SUPREME COURT OF CANADA
Cité de Pont Viau v. Gauthier Mfg. Ltd., [1978] 2 S.C.R. 516
Date: 1978-02-07
Cité de Pont Viau Appellant;
and
Gauthier Mfg. Ltd. Respondent.
1977: November 9; 1978: February 7.
Present: Ritchie, Pigeon, Dickson, Beetz and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Civil procedure — Appeal — Inscription in appeal not served within the time limits — Special leave to appeal — Meaning of "impossible for him to act sooner" — Code of Civil Procedure, arts. 484, 494, 495, 502, 523.
Respondent and several other parties, including the Union Canadienne Compagnie d'Assurance ("Union"), brought actions for damages against appellant as the result of a fire. For purposes of proof and hearing, respondent's action was joined with that of Union and both were allowed by judgments delivered on the same day. Appellant filed an inscription in appeal against the two judgments within the prescribed time limits. This inscription was served upon Union's counsel, which were incorrectly identified as counsel for both Union and respondent. After the time limit for filing the appeal had expired, respondent filed a motion for dismissal of the appeal on the grounds that the inscription had not been served upon respondent or his counsel, as required by art. 495 C.C.P. Appellant then filed a motion based on art. 523 C.C.P. for leave to serve the inscription despite the fact that the time limit had expired. Both motions were heard at the same time by the Court of Appeal, which allowed the motion for dismissal of appeal and dismissed the motion under art. 523 C.C.P. Hence the appeal to this Court.
Held: The appeal from the decision allowing the motion for dismissal of appeal is dismissed and the appeal from the decision dismissing the motion for special leave to appeal is allowed.
The Court of Appeal was obliged to allow the motion for dismissal of appeal since one of the steps essential to the bringing of an appeal, namely service upon the opposing party or its counsel, was missing: this is not a formality that the Court could allow to be corrected.
The second part of art. 523 C.C.P. specifies that the discretionary power of the Court to grant leave to appeal after the time limit has expired is subject to the existence
[Page 517]
of two prior conditions: application must be made within six months of the judgment and the party must show "that in fact it was impossible for him to act sooner". Article 523 C.C.P. is new law. Under the old Code of Civil Procedure the time limit for appeal was a strict time limit and once it expired, the right of appeal was definitely forfeited. The new Code of Civil Procedure corrected this situation and laid down a less rigorous rule regarding extension of time limits. Where an appeal is involved, the applicant does not have to prove that the action was absolutely impossible, only that it was relatively impossible. In the case at bar foreclosure was due solely to the error of appellant's counsel. The party itself acted with diligence and it is not clear what more it could have done in order to act sooner. The impossibility of acting must be assessed from the point of view of the person who will have to bear the consequences of the foreclosure if he is not relieved from them. The Court of Appeal was therefore obliged to exercise the discretion provided for in art. 523 C.C.P. in favour of the foreclosed party.
Lord v. The Queen (1901), 31 S.C.R. 165; Blanchette v. Duval (1938), 65 Que. K.B. 333; Girouard v. Beaudoin, (1928) 35 R.L.n.s. 446; Desrosiers v. Blanchard (1924), 27 R.P. 67; Vocisano v. Canada File and Tool Works, Limited (1925), 38 Que. K.B. 536; Morin v. Lacasse, [1953] Que. Q.B. 738; Beaubien v. Laframboise (1925), 40 Que. K.B. 194; Joy Oil Limited v. McColl Frontenac Oil Co. Ltd., [1943] S.C.R. 127, referred to.
APPEAL from a decision of the Court of Appeal allowing the motion for dismissal of the appeal from a judgment of the Superior Court[1]: appeal dismissed. Appeal from a decision of the Court of Appeal dismissing a motion for special leave to appeal: appeal allowed.
François Mercier, Q.C. and Michel Dagenais, for the appellant.
Paul Gélinas, Q.C., and Jean Guérin, Q.C., for the respondent.
The judgment of the Court was delivered by
PRATTE J.—The appellant is appealing, with leave of this Court, from the judgments delivered by the Court of Appeal of the Province of Quebec on May 27, 1976, which dismissed (i) its appeal against the final judgment of the Superior Court (Prévost J.) dated February 12, 1976 and (ii) its
[Page 518]
motion for special leave to appeal pursuant to the second paragraph of art. 523 C.C.P. notwithstanding the expiry of the time limits prescribed by art. 494 C.C.P.
