counsel concerning surety ship at the Court Registry. 9 :47 Recess of the hearing. 9 :56 Resumption of the hearing. BY THE JUDGE : Judgment – see page 3. 10 :00 End of hearing. Mélanie Camiré, Clerk at the hearing

JUDGMENT [ 1 ] Before me are two motions under article 661(2) C.C.P. that seek suspension of the provisional execution of a judgment given by the Superior Court on 19 December 2019 (Honourable Gérard Dugré, J.S.C.).

Among the conclusions of that judgment are these three: [292] ORDONNE à CTI Capital Valeurs Mobilières inc. de verser à Milad Nassif la totalité du montant qu’elle détient en fidéicommis, et ce, dans les dix (10) jours de la signification du présent jugement; [293] ORDONNE l’exécution provisoire nonobstant appel de l’ordonnance émise au par. [292]; [294] ORDONNE à Milad Nassif de signifier le présent jugement à CTI Capital Valeurs Mobilières inc. et à ses procureurs . [ 2 ] The motions before me today seek specifically the suspension of the order for execution of judgment notwithstanding appeal that is found in paragraphs [292] and [293] because those are the only conclusions in the judgment for which provisional execution was ordered.

The motions are opposed by the respondent Nassif. [ 3 ] There are two motions because the appellant has undertaken two appeals from the same judgment. [1] This is because there were two distinct actions before the trial judge. [2] In one action the appellant was the defendant; in the other it was impleaded as mise- en-cause . The conclusions in paragraphs [292] – [294] apply to the appellant in both files.

Hence, with respect to both files, the appellant seeks to suspend the execution of judgment ordered in paragraphs [292] and [293] of the judgment. [ 4 ] The two motions were filed on 23 December to be heard on 27 December 2019. The urgency is explained by the delay of ten days from the date of the notice of judgment. This urgency nevertheless explains the haste with which the motions were prepared, filed and presented. It also explains, in part, why the motions are opposed by the respondent Nassif.

It appears that these lengthy proceedings have forced upon the respondent considerable financial strain. [ 5 ] In my view undue haste in the presentation of these motions is not in the interests of justice. The trial proceeded for thirteen days between 7 and 23 January 2019. The judgment of sixty-two (62) pages [3] was given on 19 December 2019. The judgment is moderately complex and requires careful assessment to determine whether there is any apparent weakness. The amounts at issue are considerable.

At this date the pleadings filed to date do not make clear the position of the various parties with respect to the appellant’s motions or other appeals. Further, the proceedings before me disclose no element of such pressing urgency that a brief and temporary delay in the presentation of the motions would cause serious prejudice.

At this date any consideration of the balance of convenience or inconvenience should be governed by prudence. [ 6 ] The prudent course is to relieve the urgency created by the delay of ten days and suspend the execution of judgment until the motions can be presented at the earliest convenient date. At the same time I recognize that the respondent Nassif has a clear interest to ensure that the amounts contemplated by the judgment in first instance are secured in the event that the judgment is confirmed in appeal.

[ 7 ] According to article 661(2), I will order that the conclusion for provisional execution in paragraphs [292] and [293] of the judgment be stayed until the motions are presented with the necessary documentation and jurisprudence. [4] According to

article 364 C.C.P., I will also order that the amount described in paragraph [292] of the judgment be deposited with the court by the appellant as a surety.

FOR THESE REASONS, THE UNDERSIGNED: [ 8 ] EXTENDS to 13 January 2020 the filing of amended and completed motions for the suspension of provisional execution of the order in paragraph [293] of the judgment of the Superior Court; [ 9 ] STAYS the order for provisional execution in paragraph [293] of the judgment of the Superior Court until the motions are heard on 22 January 2020; [ 10 ] ORDERS that the appellant deposit, not later than 13 January 2020, a surety in the amount described in paragraph [292] of the judgment; [ 11 ] TAKES NOTE that counsel for the appellant will disclose to counsel for the respondent, not later than 13 January 2020, the full amount of the surety described in the previous paragraph of these conclusions; [ 12 ] THE WHOLE with costs of justice to follow.

PATRICK HEALY, J.C.A.