An Appeal on the Facts Disguised as a Question of Law
Par Sarah D. Pinsonnault, avocate
By Sarah D. Pinsonnault
In Gestion 1050 de la Montagne
c. Gestion Furst inc., 2014 QCCA
2059, the Petitioners sought an order staying the execution of a Court of
Appeal judgment pending appeal to the Supreme Court of Canada pursuant to
article 522.1 C.C.P and section 65.1(2) of the Supreme Court Act. The criteria to be met for
such an order are the following: (1) the existence of a serious question to be
decided on appeal by the Supreme Court, (2) the applicant for the stay will
suffer irreparable harm if the stay is refused, and (3) the balance of
inconvenience between the parties favours the granting of the stay. The learned
appeal judge sitting alone focused his analysis mainly on the first criterion and
concluded that there was « no serious question of law » being raised. In fact, the
questions submitted by the Petitioners were considered to be ill-disguised
attempts to have an issue of fact retried as a question of principle.
The Respondents own a building that is leased to the Petitioners via an
emphyteutic lease. Before the Superior Court, the Respondents sought the resiliation
of said lease on the grounds that the Petitioners were in default due to their failure
to perform certain contractual obligations, such as paying the rent and
The trial judge ruled that the emphyteutic lease was subject to the
provisions of article 1604 C.C.Q. Accordingly, he considered the contractual
defaults alleged by the Respondents to be of minor importance, and therefore declined
to resiliate the emphyteutic lease.
On appeal, always in line with the criteria set forth in article 1604
C.C.Q., the defaults in question were however viewed differently. The Court of
Appeal found that these defaults were repeated and, as a result, resiliated
The Petitioners therefore seek the stay of execution of this judgment in
light of their application for leave to appeal to the Supreme Court of Canada.
Their notice of appeal raises the following issues:
In their notice of appeal to the Supreme Court, the petitioners allege that
there is a “confusion” in the jurisprudence as to whether article 1604 C.C.Q.
applies to emphyteusis which is a dismemberment of ownership. They raise the
issue as to whether it was appropriate to apply this general rule in the Book
of the Civil Code on the law of Obligations to the emphyteutic lease in the
present case. Secondly, they argue that by failing to address “troublesome
questions of unsettled law”, the Court of Appeal failed to provide adequate
reasons for quashing the judgment of the Superior Court.”
First and foremost, it should be noted that the Petitioners always
maintained, up until now, that article 1604 C.C.Q. applied to emphyteutic
That being said, in order to meet the “serious question” criterion, the
question being submitted must generally be one of public or national importance
or one that raises an issue of legal importance.
The first question raised by the Petitioners on appeal was whether or not
“the application of article 1604 C.C.Q. to an emphyteutic lease pose[s] a
serious question in this case”. Upon further examination by Kasirer, J.A., this
question was however regarded as being essentially fact driven and disguised
as a question of law.
That, along with the general attributes of both issues being raised, led
Kasirer, J.A. to ultimately conclude that there were no serious questions to be
tried on appeal:
“ First, it should be noted that the
petitioners themselves argued at trial and on appeal that the rule in article
1604, para. 2 C.C.Q. applied to the emphyteutic lease here. The Superior Court
applied the rule and the Court of Appeal did not say that was a mistake. Where
the trial judge erred, in the view of the Court of Appeal, was in his measure
of the significance of the default and the repetitive character of the
defaults, both factors in the application of article 1604 C.C.Q.
In other words, the Court of Appeal disagreed with the trial judge on the application
of article 1604 C.C.Q. to the facts of the case.
In the circumstances, the question as to the application of article 1604, from
the law of Obligations, to the contract of emphyteusis is not a serious one.
Most respectfully stated, it appears that the petitioners are raising this
question – against interest – with a view to creating the impression that the
case turns on a matter of principle.
It does not. The difference of opinion between the Court of Appeal and the
Superior Court is one of fact alone. The trial judge considered the defaults to
be of minor importance. The Court of Appeal reviewed the facts and came to the
This raises no serious question of law. Instead, the question of principle is
raised as a futile effort to justify an appeal on the facts.
The second issue raised in the notice of appeal is the following: did the Court
of Appeal fail to give adequate reasons for judgment?
In my view, this is not a serious question that would justify ordering a stay.”
Kasirer J.A. continued his analysis of the
criteria needed to order a stay, all the while acknowledging that the failure
to meet the “serious question” criterion was in and of itself sufficient to
dismiss the Petitioners’ application:
In my view the grounds for appeal are not serious as that term is used in the
decided cases under article 522.1 C.C.P. This alone is enough to dismiss the
application for a stay.
But to repeat: the stay should be refused, in my view, because the petitioners
have failed to raise a serious question in support of their proposed appeal
before the Supreme Court. Even taking into account the seriousness of the harm
to the petitioners and assuming the balance of inconvenience weighs in their
favour, I would dismiss the motion.”
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