The relevant facts, which are not in dispute between the parties, are as follows:
Following a fire that occurred on September 2, 1964, thirty-one actions for damages were brought against appellant for its alleged failure to take adequate measures to extinguish the fire and prevent it from becoming a conflagration. For purposes of proof and hearing, respondent's action was joined with that of Union Canadienne Compagnie d'Assurance, while the other twenty-nine suits were left pending. By judgment delivered on February 12, 1976, the Superior Court (Prévost J.) allowed respondent's action against appellant for an amount of $304,055. On the same date the Superior Court also allowed the action brought by the Union Canadienne Compagnie d'Assurance for $5,065. The other actions have not yet been heard.
Whithin [sic] thirty days from the judgment of the Superior Court, specifically on March 9, 1976, appellant filed at the office of the Superior Court an inscription in appeal against each one of the two judgments delivered against it on February 12. Both these inscriptions had previously (March 4) been served upon Messrs. O'Brien, Home, Hall, Nolan, Saunders and Associates, who represented Union Canadienne Compagnie d'Assurance but did not represent respondent. The inscription in appeal was therefore not served upon either respondent or its counsel as required by art. 495 C.C.P.
This omission was due to the fact that the prothonotary, in giving the notice prescribed by the second paragraph of art. 473 C.C.P., repeated the error appearing on the last page of the Superior Court judgment and erroneously designated Messrs. O'Brien, Home, Hall, Nolan, Saunders and Associates as counsel for the respondent.
After the time limit for filing the appeal had expired, namely on March 26, 1976, respondent
[Page 519]
caused to be served upon appellant a motion for the dismissal of the appeal which was returnable before the Court of Appeal on April 20, 1976. In this motion respondent alleged that appellant's appeal was irregular and void because the inscription has not been served upon either respondent itself or its counsel.
By motion dated April 1, 1976, appellant, relying on art. 523 C.C.P., prayed the Court of Appeal that it be allowed to serve the inscription in appeal upon respondent's real counsel, [TRANSLATION] «despite the terms of art. 495 C.C.P.» and within a time limit to be fixed by the Court of Appeal. This motion was returnable on the same date as the motion for the dismissal of the appeal, i.e. April 20, 1976.
Both motions were heard at the same time by the Court of Appeal, which, on May 27, 1976, allowed the motion for the dismissal of the appeal and dismissed appellant's motion under art. 523 C.C.P.
As regards the motion for the dismissal of the appeal, it had to be allowed. An appeal is brought only if, within the time limit provided for in art. 494 C.C.P., the inscription is filed with the office of the court of first instance and served upon the opposing party or his counsel. In the case at bar, though the inscription was filed with the office of the Superior Court, it was never served upon respondent or its counsel. One of the two steps essential to the bringing of the appeal was therefore missing; this is not a mere formality that the Court of Appeal could allow to be corrected (art. 502 C.C.P.). The Court of Appeal was therefore right to allow respondent's motion for the dismissal of the appeal brought by appellant.
Was the Court of Appeal also right, however, to dismiss appellant's motion [TRANSLATION] "for special leave to serve an inscription in appeal in accordance with art. 523 C.C.P."?
Respondent pointed out to this Court that the conclusions of this motion were not in accordance with the wording of art. 523 C.C.P., which provides that the Court of Appeal may, in certain circumstances, "grant special leave to appeal". This observation is, strictly speaking, accurate, and
[Page 520]
the conclusions of appellant's motion are certainly not a model of good drafting.
Appellant's intention is clear, however: it is seeking to obtain leave to appeal from the final judgment of the Superior Court in spite of the expiry of the thirty-day time limit specified in art. 494 C.C.P. In my view, therefore, it must be considered that appelant's motion was made for the purpose of obtaining special leave to appeal pursuant to art. 523 C.C.P. This is, indeed, how it was interpreted by the Court of Appeal.
As we have seen, this motion was dismissed by the Court of Appeal for the reasons stated as follows by Montgomery J.A.:
There remains the question as to whether we should grant special leave to appeal under article 523 CCP. I cannot see that it was in any way impossible to make a legal service of this appeal within the normal delay of thirty days. All the necessary information to enable Appelant's counsel to determine who were attorneys for Respondent must have been readily available to them. A successful litigant has the right to regard the judgment in his favour as final if no inscription in appeal is served upon him within thirty days. The wide discretion conferred upon this Court by article 523 C.C.P. is limited, where the delay to appeal has expired, to cases where a party can show that it was impossible for him to act sooner. It is not enough to establish an error on the part of counsel; see the majority decision in Nude! v. Industrial Paper Converters, [1969] Q.P.R. 255, recently followed in London & Midland General Insurance Co. v. Ménard (Mtl. No. 09-001049-75, judgt. 19th Dec., 1975, Montgomery, Dubé and Ouimet, ad hoc, JJ.).
