St-Hilaire et al. v. Bégin

Civil procedure — Appeal — Inscription in appeal not filed with trial court registry within deadline — Special leave to appeal — Meaning of "impossible to act sooner" — Exercise of discretionary power — Code of Civil Procedure, arts. 494, 495, 501(2), 523, 850.

Appellants were not able to file a duplicate and two copies of their inscription in appeal in the registry of the Superior Court of Rimouski (art. 495 C.C.P.) within ten days of the date of the judgment denying their motion in evocation, as the trial record had been urgently transferred to the registry of the Quebec City Appeal Division for the hearing of a motion for a suspension. It was here that appellants filed in the record the original and the copies of the inscription in appeal. Respondent submitted a motion to dismiss the appeal and the Court of Appeal allowed this. Appellants had further submitted a motion based on art. 523 C.C.P., which was also dismissed without supporting reasons.

Held: The appeal from the judgment allowing the motion to dismiss should be dismissed and the appeal from the judgment denying the motion for special leave to appeal should be allowed.

The first motion to dismiss the appeal was properly allowed by the Court of Appeal (Cité de Pont Viau v. Gauthier Mfg. Ltd., [1978] 2 S.C.R. 516).

On the second motion, it appears from the aforementioned decision that, before exercising its discretion, the Court of Appeal must be satisfied—apart from the

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provision relating to the six-month deadline, which is not at issue here—"that in fact it was impossible for [the party] to act sooner". In this regard, the Court of Appeal should not require from the party proof that it was impossible to act as the result of an insuperable obstacle beyond its control; it will suffice for the party to show a de facto, relative impossibility. As was true in the case at bar, the Court of Appeal was thereupon entitled to exercise its discretion in the following manner. It must in general, as art. 523 provides, seek "to safeguard the rights of the parties". As we have a system in which the parties are adversaries, and their respective rights are more often than not in conflict with each other, it goes without saying that the Court will have to give priority to the rights of some as against, and often to the detriment of, the rights of others. In this regard, the Court must base itself on the initial wording of art. 523 and, when it has a choice, choose the means of safeguarding the rights of the parties which are required by "the ends of justice" and, in a case where the rights of the parties must be protected following an error by counsel for one of them, and where this error will necessarily have detrimental consequences for one or other of the parties depending on the Court's decision, "the ends of justice" required that the detrimental consequences of this error be borne by the party represented by the counsel in question and not by his opponent.

Since in the case at bar the opposing party suffered no loss, "the ends of justice" required that the rights of appellants be safeguarded, and accordingly that this motion should have been allowed.

Cité de Pont Viau v. Gauthier Mfg. Ltd., [1978] 2 S.C.R. 516, referred to.

APPEAL from a judgment of the Court of Appeal for Quebec allowing a motion to dismiss the appeal. Appeal dismissed. APPEAL from a judgment of the Court of Appeal for Quebec denying a motion for special leave to appeal. Appeal allowed.

Paul Jolin, for the appellants.

Raynold Bélanger, Q.C., for the respondent and the mis en cause.

English version of the judgment of the Court delivered by

LAMER J.—By their appeal, appellants are challenging two decisions of the Court of Appeal of Quebec, one allowing the motion submitted by

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respondent Paul Bégin to dismiss their appeal based on art. 501(2) C.C.P., the other dismissing their motion for special leave to appeal though out of time as provided for in certain cases by art. 523 C.C.P.

In the Superior Court appellants had asked that a writ of evocation be issued directing respondent Bégin and the mis en cause Gervais Labrecque, in their capacities as investigating commissioners appointed by the Quebec Municipal Commission, to suspend an investigation they had undertaken into the municipal administration of the City of Rimouski. The circumstances leading up to this investigation and the facts alleged to justify this motion in evocation are of no relevance to the question before this Court. It will therefore suffice to know that the judge of the Superior Court for the district of Rimouski, to whom the motion was submitted in Rimouski itself on May 6, 1980, signed in his chambers in Quebec City on the following Thursday, May 15, a judgment of the same date dismissing the motion, and that he sent it to Rimouski the same day, to the prothonotary of the Superior Court for the district of Rimouski.

