COURT OF APPEAL

CANADA

PROVINCE OF QUEBEC

REGISTRY OF MONTREAL

[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.