It certainly was not impossible for appellant's counsel to have the inscription in appeal served upon respondent's counsel within the legal time limit. The fact that it was not served, which led to the dismissal of the appeal, was the result of a professional error which, whatever its character, was certainly not due to circumstances which partake of force majeure.
Because it was not impossible for appellant's counsel to have the inscription in appeal served upon respondent's counsel within the legal time limit, the Court of Appeal held that it had not
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been impossible in fact for the appellant (the party) "to act sooner", and that consequently the Court could not exercise the discretion entrusted to it by the second paragraph of art. 523 C.C.P., which reads as follows:
It [the Court of Appeal] has all the powers necessary for the exercise of its jurisdiction and may make any order necessary to safeguard the rights of the parties. It may even, notwithstanding the expiry of the delay allowed by article 494, but provided that more than six months have not elapsed since the judgment, grant special leave to appeal to a party who shows that in fact it was impossible for him to act sooner.
The first part of this provision gives the Court of Appeal a very wide discretionary power which it is to exercise, in the words of the article itself, in such a way as "to safeguard the rights of the parties". This discretion is not unlimited, however, when it comes to granting leave to appeal after the expiry of the time limits provided for in art. 494 C.C.P. In such cases the discretionary power of the Court of Appeal is subject to the existence of two prior conditions: application for leave to appeal must be made within six months of the judgment, and in addition the party must show "that in fact it was impossible for him to act sooner". The Court of Appeal may grant special leave to appeal only to a party that meets these two prior conditions; but this does not mean that special leave to appeal must be granted to any party that requests it within six months and proves that it was in fact impossible for him to act sooner. The power of the Court of Appeal in this matter is discretionary and the verb "may" should not be construed to mean "must".
It is easy to imagine situations where the judicial exercise of its discretion would lead the Court of Appeal to refuse special leave to appeal, even though it was requested within six months of the judgment by a party who showed "that in fact it was impossible for him to act sooner". This would be the case, for example, if the appeal were clearly futile or vexatious or if it was the party's own culpable negligence that had made it impossible for him to act sooner.
[Page 522]
There are thus two distinct steps in the application of art. 523 C.C.P.
First, the Court of Appeal must determine whether the applicant meets the two prior conditions mentioned above. In deciding this question the Court is not exercising its discretionary power; rather, it is acting in its traditional role of interpreting the law and applying it to the proven facts. This Court will therefore intervene if it is of opinion that the Court of Appeal has misinterpreted or misapplied the law.
The same is not true of the second step, however. After deciding that the applicant meets the prior conditions specified in art. 523 C.C.P., the Court of Appeal must decide whether to grant or refuse special leave to appeal. It is this decision that really comes within the exercise of its discretion, and this Court would hesitate to vary such a decision unless of course there has been a breach of the rules regarding the exercise of judicial discretion.
In the case at bar the Court of Appeal did not exercise its discretion. It did not have to proceed to the second step of the decision-making process contemplated in the second part of art. 523 C.C.P. because it decided, as we have seen, that it was not in fact impossible for appellant to act.
The issue in the case at bar is therefore whether the Court of Appeal interpreted art. 523 C.C.P. correctly when it held that counsel's error had not made it impossible for appellant to act.
Is such an interpretation of art. 523 C.C.P. justified? This is the question that should now be considered.
Article 523 C.C.P. is new law.
Before the coming into force of the new Code of Civil Procedure, the Court of Appeal had held, despite the contrary opinion unanimously expressed by this Court in Lord v. The Queen[2],
[Page 523]
that the time limit for appeal was a strict time limit which could not be extended, and that once it expired the right of appeal was definitely forfeited (Rivard, Manuel de la Cour d'appel, Nos. 518 and 520). In this regard the Court of Appeal was stricter than the courts of France which followed the maxim "contra non valentem agere non currit praescriptio" and recognized that a litigant who was foreclosed from appealing could be relieved from this foreclosure if he had been unable to act owing to an unforeseeable and insurmountable occurrence that partook of force majeure (see Solus and Perrot, Droit Judiciaire Privé, Vol.1, No. 462(b); Vasseur,"Délais Préfix, Délais de Prescription, Délais de Procédure", (1950), 48, Revue trimestrielle de Droit civil, 439).
