2012 QCCA 1518, 2012 QCCA 1518

DRC Kaucuk San. Ve Tic., a.s. c. Transflex Canada ltée 2012 QCCA 1518 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022926-125 (505-17-005276-110) MINUTES OF THE HEARING DATE: August 28, 2012 THE HONOURABLE ALLAN R. HILTON, J.A. PETITIONER ATTORNEY DRC KAUCUK SAN. VE TIC. A.S. Mtre Nicholas J. Spillane (ABSENT) BRISSET BISHOP RESPONDENT ATTORNEY TRANSFLEX CANADA LTÉE Mtre Antoine Bigenwald (ABSENT) FRATICELLI PROVOST

MOTION TO LEAVE TO APPEAL A JUDGMENT RENDERED ON JULY 17, 2012 BY THE HON. PEPITA CAPRIOLO OF THE SUPERIOR COURT DISTRICT OF LONGUEUIL Clerk: Annick Nguyen Court Room: —— HEARING Continuation of August 27, 2012, hearing. Counsel are advised that reasons for judgment will be rendered on the minutes of the hearing and their presence in Court is not required. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] The applicant seeks leave to appeal an interlocutory judgment of the Superior Court that dismissed its amended motion to dismiss based on res judicata or lis pendens , and alternatively, to dismiss based on a jurisdiction clause in a master agreement between the parties or forum non conveniens . [ 2 ] The applicant's motion in the Superior Court was presented more than 11 months after the service of the respondent's action against it.

During that time, the applicant appeared through counsel without reserve, signed a timetable agreement for the conduct of the litigation, sought and obtained particulars, and examined a representative of the respondent on discovery. [ 3 ] Whatever the seriousness of its other arguments may be, it is difficult to imagine that a panel of this Court would disagree with the motion's judge that the applicant had, by its conduct, attorned to the jurisdiction of the Court based on the record she had before her.

It is also doubtful that the Court would share the applicant's view as to the extent and applicability of the jurisdiction clause for the reasons the motion's judge gave. [ 4 ] In any event, the judge seized of the merits is not bound by the conclusions in law of the motion's judge, which allows the applicant to reassert them at trial if it is so inclined on whatever record that may then be developed.

[ 5 ] The motion for leave to appeal is dismissed with costs. ALLAN R. HILTON, J.A.