The following day, Friday May 16, counsel for the appellants said they learned of the existence of the judgment in Quebec City through journalists from Rimouski. It was not until Tuesday May 20, since the Monday was a holiday, that they were able to obtain a copy of the judgment.

In the meantime, the two investigating commissioners had called witnesses in Rimouski for the following day and were preparing to continue the investigation which they had suspended.

The account of the following facts is taken from one of the documents submitted to this Court and supported by an affidavit from one of the counsel for the appellants:

[TRANSLATION] In view of their intention to appeal from the judgment of the Hon. Boisvert, and to ask one of the honourable judges of the Court of Appeal to order a suspension in accordance with the provisions of art. 850 C.C.P., counsel for the appellants on May 20, 1980 contacted Mr. Come Boucher, one of the counsel for the respondent, four times to tell him of their intention to appeal and to file a motion for a suspension as aforesaid;

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It was then agreed that, since the respondent had called witnesses and intended to hold a hearing at 2 p.m. the following day, the inscription in appeal and the motion for a suspension would be delivered to them personally, in return for a receipt, and this was done at about 4:15 p.m. on May 20, 1980;

In view of the circumstances and the undoubted urgency, and in view of the provisions of sections 3, 17 and 18 of chapter T-10 of the Revised Statutes of Quebec, counsel for the appellants caused to be placed on their inscription in appeal the stamps required by the deputy prothonotary for the judicial district of Quebec City, after making sure that the prothonotary for the judicial district of Rimouski would forward their case to the Clerk of Appeals for the district of Quebec City without delay and by messenger, so as to avoid the delays resulting from the provisions of art. 498 C.C.P.;

On the same day Mrs. Annette Blois, deputy prothonotary of the Superior Court for the district of Rimouski, forwarded case No. 100-05-000171-80-8 to Mr. Joachim Tardif, Clerk of Appeals in Quebec City, together with the exhibits relied on by the parties, as appears from a copy of her letter attached to this proceeding;

On the same day counsel for the respondent acknowledged receipt of a copy of the inscription in appeal of appellants, the original of which was delivered to the Clerk of Appeals Mr. Joachim Tardif on May 21, 1980 to be filed in Rimouski Superior Court case No. 100-05-000171-80-8, which had been sent to the latter in the circumstances alleged above, as appears from a photocopy attached to this proceeding of a letter from the undersigned counsel to the said Mr. Joachim Tardif;

On May 21, 1980, after respondent had agreed not to sit at Rimouski at 2 p.m., Mr. Claude Gagnon, one of the counsel for respondent, and Mr. Louis Dorian, one of the counsel for the appellants, agreed to postpone submission of the motion for a suspension to the following day, May 22, 1980;

On May 22, 1980 appellants submitted and respondent objected to the motion of appellants, filed in accordance with the provisions of art. 850 C.C.P., before Dubé J.A. of the Court of Appeal;

On May 27, 1980 André Dubé J.A. allowed the motion of appellants and ordered respondent, Mr. Paul Bégin and the other mis en cause parties to suspend all proceedings until the Court of Appeal had rendered judgment on the appeal brought by appellants;

On May 22, 1980 counsel for the respondent, Messrs. Belleau, Boucher & Brassard, had also filed in the

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registry of the Court of Appeal an appearance for respondent Paul Bégin and the mis en cause parties, as appears from the record;

On May 30, 1980 respondent and the Quebec Municipal Commission filed and caused to be served on counsel for the appellants a MOTION TO REVISE THE JUDGMENT RENDERED IN CHAMBERS ON THE TWENTY-SEVENTH DAY OF MAY, 1980 by André Dubé J.A. (C.C.P. 20 and 523), as appears from the record;

This motion was opposed by appellants and judgment was rendered by the Court of Appeal on August 13, 1980, dismissing this motion by respondent and the Quebec Municipal Commission with costs;

On August 15, 1980 Mr. Claude Gagnon, one of the counsel for respondent, wrote counsel for the appellants a letter in which he stated, inter alia: "Further to your inscription in appeal from the judgment of Gerald Boisvert J ... in our opinion it is urgently necessary for you to forward to us, within ten (10) days, your statement of claim", as appears from a photocopy of this letter attached to this claim;

