2012 QCCA 399, 2012 QCCA 399

Phan c. Syndicate Côte Ouest Phase II 2012 QCCA 399 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022430-128 ( 500-22-186626-118 ) MINUTES OF THE HEARING DATE: March 1, 2012 THE HONOURABLE ALLAN R. HILTON, J.A. PETITIONER ATTORNEY THANH PHAN ABSENT RESPONDENT ATTORNEY SYNDICATE CÔTE OUEST PHASE II SEQUOIA GESTION IMMOBILIÈRE Mtre Jean-François Gendron (ABSENT) RESO CONDO INC. MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON FEBRUARY 10, 2012 BY THE HON. FRANÇOIS BOUSQUET OF THE QUEBEC COURT DISTRICT OF MONTREAL

Clerk: Annick Nguyen Court Room: —— HEARING Continuation of February 29, 2012, hearing. Judgment- See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] Without endorsing the manner in which the adjudication of the respondents' motion to dismiss proceeded in the Court of Quebec, or commenting on the merits of the claim to obtain documents from the respondent syndicate, the motions judge correctly held that the petitioner before me lacked the necessary legal standing required by

article 55 C.C.P . to bring legal proceedings against the respondents. [ 2 ] The fact that a judge of the Superior Court did not dismiss the applicant's motion introductive of suit was based on that court's lack of jurisdiction to entertain the claim, which explains why he transferred it to the Court of Quebec. In doing so, the Superior Court judge did not determine that the applicant's motion was not susceptible of being dismissed for other reasons, including lack of standing. [ 3 ] To the extent any remedy lies, it belongs to the petitioner's wife, Mrs.

Thu Nguyen, and not the petitioner, who acknowledges he is not the owner of the unit. Mrs. Nguyen cannot be represented in any such proceedings by her husband based on

article 397 C.C.Q ., which does not apply to the circumstances under review. In the event Mrs. Nguyen requires assistance to initiate legal proceedings in her own name, she will have to engage the services of a lawyer to do so, as only a member of the Bar is entitled to act on behalf of others in legal proceedings of this nature. [ 4 ] The proposed question of law is therefore one that does not fall within the ambit of

article 511 C.C.P ., especially in light of the fact that Ms. Nguyen is free to initiate legal proceedings against the respondents providing all pre-requisite conditions, including prescription, are respected. [ 5 ] The petitioner's motion for leave to appeal is therefore dismissed, without costs in the circumstances. ALLAN R. HILTON, J.A.