When a court ruling on a matter of public interest is covered by the media, it sometimes creates the impression that the judge's conclusion is immovable, set in stone, but that is not necessarily the case.
That is the impression conveyed by media coverage of the now famous judgment handed down on July 16 by Quebec Superior Court Judge Peter Kalichman in the Hengyun affair, which essentially states that because the tenant, due to the government decree adopted in the context of the pandemic caused by COVID-19, could not operate his activities in the leased premises for the purposes provided for in the lease, he did not have to pay the rent, even in the presence of a force majeure clause in the lease obliging the tenant to respect his financial obligations.
Before concluding that a judgment has an absolute impact, it is necessary to consider the stare decisis rule, i.e. the principle that a judgment constitutes a "precedent".
Thus, in the case of judgements by the Supreme Court of Canada, the rule of precedent applies (subject to certain restrictions) to the ratio decidendi of the judgment, i.e. the decisive reason for the judgment (and not to incidental comments, known as obiter dictum). The principle thus established by ratio decidendi then becomes almost absolute and must subsequently be followed.
In the Quebec Court of Appeal, consistent case law has, in principle, an impact similar to that of the Supreme Court's stare decisis (even if the Court of Quebec itself does not feel bound in an absolute manner by its previous decisions).
As for decisions by the Quebec Superior Court and the Court of Quebec, an isolated decision is not decisive. It is the opinion of a judge, an example that can be quoted, and its interest may vary depending on diverse factors (such as the reputation of the judge who drafted it). Another judge may or may not subsequently ratify it, but it does not have the force of law.
The judgement in the Hengyun affair was rendered by a Superior Court judge and thus, with all due consideration and respect, it is not set in stone. It is a substantial judgment, rendered by a judge who is obviously competent, but another judge might disagree with that ruling. It might even be contradicted by a judgement from the Court of Appeal, which would have a more substantial impact.
On the other hand, one must also be very careful as regards the context and scope of certain judgements. For example, the ruling in the Hengyun affair was cited in another case involving Pontegadea Canada Inc. and GAP (Canada) Inc. That judgment was rendered in the context of an application for the issuance of a safeguard order submitted by Pontegadea to the Superior Court. Pontegadeau alleged urgency and irreparable harm.
As Judge Lucas noted in that affair, a safeguard order is an exceptional and urgent conservatory measure issued for a limited period of time, and is not the usual means of obtaining payment of arrears. Based on those criteria (and certain other facts), the application for an exceptional measure was denied on the basis of the principles enunciated in the Hengyun case, whose impact on the case was fairly limited.
René Gauthier
Avocat associé