Rather surprisingly, our courts adopted a much less rigorous attitude when it came to interpreting the provisions of the Code of Civil Procedure regarding opposition to judgment, and in particular arts. 1163 and 1167, which read as follows:
Art. 1163. Any defendant condemned by default to appear or to plead may, if he was prevented from filing his defence by surprise, fraud or any other cause considered sufficient by the judge, obtain relief from the judgment by means of an opposition.
Art. 1167. Notwithstanding the expiry of the above delays, the defendant may be allowed to make opposition, upon establishing that, owing to absence, severe illness or other circumstances of irresistible force, he was prevented from learning of the action or of the judgment, or from making opposition within the prescribed delays.
In such case, however, the opposition does not lie whenever, after the hindrance ceases or knowledge is obtained of the action or of the judgment or of' proceedings in execution, the defendant, if he is present in the Province, fails to make opposition within a delay, or if he is absent therefrom, within such delay as is considered necessary according to the distance.
In Blanchette v. Duval[3], Galipeault J., as he then was, speaking for the majority of the court, expressed the opinion that art. 1167 C.C.P. should be read in the light of art. 1163, which was not
[Page 524]
restrictive and which gave wide discretionary powers to the trial judge. In support of his opinion, Galipeault J. cited several precedents, including the summary of Girouard v. Beaudoin[4], to the effect that [TRANSLATION] "the Court should not give too strict an interpretation to articles relating to time limits for filing oppositions to judgment". He also mentioned Desrosiers v. Blanchard[5], in which Bruneau J., after outlining the historical background of arts. 1163, 1164, 1166 and 1167 C.C.P., concluded [TRANSLATION] "(1) that, strictly speaking, there is no time limit for opposition in cases of default to appear or to plead; (2) that these articles, which set forth when opposition to judgment is available, are illustrative rather than restrictive "because it would be unjust to refuse him [the defendant] a favour that is granted, solely for the reason that a person who has been unable to defend himself should not be irrevocably convicted" (Thomine-Desmazures, Vol. 1, at p. 84, Carré and Chauveau, question 99 and 1598); ...".
The Court of Appeal had previously held in Vocisano v. Canada File and Tool Works Limited[6], that the nullity of an opposition to judgment filed after the time limit had expired was not a matter of public order and that the plaintiff could waive, either explicitly or implicitly, his right to take advantage of this nullity.
Furthermore, the negligence of counsel was recognized by the Court of Appeal as sufficient reason to oppose a judgment (Morin v. Lacasse[7], a unanimous decision by five judges).
Under the old Code of Civil Procedure, a litigant who, through no fault of his own, had been prevented from filing an opposition to judgment within the prescribed time limits could obtain an extension of the time limit, whereas under the same circumstances it would have been impossible for him to be relieved of the foreclosure of his right of appeal.
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The Court of Appeal was therefore stricter with regard to a litigant who had not appealed within the prescribed time limit than with regard to a defendant condemned by default to appear or to plead.
The relevant provisions of the new Code of Civil Procedure are designed, in my view, to correct this situation, since the rule for extending the time limit is the same for motions in revocation of judgment (which have replaced, inter alia, the opposition to judgment), and for appeals.
After establishing at fifteen days the time limit within which a motion in revocation of judgment may be made at the request of one of the parties, art. 484 C.C.P. continues as follows:
The delay of fifteen days is peremptory; nevertheless the court may, on motion and provided that not more than six months have elapsed since judgment, relieve from the consequences of his default the party who shows that, in fact, it was impossible for him to act sooner.
As far as appeals are concerned, art. 494 C.C.P. prescribes the time limits within which they must be brought and then states that "such delays are peremptory and their expiry extinguishes the right of appeal"; but art. 523 C.C.P. provides that the Court of Appeal may, "notwithstanding the expiry of the delay allowed by art. 494, but provided that more than six months have not elapsed since the judgment, grant special leave to appeal to a party who shows that in fact it was impossible for him to act sooner".
It appears certain to me, therefore, that the legislator intended the rules governing the special leave to appeal referred to in art. 523 C.C.P. to be the same as those established by art. 484 C.C.P. for the extension of the time limits within which motions in revocation of judgment may be received.
Article 484 C.C.P. allows a motion in revocation to be filed after the prescribed time limits have expired if the party "shows that, in fact, it was impossible for him to act sooner".
In general, under the old Code, the fifteen-day time limit for filing an opposition to judgment (art. 1166) could be extended if the defendant had not
[Page 526]
made opposition within that time "owing to absence, severe illness or other circumstances of irresistible force" (art. 1167 C.C.P.).