On receipt of this letter, that is on August 19, 1980, Mr. Louis Dorion, one of the counsel for appellants, telephoned Mr. Claude Gagnon, one of the counsel for respondent, and told him of his intention to file the statement required by art. 503 C.C.P. within the next three weeks;

In fact, this statement was served on counsel for the respondent on September 12, 1980;

As appears from the copy of the letter from Annette Blais, the deputy prothonotary of the Superior Court for the district of Rimouski, attached to this motion, the latter asked Mr. Joachim Tardif to return the whole to her as soon as possible;

In fact, if the record had been returned as aforesaid, after the order made on May 27, 1980 by André Dubé J.A., allowing a motion by appellants and ordering respondent and the mis en cause parties to suspend any proceedings before the Quebec Municipal Commission, the duly stamped inscription in appeal, which counsel for the respondent and for the mis en cause had acknowledged receiving, would have been filed in the registry of the Superior Court of Rimouski well before the thirty-day (30) deadline required by art. 494 C.C.P. had expired;

It was not until they received service, on September 16, 1980, of the MOTION TO DISMISS THE APPEAL filed by respondent that counsel for the appellants learned that the original of the record of the Superior Court for the district of Rimouski, including the original of the

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inscription in appeal, was still with the Quebec City Clerk of Appeals.

In short, although appellants filed a duplicate and two copies of their inscription in appeal in the record of the Superior Court for the district of Rimouski, while the latter was at Quebec City, in the registry of the Quebec City Appeal Division, they did not file these documents with the registry of the Superior Court of Rimouski (art. 495 C.C.P.) within ten (10) days of the date of the judgment (art. 850 C.C.P.).

It is largely for this reason that respondent filed a motion to dismiss this appeal, and in my opinion the Court of Appeal properly allowed this motion (see Cité de Pont Viau v. Gauthier Mfg. Ltd.[1] at p. 519). I would thus dismiss with costs the appeal from this decision of the Court of Appeal of Quebec.

Appellants further submitted to the Court of Appeal a motion based on art. 523 of the Code of Civil Procedure:

523. The Court of Appeal may, if the ends of justice so require, permit a party to amend his written proceedings, to implead a person whose presence is necessary, or even, in exceptional circumstances, to adduce, in such manner as it directs, indispensable new evidence.

It 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. [Emphasis added.]

This motion was dismissed without supporting reasons. Among other arguments in support of this decision, respondent suggested to this Court one argument which can be disposed of forthwith. He argued that the Court could not grant special leave to appeal, since the applicants had not asked for it in their conclusions; that indeed they had not even alleged in their motion that it was "impossible for [them] to act sooner", an essential condition which the Court of Appeal must find to exist before it

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can exercise the discretionary power conferred on it by art 523 C.C.P.

A general review of the allegations contained in the motion indicates that applicants stated that they could not foresee that the Clerk of Appeals would keep the Superior Court record in Quebec City even after the suspension order had been handed down on May 27, 1980, rather than returning it to the Rimouski registry; that accordingly, the duplicate and two copies of the inscription in appeal entered in the record would remain in Quebec City, and that the written pleadings would accordingly be beyond their control. This would appear to be quite sufficient as an allegation that it was "impossible for [them] to act sooner", but only in light of the very wide definition given to this substantive condition by this Court in Cité de Pont Viau, supra, and especially because, as decided in that case, the opportunity for action which counsel for the appellants might have had cannot be opposed to appellants personally.

As for the conclusions, they are as follows:

[TRANSLATION] EXEMPT appellants from the time limits prescribed by the Code of Civil Procedure; ALLOW this motion;

UPHOLD the appeal as brought by appellants;

RECOGNIZE the existence and the non-expiry of appellants' right of appeal;

MAKE any order necessary to safeguard the rights of appellants;

COSTS TO FOLLOW.

These conclusions, in my opinion, are a request to extend the deadline for expiry of the right of appeal and to grant appellants special leave to appeal. I would therefore be very surprised to find that the Court of Appeal had based its decision on this ground; in any case, I think it would have been wrong had it done so.

