2013 QCCA 80, 2013 QCCA 80

Appartements Club Sommet inc. c. Syndicate of Le Parc Co-Ownership 2013 QCCA 80 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023201-122 ( 500-17-064300-117 ) MINUTES OF THE HEARING DATE: January 14, 2013 THE HONOURABLE JACQUES R. FOURNIER, J.A. PETITIONER ATTORNEY(

S) LES APPARTEMENTS CLUB SOMMET INC. Me Daniel Cooper RESPONDENT(

S) ATTORNEY(

S) THE SYNDICATE OF LE PARC CO- OWNERSHIP ET AL. Me Jean G. Robert LETTE & ASSOCIÉS MOTION FOR LEAVE TO APPEAL FROM AN INTERLOCUTORY JUDGMENT OF THE SUPERIOR COURT RENDERED ON DECEMBER 4, 2012, BY THE HONOURABLE WILBROD DÉCARIE.

Clerk: Elena Captari Court Room: RC.18 HEARING 11h30: Commencement of the hearing. Identification of counsel. 11h30: Submissions by Mtre Cooper. 11h51: Suspension of the hearing. 11h54: Resumption of the hearing. Judgment. See page 3. 11h56: End of the hearing.

Elena Captari Clerk JUDGMENT [ 1 ] The plaintiff has sued the respondents seeking inter alia nullity of decisions taken by the defendant, the syndicate of Le Parc Co- Ownership, the rendering of an account by defendants and the destitution of two directors. [ 2 ] Eighteen months after the institution of the action, the defendants filed a cross demand seeking damages on the basis of defamation. [ 3 ] Plaintiff alleging that the defendants cross demand was prescribed filed a motion to dismiss. [ 4 ] The motion judge dismissed the motion on the basis that the cross demand and the primary action had the same source. [ 5 ] Plaintiff is now seeking leave to appeal from this judgement. [ 6 ] It is well-established jurisprudence that a judgement dismissing a motion to dismiss an action based on section 165(4) of the Code of Civil Procedure is not subject to appeal. [ 7 ] It is an interlocutory judgement that is not binding on the trial judge and final judgement can remedy.

Therefore it does not meet the criterion of

section 29 CCP. [ 8 ] Therefore the motion is DISMISSED , with costs.

THE HONOURABLE JACQUES R. FOURNIER, J.A.