2017 QCCA 1298, 2017 QCCA 1298

Geci Española c. Government of The Dominican Republic 2017 QCCA 1298 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026899-179, 500-09-026900-175 (500-11-051832-166) MINUTES OF THE HEARING DATE: August 28, 2017 CORAM: THE HONOURABLE allan r. hilton , J.A. nicholas kasirer , J.A. MARie st-pierre , J.A. N o : 500-09-026899-179 APPLICANT COUNSEL GECI ESPAŇOLA, S.A.

Mtre OLIVIER LAURENDEAU Mtre thomas voglimacci (Laurendeau, Rasic s.e.n.c.) RESPONDENTS COUNSEL THE GOVERNMENT OF THE DOMINICAN REPUBLIC and THE INSTITUTO DOMINICANO DE AVIACIÒN CIVIL (DOMINICAN INSTITUTE OF CIVIL AVIATION, or IDAC) Mtre PATRICK GIRARD Mtre NATHALIE NOUVET (Stikeman Elliott, s.e.n.c.r.l., s.r.l.) IMPLEADED PARTIES Mtre STEPHEN L. DRYMER PERMANENT COURT OF ARBITRATION

N o : 500-09-026900-175 APPELLANT COUNSEL GECI ESPAŇOLA, S.A. Mtre OLIVIER LAURENDEAU Mtre thomas voglimacci (Laurendeau Rasic, s.e.n.c.) RESPONDENTS COUNSEL THE GOVERNMENT OF THE DOMINICAN REPUBLIC and THE INSTITUTO DOMINICANO DE AVIACIÒN CIVIL (DOMINICAN INSTITUTE OF CIVIL AVIATION, or IDAC) Mtre patrick girard Mtre nathalie nouvet (Stikeman Elliott, s.e.n.c.r.l., s.r.l.) IMPLEADED PARTIES Mtre STEPHEN L.

DRYMER PERMANENT COURT OF ARBITRATION DESCRIPTION : 500-09-026899-179 Application for leave to appeal form a judgment rendered on June 6, 2017 by the Honourable Madam Justice Marie-Anne Paquette of the Superior Court, District of Montreal (Article 31 C.C.P .) 500-09-026900-175 Application of the Dominican Republic and the Instituto Dominicano de Aviacion Civil to dismiss an appeal (Article 365 C.C.P .) Application for leave to appeal form a judgment rendered on June 16, 2017 by the Honourable Madam Justice Marie-Anne Paquette of the Superior Court, District of Montreal (Article 31 C.C.P .)

Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 2:04 pm Commencement of the hearing. Identification of counsel. 2:04 pm Submissions by Mtre Laurendeau. 2:25 pm Recess. 2:25 pm Resumption of the hearing. 2:27 pm By the Court: judgment – see page 3.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The respondents seek the dismissal of the appellant’s notice of appeal in respect of the judgment rendered on June 16, 2017 by the Honourable Madam Justice Marie-Anne Paquette and from the notice of appeal from a judgment rendered in the course of proceedings on June 6, 2017. [ 2 ] In the June 6, 2017 judgment, the judge maintained the respondents’ objection to the appellant’s attempt to introduce new evidence in the form of oral testimony in support of its motion for annulment of an award rendered by an arbitrator on August 27, 2015. [ 3 ] In her June 16, 2017 judgment, the judge dismissed the appellant’s motion for annulment of the award and granted the respondents’ motion to homologate it. [ 4 ] By two separate motions, the appellant now seeks leave to appeal both judgments. [ 5 ] For the following reasons, the Court will dismiss both motions for leave to appeal and grant the respondent’s motion to dismiss the appellant’s notice of appeal.

The context (in a nutshell) [ 6 ] On February 9, 2004, the parties entered into a contract that provided for arbitration in case of a dispute, in particular its non- performance. [ 7 ] On April 2, 2013, such a dispute having occurred, the respondents filed a notice of arbitration. [ 8 ] The arbitration process lasted two years. The appellant always contended that the arbitrator had no jurisdiction over the dispute, while the respondents took the opposite position. At the appellant’s request, the introduction of evidence before the arbitrator and all submissions to him were made in writing.

