2013 QCCA 799, 2013 QCCA 799

Andev Investments Inc. c. Weiner 2013 QCCA 799 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023363-138 ( 500-17-034375-066 ) MINUTES OF THE HEARING DATE: April 29, 2013 CORAM: THE HONOURABLE JULIE DUTIL, J.A. NICHOLAS KASIRER, J.A. JACQUES R. FOURNIER, J.A. APPELLANT ATTORNEY ANDEV INVESTMENTS INC. Mtre Alan M. Stein RESPONDENT ATTORNEY JOSEPH WEINER Mtre Jason Dolman FISHMAN FLANZ MELAND PAQUIN

Motion to dismiss the appeal from a judgment rendered on January 29, 2013 by the Honourable Justice Claude Dallaire of the Superior Court, District of Montreal. Motion for leave to appeal de bene esse . Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 10 h 11 Beginning of the hearing. 10 h 11 Mtre Dolman has nothing to add to his motion. 10 h 12 Submission by Mtre Stein. 10 h 28 Recess. 10 h 35 Resumption of the hearing. 10 h 35 By the Court : judgment – see next page.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] Andev Investments Inc. seeks leave to appeal de bene esse from a judgment of the Superior Court, District of Montreal (the Honourable Claude Dallaire presiding), rendered on January 29, 2013, which dismissed the company's claim for repayment of a simple loan with interest. [ 2 ] We are of the view that leave to appeal is required because the object of the dispute in appeal, including the principal of the loan, the interest thereupon, and the additional indemnity provided by law, is less than $50,000. [ 3 ] The trial judge decided that Andev had failed to prove, on a balance of probabilities, that it had made the simple loan alleged to Joseph Weiner (paragraphs [66] to [73] of the trial judgment). [ 4 ] In its motion for leave, Andev cites excerpts from the evidence presented at trial that, it says, suggests that the trial judge erred when she concluded that there was no "meeting of minds" for a simple loan between the parties. [ 5 ] This highly factual determination turned in large part on the judge's appreciation of the credibility of witnesses, and her sense

that Mr. Weiner's testimony denying the existence of the loan was reliable. Barring a palpable and overriding error, it is deserving of deference on appeal. [ 6 ] But even if the petitioner succeeded in establishing a reviewable error, that error would not suffice for leave to be granted. [ 7 ] Notwithstanding counsel's able argument, Andev has failed to show the case raises "a question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents" (article 26, paragraph 2, C.C.P.). In our view, the matter in issue is not one which ought to be submitted to the Court.

FOR THESE REASONS , the Court: [ 8 ] GRANTS the motion to dismiss the appeal, with costs; [ 9 ] DISMISSES the appeal, with costs; [ 10 ] DISMISSES the motion for leave to appeal de bene esse , without costs. JULIE DUTIL, J.A. NICHOLAS KASIRER, J.A. JACQUES R. FOURNIER, J.A.