2011 QCCA 6, 2011 QCCA 6

Stationnement Safeway Canada ltée c. Montreal (City of) 2011 QCCA 6 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021227-103 (500-22-160640-093) MINUTES OF THE HEARING DATE: January 6, 2011 THE HONOURABLE GUY COURNOYER, J.A. (AD HOC) PETITIONER ATTORNEY STATIONNEMENT SAFEWAY CANADA LTÉE Mtre Philip Aspler ASPLER & ASSOCIÉS RESPONDENT ATTORNEY CITY OF MONTREAL Mtre Chantale Beaudin CHAREST GAGNIER BIRON DAGENAIS

MOTION FOR LEAVE TO APPEAL FROM AN INTERLOCUTORY JUDGMENT RENDERED ON NOVEMBER 10, 2010 BY THE HON. FRANÇOIS BOUSQUET FROM THE QUEBEC COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:35 Commencement of the hearing. 9:37 Submission by Mtre Aspler. 9:58 Submission by Mtre Beaudin. 10:02 Rebuttal by Mtre Aspler. 10:05 Suspension. 10:21 Resumption of the hearing. Continuation of Mtre Aspler's rebuttal. 10:24 Suspension. 10:50 Resumption of the hearing. BY THE JUDGE. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] The petitioner is seeking leave to appeal from a judgment rendered on November 10, 2010 by Judge François Bousquet, Court of Quebec, Civil chamber, District of Montreal where Judge Bousquet relieved the City of Montreal of its failure to act within the peremptory time limit of 180 days. [ 2 ] The judge came to the conclusion that it was in fact impossible for the City to act on the basis of a reasonable error in respect of the

interpretation of several judgments on the calculation of the delay.

[ 3 ] These judgments were not entirely clear and one had an unfortunate clerical error. [ 4 ] The judge found that no negligence was involved and the error was made in good faith. Contrary to the submission of the petitioner both the motion and the affidavit submitted supports the judge findings. [ 5 ] The petitioner alleges that the judge failed to weigh his prejudice, i.e. the impossibility to institute his recourse in warranty.

While it is true that there are no explicit findings to that effect, there are clearly implicit. [ 6 ] Further, the petitioner failed to exercise its recourse within the allocated time and it cannot blame the other party or the judgment issued by the motion judge in that respect. It would also appear, as submitted by the City of Montreal, that the petitioner is not precluded, given

article 2896 C.C.Q. , paragraph 2, to exercise its recourse in warranty. [ 7 ] A decision under 110.1 C.P.C. is a situation where we are at the heart of the exercise of judicial discretion as stated by this Court in Level Music c. Nyungure , 2006 QCCA 1252 and by Justice Thibault in Pakdel c. Bell , 2009 QCCA 1698 . [ 8 ] The petitioner has not demonstrated an error by the motion judge. [ 9 ] For these reasons, the motion to leave to appeal is dismissed, with costs. GUY COURNOYER, J.A. (AD HOC)