2015 QCCA 797, 2015 QCCA 797

Cohen & Rubin Architectes c. Costakos 2015 QCCA 797 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025144-155 (500-17-083949-142) MINUTES OF THE HEARING DATE: April 15, 2015 THE HONOURABLE MADAM JUSTICE GENEVIÈVE MARCOTTE, J.A. PETITIONER COUNSEL COHEN & RUBIN ARCHITECTES MICHAEL RUBIN MAGGY COHEN Mtre LIONEL ROSSDEUTSCHER (Lionel Rossdeutscher & Associates) RESPONDENTS COUNSEL CONSTANTINA KANAVAROU COSTAKOS FOTINI KOSTAKOS Mtre OLIVIER J.

BRAULT (Allali Brault) DESCRIPTION: Motion for leave to appeal from an interlocutory judgment rendered on February 27, 2015 by the honourable Karen Jodoin from the Superior Court in the district of Montreal. (Art. 29, 494 & 511 C .C.P. ) Clerk: Asma Berrak Courtroom: RC-18

HEARING 10 :12 Commencement of the hearing. Identification of counsel. Comments by the Judge. 10:13 Submission by Mtre Rossdeutscher. 10:31 Judgment-see page 3. Conclusion of the hearing. Clerk BY THE JUDGE JUDGMENT [ 1 ] The Petitioners are seeking permission to appeal of an interlocutory judgment rendered on February 27, 2015 by the Superior Court of the District of Montreal (Honorable Karen Kear-Jodoin) which dismissed their Motion to dismiss and to declare Plaintiff’s Motion for declaratory judgment, permanent injunction and damages abusive under

article 54.1 C.C.P. [ 2 ] In her decision, Kear-Jodoin J. underlined the fact that this is Defendants’ second Motion to dismiss under

article 54.1 C.P.C. and that, by judgement dated September 29, 2014, Silcoff J. refused to grant the dismissal in favour of the four Petitioners, stating that: “There is no evidence at the present time that these proceedings, with respect to these defendants are either vexatious or frivolous…”. [ 3 ] Moreover, Kear-Jodoin J. stated that, while the testimony of Ms. Fotini Kostakos may show that the claim for damages is excessive or unwarranted, the Plaintiffs may nonetheless be entitled to the injunctive relief sought, thus preventing her from concluding that the action is void of all merit.

She also underlined that the Plaintiff’s motion cannot be dismissed on the basis that Mrs. Costakos has failed to attend the examination on discovery on December 1, 2014 as ordered by judgment, given that a doctor’s note was provided to explain her current state of health which precluded her from attending an examination the discovery. [ 4 ] In the matter of Elitis Pharma inc. c. RX Job inc. [1] , this Court underlined that, prior to granting leave to appeal of an interlocutory judgment, the judge in chambers must be satisfied that this judgment is one contemplated by the first paragraph of

article 29 C.P.C., in that it either decides the issues in part, orders something that cannot be remedied by final judgement or unnecessarily delays the matter. [ 5 ] More recently in Cree Nation of Mistissini c. Baie–James (Municipalité de) [2] , my colleague Bich J. reiterated the limits of the statutory competence of the judge sitting in chambers, referring to the principles set out in Elitis Pharma inc. [3] . [ 6 ] It is a well established principle that the judgment dismissing a Motion to dismiss does not fall within one of the situations of

article 29 C .P.C. : its consequences can be remedied at trial, it will have no binding effect on the judge hearing the merits of the case and it does not decide the issues of the case in part. [ 7 ] The jurisprudence has nevertheless developed four exceptions which may allow a party to successfully seek leave to appeal of a judgment dismissing a motion to dismiss, where the matter raises an issue of 1) competence, 2) lis penden , 3) res judicata , or where (4) it raises a new issue of law, or an issue of public or substantive law that requires to be decided immediately. [ 8 ] Here, none of these exceptions have been alleged by the Petitioners nor have been demonstrated at the hearing of the motion. [ 9 ] The judgment for which the Petitioners are seeking leave to appeal simply does not fall under

article 29 C.P.C. and I therefore have no competence to exercise the judicial discretion contemplated under

article 511 C.P.C. to grant leave as requested. FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the Motion for leave to appeal;

[ 11 ] WITH COSTS . GENEVIÈVE MARCOTTE , J.A.