The appellant filed an appearance and declaration of incidental appeal in the office of the Provincial Court instead of the Court of Appeal.
Over two years later, the appellant sought special leave from the Court of Appeal to file the documents properly, arguing the trial court clerk failed to forward them.
The Court of Appeal dismissed the motion, holding it lacked jurisdiction to extend the time limit beyond six months under art. 523 C.C.P. The Supreme Court of Canada allowed the appeal, finding that while the documents were filed in the wrong office, the time limit for an incidental appeal is not strict like a principal appeal.
The Court held that the Court of Appeal had broad discretionary power under art. 523 C.C.P. to correct the procedural error and should have exercised it to prevent the loss of the appellant's right of appeal, as the respondents suffered no prejudice.