There was neither viva voce evidence nor oral submissions made to the arbitrator. [ 9 ] Therefore, the arbitrator’s award was made on the basis of the written record. The appellant’s objections to the arbitrator’s jurisdiction were dismissed. With respect to the non-performance of the contract, the appellant was ordered to reimburse the advances it had received from the respondents (less some costs incurred and supported by the documents it had produced) plus interest from April 2, 2013.

The notice of appeal filed is irregular and without right [ 10 ] Since the judgment rendered on June 16, 2017 is a judgment that homologates an award and dismisses a motion for its annulment, it is a judgment ruling on execution matters, as provided for in

article 30, para. 2(8) of the Code of Civil Procedure and, therefore, prior leave from a judge of the Court was required (See: Coderre c. Coderre , 2008 QCCA 888 , para. 31 et 32 ; Québec (Ministre de la Santé et des Services sociaux) c. Association des chirurgiens dentistes du Québec , JE-2002-703 (C.A.); Torabi c. Choubineh , 2017 QCCA 291 (judge sitting alone); Bard c. Appel , 2015 QCCA 2107 (judge sitting alone); Viandes du Breton inc. c.

Notre-Dame-du-Lac (Ville de) , 2006 QCCA 358 (judge sitting alone)). [ 11 ] No such leave having been sought, the notice of appeal was irregularly filed and thus subject to peremptory dismissal. Leave to appeal both judgments will not be granted [ 12 ] Leave to appeal of the judgment rendered during the course of proceedings on June 6, 2017 will not be granted since the requirements of articles 9, 18 and 31 C.C.P. are not satisfied. The judge rightfully refused the proposed evidence as irrelevant (art. 2857 C.C.Q. ).

An appeal would thus have no reasonable chance of success. [ 13 ] Neither will leave to appeal the judgment rendered on June 16, 2017 be granted since the requirements set forth in article 30(3) C.C.P . are not met: there are no questions of principle or law of general interest at issue (See: Blémur c. Cour du Québec, Division des petites créances , 2013 QCCA 609 , para. 4-9 (judge sitting alone); Habitations consultants HL inc. c. Corporation de l'externat St-Jean- Berchmans , 2010 QCCA 1867 , para. 5-11 (judge sitting alone)).

[ 14 ] The judge did not err in deciding that the appellant was barred from raising new jurisdictional arguments for the first time before her, that is, that the arbitration clause was imperfect or incomplete and that the conditions precedent to arbitration were not satisfied. (See: Dell Computer Corp. v. Union des consommateurs , 2007 SCC 34 , [2007] 2 S.C.R. 801; Desputeaux c. Éditions Chouette (1987) inc ., 2003 SCC 17 , [2003] 1 S. C.R. 178.See also : Rogers Sans-fil Inc. c.

Muroff , 2007 SCC 35 , [2007], 2 S.C.R. 921) [ 15 ] She was also correct in rejecting the argument that the arbitration clause was invalid because it did not state that the award would be final and binding upon the parties. [ 16 ] As the respondents argue: • regardless of how the grounds of annulment and appeal are framed, the appellant was asking the judge in reality to re-try the merits of the dispute by engaging in a substantive re-evaluation of the evidence; • the motion for annulment sought to overturn well-established principles of international arbitration: o the competence/competence principle, which confirms that any challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator; and, o a Court asked to homologate an arbitration award is not entitled to revisit the merits of the decision; and, • the judge rightly recognized that the appellant, under the guise of procedural fairness, was in fact trying to use its own refusal to fully participate in the arbitration proceedings as a ground of annulment, and properly rejected this argument considering the arbitrator had afforded the appellant every opportunity to present its evidence and submissions, having even ordered the appellant to produce supporting evidence, which order the Appellant choose to ignore.

FOR THESE REASONS, THE COURT: [ 17 ] GRANTS the respondents’ motion to dismiss the appellant’s appeal inscribed as of right, with legal costs against the appellant; [ 18 ] DISMISSES the appellant’s application for leave to appeal the judgment of the Superior Court rendered on June 6, 2017, with legal costs against the appellant; [ 19 ] DISMISSES the appellant’s application for leave to appeal the judgment of the Superior Court rendered on June 16, 2017, with legal costs against the appellant. ALLAN R. HILTON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A.