2021 QCCA 1054, 2021 QCCA 1054

Freund c. 9143-5818 Québec inc. 2021 QCCA 1054 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029560-216 ( 500-17-116999-213 ) MINUTES OF HEARING DATE: June 18, 2021 THE HONOURABLE MARTIN VAUCLAIR, J.A. APPLICANT COUNSEL pinchos freund Mtre Michael Hollander ( Oiknine & associé

s) By videoconference RESPONDENT COUNSEL 9143-5818 Québec inc . Mtre Sophie M. Cardinal ( Cardinal Léonard Denis, avocats ) By videoconference DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on June 8, 2021 by the Honourable Marie-Claude Lalande of the Superior Court , District of Montreal (Art. 31 para. 2 and 357 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 9:29 Commencement of the hearing. Identification of counsel. Submissions by Mtre Hollander. 9:43 Submissions by Mtre Cardinal. 9:46 Reply by Mtre Hollander. 9:48 Recess of the hearing. 9:53 Resumption of the hearing.

BY THE JUDGE: Judgment – see page 3. 9:55 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] I am seized of an application for leave to appeal from a judgment of the Superior Court of Quebec (Marie-Claude Lalande, J.S.C.), district of Montreal, rendered on June 8, 2021, which dismissed the applicant’s proceeding for the issuance of a provisional injunction. [ 2 ] The applicant was interested in buying the respondent’s commercial property. A conditional promise to purchase was signed in January 2021. The sale was set for March 15, but was postponed to April 15. It did not go as planned.

Instead, the conditions of the promise to purchase generated a conflict. Lawyers became involved. On April 14, the respondent gave the applicant an additional period of time, until May 15, to close the sale. The respondent did not respond until May 14. The parties tried to resolve their dispute, but to no avail. The respondent deemed the promise to purchase to be null and void. The applicant said it was still binding.

The applicant feared the respondent would sell to another buyer and therefore, on June 1, 2021, sought an injunction. [ 3 ] The judge applied the correct legal test and concluded that, as a matter of fact, based on the evidence before her, there was no urgency. The facts are everything but straightforward and the dispute is indeed acute. It was for the judge to decide.

She found that the applicant did not act diligently to issue the proceedings and that there was no evidence of an immediate risk that the respondent would sell its property to a third party. [ 4 ] She concluded that the applicant had satisfied all relevant requirements for the injunction sought (appearance of right, serious or irreparable harm and the balance of convenience) except the urgency requirement.

She wrote: [28] Cette trame factuelle ne permet pas de démontrer qu'il existe une situation dont les conséquences sont sur le point de survenir incessamment. [29] Tout ce qu'on sait, c'est que Monsieur Freund aurait vu les documents sur le bureau de la défenderesse en mars 2021 qui seraient de la nature de d'autres offres d'achat. [ 5 ] At paragraph 21 of his application, the applicant writes: “Appellant respectfully submitting that the Judgment contains no palpable and overriding error in findings of fact by the Judge, under reserve of the fact that despite the Judge's finding at paragraph 34 of the Judgment concerning the "libellé de la pièce P-5”, and even assuming that the Judge committed an error in said regard, the Judge nevertheless concluded that Appellant has an appearance of right under the circumstances and so the question as concerns the present Appeal is moot.” [ 6 ] The applicant concentrates his efforts on an alleged error in law, arguing that the judge misapplied the urgency criterion.

He states that urgency is met when a “co-contracting party has stated its intention not to sell same to its counterpart and indicates its intention to sell same to a third-party, in violation of a promise to purchase”. [ 7 ] First, that position runs counter to the admission that the judge made no error in fact and the paragraph quoted above. Second, the affidavit of the respondent’s representative does not support the risk alleged. In fact, it seems to support the contrary.

The judge found that the evidence did not suggest such a risk and, absent an error, it is a conclusion that was open to her. [ 8 ] The proposed appeal is governed by

article 31 C.C.P . Leave may be granted if the judgment appealed from determines part of the dispute or causes irreparable injury to a party. The jurisprudence is constant that such an order may be appealed if the judgment shows an apparent weakness and there is an urgent need to prevent significant harm. In matters of provisional injunctions, appeals are granted in exceptional circumstances: Lavoie c. Maltais , 2018 QCCA 777 , para. 17 . [ 9 ] The applicant has not meet his burden. I also conclude that the proposed appeal stands no reasonable chance of success and, therefore, I would not grant it.

FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the application for leave to appeal; [ 11 ] THE WHOLE with legal costs.

MARTIN VAUCLAIR, J.A.