2016 QCCA 596, 2016 QCCA 596

Metcap Living Management Inc. c. Dépanneur Diane inc. 2016 QCCA 596 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025994-161 (500-17-092288-169) MINUTES OF THE HEARING DATE: April 7, 2016 THE HONOURABLE geneviève marcotte, J.A. PETITIONERS ATTORNEY metcap living management inc. place dorchester ari holdings inc. Mtre james woods ( Lapointe Rosenstein Marchand Melançon, s.e.n.c.r.

l) RESPONDENTS ATTORNEY dépanneur diane inc. ewa winiarska Mtre andrew wallace bird Mtre steven korda ( Korda & Associé

s) DESCRIPTION: Application for leave to appeal an interlocutory judgment and to stay the interlocutory injunction rendered on March 29, 2016 by the Honourable Guylène Beaugé of the Superior Court, district of Montreal (Art. 31, paragraph 2, 357 and 514, paragraph 2 C.C.P. )

Clerk: Mihary Andrianaivo Courtroom: RC-18 HEARING 9:31 Continuation of the hearing of April 6, 2016. Both Mtre Woods and Mtre Bird are present. BY THE JUDGE: Judgment – see page 3.

End of the hearing Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Metcap Living Management Inc. and Place Dorchester Ari Holdings Inc., respectively, manager and landlord/owner of a commercial and residential building located on St-Mathieu street in Montreal (collectively “ the Landlord ”), are seeking leave to appeal an interlocutory injunction rendered on March 29, 2016 by the Superior Court (the Honourable Guylène Beaugé), as well as a stay of this injunction granted in favour of the Respondents, Dépanneur Diane inc. and its representative Ewa Winiarska (collectively “ the Tenant ”). [ 2 ] The judgment ordered that the Landlord provide the Tenant with unfettered access to the leased premises until final judgment or settlement, and that it deposit the monthly rent in the interval, in accordance with articles 215 and 216 n.C.C.P., with the condition that the monies not be remitted to the Landlord until final settlement or judgment. [ 3 ] To obtain leave, the Landlord must demonstrate that the judgment satisfies the criteria of

article 31 n.C.C.P. , in that it determines part of the dispute or causes irremediable prejudice and that the appeal being sought is in the best interests of justice and complies with the rule of proportionality in accordance with articles 9 and 18 n.C.C.P. [1] [ 4 ] In my view, the Landlord has not succeeded in this demonstration. [ 5 ] The Landlord asserts that it is entitled to terminate the lease ipso facto in light of the wording of the commercial lease, given the Tenant’s failure to pay the rent for the months of December 2015 and January 2016.

The Tenant claims, on the other hand, that it was justified to withhold the rent because of the Landlord’s failure to meet its own contractual obligations under the commercial lease. [ 6 ] In my view, the judgment under attack has not determined part of the dispute and there is no irremediable prejudice suffered by the Landlord as a result of the order.

The Tenant is granted access to the premises until final resolution of the matter, but must deposit the monthly rent. [ 7 ] The judgment as rendered does not determine the dispute (in whole or in part) and the debate regarding the Landlord’s right to terminate the lease along with the extent of the parties’ obligations and their performance of same remains to be decided on the merits.

Meanwhile, the injunctive order serves to protect the rights of both parties. [ 8 ] Based on the foregoing, I see no basis to grant leave to appeal and, as a result the request for a stay of the interlocutory injunction becomes moot. FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] DISMISSES the Application for leave to appeal an interlocutory judgment and to stay the interlocutory injunction rendered on March 29, 2016;

[ 10 ] WITH LEGAL COSTS. geneviève marcotte, J.A.