In the recent decision of this Court in Cité de Pont Viau v. Gauthier Mfg. Ltd., supra, Pratte J., commenting on the scope and operation of the second paragraph of art. 523 C.C.P., said:

The first part of this provision gives the Court of Appeal a very wide discretionary power which it is to

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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. [Emphasis in original text.]

It appears from the foregoing that, before exercising its discretion, the Court of Appeal must be satisfied (apart from the provision relating to the six-month deadline, which is not at issue here) "that in fact it was impossible for [the party] to act sooner". In this regard, the Court of Appeal should not require from the party proof that it was impossible to act as the result of an insuperable obstacle beyond its control; it will suffice for the party to show a de facto, relative impossibility. The Court further observed, in the words of Pratte J.:

In the case at bar foreclosure was 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 of the party's counsel. I do not agree with this submission. The last part of art. 523 C.C.P. was enacted

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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.

This is an interpretation of art. 523 which assumes that the legislator, though he has only done so by implication, nonetheless intended in this area to depart from the rules contained in Title Eighth of the Civil Code (Of mandate). The result is that for all practical purposes there will be few cases (apart from those of forfeiture as a result of expiry of the six months specified in art. 523) in which the party will not succeed in satisfying this prerequisite for the exercise by the Court of its discretion; so much so that it is at the second stage of application of art. 523 C.C.P. that the Court of Appeal of Quebec can avoid the consequences detrimental to the effective administration of justice which would otherwise result from this judicial divorce of the mandator from his mandatary.

In the case at bar I must conclude that, bearing in mind the guidelines set forth in the recent decision of this Court in Cité de Pont Viau, the Court of Appeal was shown that it was de facto relatively impossible, at least for appellants, if not for their counsel, to file their pleadings with the registry of the Superior Court of Rimouski at the proper time, and accordingly that the Court of Appeal was entitled to exercise its discretion as to whether to grant or deny the leave.

In exercising its discretion, it must in general, as art. 523 provides, seek "to safeguard the rights of the parties". As we have a system in which the

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parties are adversaries, and their respective rights are more often than not in conflict with each other, it goes without saying that the Court will have to give priority to the rights of some as against, and often to the detriment of, the rights of others. In this regard, the Court must base itself on the initial wording of art. 523 and, when it has a choice, choose the means of safeguarding the rights of the parties which are required by "the ends of justice". I am also of the opinion that, in a case where the rights of the parties must be protected following an error by counsel for one of them, and where this error will necessarily have detrimental consequences for one or other of the parties depending on the Court's decision, "the ends of justice" require that the detrimental consequences of this error be borne by the party represented by the counsel in question and not by his opponent; any other result would be singular, to say the least.

In the case at bar, while the error of counsel cannot be attributed to appellants at the first stage of application of art. 523 (that is, in determining whether or not it was impossible to act), it is nonetheless relevant at the second stage of application of the article. Accordingly, the Court must then consider whether this error was detrimental to respondent, or whether the fact of disregarding the consequences of this error would be; if so, it will cause the resulting hardship to be borne by the mandators of these counsel and deny the special leave to appeal.

In the case at bar, the opposing party suffered no loss. It received a copy of the pleadings on May 20; it even filed an appearance on appeal and undertook discussion with its opponents in preparation of the case on appeal. I do not consider that the fact that the filing was in the record rather than in the registry could in any way prejudice respondent; however, it has drastic consequences for appellants. For this reason, I am of the opinion, with all due deference to the contrary view, that in the case at bar "the ends of justice" required that the rights of appellants be safeguarded, and accordingly that this motion should have been allowed.

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I would therefore dismiss with costs against appellants their appeal on the motion to dismiss the appeal, and allow the appeal on the motion based on art. 523 C.C.P., I would grant appellants special leave to appeal, and for this purpose I would give them a period of ten (10) days from the date of this judgment to file in the registry of the Superior Court in Rimouski their inscription in appeal; costs in the appeal.

Appeal from judgment allowing the motion to dismiss the appeal dismissed with costs.

Appeal from judgment dismissing the motion for special leave to appeal allowed.

[1] [1978] 2 S.C.R. 516.