Under the new Code the legislator did not retain this criterion of "circumstances of irresistible force"; nor did he adopt the criterion of absolute impossibility referred to in art. 2232 C.C., which deals with the suspension of prescription (see Beaubien v. Laframboise[8], approved in Joy Oil Limited v. McColl Frontenac Oil Co. Ltd..[9] By referring to impossibility "in fact", which implies that the impossibility is relative, the legislator has chosen a test that is certainly less demanding that the criteria of absolute impossibility or force majeure.
Moreover, the Commissioners who prepared the draft of the Code of Civil Procedure expressed themselves clearly in their commentary on art. 484:
This article has as its purpose setting out the delay within which a demand for revocation may be submitted, and to determine its starting point, taking account of the various situations which may arise. It may be noted that the delay is fifteen days in every case, and that it is declared to be de rigueur. It is, however, provided that the Court may nevertheless relieve a party from the consequences of his default, if he show that he was, in fact, unable to act sooner. The Commissioners had first thought of limiting this possibility only to cases of force majeure; but, upon reflection, they consider it preferable to adopt here a less rigorous rule.
For the Superior Court to allow a motion in revocation of judgment to be filed late pursuant to art. 484 C.C.P., it is therefore not necessary for the party to show that he was prevented from acting by an insurmountable obstacle totally beyond his control; the party need only show that the action was impossible in fact, that there was a relative impossibility. The rule Iaid down in the last part of art. 523 C.C.P. is the same. The wording is identical and there is no indication that the legislator intended it to have a different meaning. It must therefore be said that the litigant who
[Page 527]
applies for special leave to appeal under this article does not have to prove that the action was absolutely impossible, only that it was relatively impossible.
It is impossible to specify in advance every situation that might constitute a relative impossibility. Each case must be decided according to its own particular circumstances, since the impossibility in question is really one of fact.
In the case at bar foreclosure .as due solely to the error of appellant's counsel. The party itself acted with diligence and I do not see what more it could have done in order to "act sooner".
It is argued, however, that the impossibility referred to in art. 523 C.C.P. is not that of the party but rather that on the party's counsel. I do not agree with this submission. The last part of art. 523 C.C.P. was enacted in favour of the party itself in order to temper the strictness of the automatic forfeiture of the right of appeal when the holder of this right—the party itself—was unable to act in time. The impossibility to act must therefore be assessed from the point of view of the person who will have to bear the consequences of the foreclosure if he is not relieved from it.
Moreover, by choosing the criterion of impossibility "in fact" the legislator has indicated that the impossibility should be assessed in actual fact, irrespective of any fiction. However, it is solely on the basis of a legal fiction that counsel's possibility to act can be said to be that of the party. This is clearly not what is intended by the latter part of art. 523 C.C.P.: the existence of a real impossibility, "in fact", cannot be denied because of a fiction whereby the possibility to act of the agent would be held to be that of the principal.
Furthermore, it cannot be objected, as expressed by Montgomery J.A., that "a successful litigant has the right to regard the judgment in his favour as final if no inscription in appeal is served upon him within thirty days". This statement may have been accurate under the old Code of Civil Procedure, but it is not accurate under the new Code. Article 523 C.C.P. specifically empowers the
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Court under special circumstances to grant special leave to appeal within six months of the judgment. It is therefore only after this six-month period has elapsed that a Superior Court judgment acquires the same force of res judicata that it had under the old Code after thirty days.
I am therefore of opinion that appellant has shown that "in fact, it was impossible for him to act sooner".
I am also of opinion that in the circumstances of the case at bar there are grounds for granting appellant the special leave to appeal that is being sought. No fault or negligence is alleged against appellant; the motion for leave was filed with dispatch; respondent does not contend that the appeal is futile; the case that was inscribed and decided at the same time as this one has been appealed. I have no hesitation in saying that this is definitely a case where the discretion provided for in art. 523 C.C.P. should be exercised in favour of the foreclosed party.
I conclude, therefore, that (a) the appeal from the judgment of the Court of Appeal which dismissed appellant's appeal should be dismissed without costs, and (b) the appeal from the judgment of the Court of Appeal which dismissed appellant's motion for special leave to serve should be allowed Without costs, the judgment of the Court of Appeal set aside and special leave to appeal granted to appellant with costs against it, such appeal to be brought within fifteen days from the date of the judgment of this Court.
Appeal from the judgment allowing the motion by dismissal of the appeal dismissed without costs.
Appeal from the judgment dismissing the motion for special leave to appeal allowed without costs.
Solicitors for the appellant: Dagenais & Journet, Ville de Laval.
Solicitors for the respondent: Jean Guérin. St-Jerôme, and Paul Gélinas, Ste-Agathe, Québec.