2014 QCCA 1369, 2014 QCCA 1369

Kalfa c. Goldeneye Investments Inc. 2014 QCCA 1369 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024454-142 ( 500-17-078176-131 ) MINUTES OF THE HEARING DATE: July 11, 2014 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARIE ST-PIERRE , J.A. MANON SAVARD, J.A. APPELLANTS COUNSEL TURAN KALFA 9259-8564 QUÉBEC INC. Mtre Stéphane Richer BORDEN LADNER GERVAIS, S.E.N.C.R.L., S.R.L. RESPONDENT COUNSEL GOLDENEYE INVESTMENTS INC. Mtre Paul Déry-Goldberg SPIEGEL, SOHMER, INC.

Motion to dismiss the appeal from a judgment rendered on April 23, 2014 by the Honourable Mr. Justice Robert Castiglio of the Superior Court, District of Montreal (Art. 501 para. 1

(4.1) C.p.c .) Clerk: Nadia Samy Courtroom: Pierre-Basile-Mignault HEARING 12:29 Commencement of hearing. 12:29 Mtre Déry-Goldberg has nothing to add to his motion. 12:29 Submissions by Mtre Richer. 12:34 Rebuttal by Mtre Déry-Goldberg. 12:42 Recess. 12:45 Resumption. 12:45 Unanimous judgment rendered by the Honourable Mr. Justice Nicholas Kasirer, J.A. – see page 3. 12:47 Conclusion of hearing.

Clerk BY THE COURT JUDGMENT [ 1 ] We are unanimously of the view that the appeal has no reasonable prospect of success. [ 2 ] First, it should be noted that, contrary to what the appellants argue, the judge made no error as to the sequence of events. In paragraph [70] of his reasons, he clearly notes that P-3 was signed first. He read, however, D-1 and P-3 in light of all the facts, observed the agreements to be interrelated, and decided that the common intention of the parties was to conclude a counter letter to the main agreement for the sale of shares.

[ 3 ] His conclusion that the total amount of the sale was $4,250,000 thus rests on an

interpretation of the agreements based on the intention of the parties. He considered the whole of their dealings and held that they decided to keep the balance of sale of $250,000 “private” for reasons best known to themselves. The entire agreement clause could not, according to the intention of the parties as expressed in both agreements, exclude the amount of the balance. [ 4 ] This conclusion, as well as the determinations related to the context of business relationship, is findings of fact that deserve deference on appeal. The appellants wish to retry this very matter decided by the trial judge.

Their inscription in appeal fails, however, to point to a palpable and overriding error or other reviewable error that would allow this Court to disturb the conclusions of the Superior Court. [ 5 ] The appeal thus has no reasonable prospect of success. FOR THE AFOREMENTIONED REASONS, THE COURT : [ 6 ] GRANTS the motion to dismiss the appeal, with costs; [ 7 ] DISMISSES the appeal, with costs. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. MANON SAVARD, J.A.