2010 QCCA 901, 2010 QCCA 901

Byer c. Location Lutex inc. 2010 QCCA 901 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020523-106 ( 500-22-154798-097 ) MINUTES OF THE HEARING DATE: May 3, 2010 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A. JACQUES A. LÉGER, J.A. APPELLANT STEPHEN M. BYER In person RESPONDENT ATTORNEY LOCATION LUTEX INC. Mtre Michel A. Jeanniot PAQUIN PELLETIER & ASSOCIATES ATTORNEY

Motion for the dismissal of the appeal from a judgment rendered on February 24, 2010 by the Honourable Justice Gilles Lareau of the Quebec Court, District of Montréal. Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING MAY 3, 2010 12 h 44 Beginning of the hearing. 12 h 44 Argument by Mtre Jeanniot. 12 h 48 Argument by Mr. Byer. 13 h 07 Reply by Mtre Jeanniot. 13 h 10 By the Court: the motion is taken under advisement. MAY 6, 2010 Judgment – see next page. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The Respondent applies for the

summary dismissal of the appeal in virtue of article 501(4.1) and (5) of the Code of Civil Procedure and, subsidiarily, for the Appellant to be ordered to provide a security of $63,725.18 in order to cover the costs of the proceedings and the amount of the condemnation rendered against him in first instance.

[ 2 ] The Court is of the view that the appeal filed by the Appellant has no reasonable chance of success. [ 3 ] The action instituted by the Respondent is one in revendication of a motor vehicle leased to the Appellant under a leasing contract entered into on May 22, 2003. It is an undisputed fact that the Appellant has not paid any monthly leasing instalments since March 1, 2008. [ 4 ] The dispute arises mainly from the treatment by the Respondent of a sum of $25,000 paid to it by the Appellant at the time the leasing contract was entered into.

The Respondent takes the position that this payment is taxable, as any other monthly payment made under the leasing contract would be; the appellant takes the contrary position that this payment is not taxable and thus, on the one hand, that the lessor violated its information duties under the Consumer Protection Act and, on the other hand, that the

schedule of payment incorporated into the leasing contract is inaccurate. [ 5 ] The judge of first instance decided in favour of the Respondent. There is no authority whatsoever to support the Appellant's position that his initial payment of $25,000 should be exempt from taxes.

There is authority to support the Respondent's position that "tout montant en argent versé par le locataire aux termes du bail" is subject to the applicable sales taxes. [ 6 ] At paragraph 14 of the judgement a quo , the judge of first instance explains why the initial payment made by the Appellant is subject to all applicable taxes, as any other payment made under the leasing contract: Le dépôt remis par BYER en début de bail visait à réduire ses mensualités et à réduire la valeur résiduelle à la fin du terme. Il s'agit incontestablement d'un montant de loyer payé à l'avance, lequel est taxable.

En ce sens, ce dépôt se distingue de la valeur d'un véhicule donné en échange et pour lequel un contribuable a déjà payé les taxes. [ 7 ] The Inscription in Appeal raises no argument which could possibly bring the conclusion of the judge of first instance to be set aside.

As counsel for the Respondent pointed out at the hearing, if the Appellant were right this would mean that a lessee could make a substantial initial payment – say the full value of the contract less one thousand dollars – and thus acquire a vehicle without paying the taxes normally applicable to the purchase of a vehicle. [ 8 ] The appeal has no reasonable chance of success. FOR THESE REASONS: [ 9 ] GRANTS the "Requête de l'intimée en rejet d'appel", with costs; [ 10 ] DISMISSES the appeal, with costs. JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A. JACQUES A. LÉGER, J.A.