Canada Post Corp. v. Canadian Union of Postal Workers, [1997] 2 S.C.R. 294

Canadian Union of Postal Workers Appellant

v.

Canada Post Corporation Respondent

and

Rodrigue Blouin Mis en cause

Indexed as: Canada Post Corp. v. Canadian Union of Postal Workers

File No.: 25093.

1997: February 12; 1997: May 29.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier and McLachlin JJ.

on appeal from the court of appeal for quebec

Civil procedure ‑‑ Appeal ‑‑ Abandonment of appeal ‑‑ Whether Court of Appeal has jurisdiction to rectify abandonment of appeal ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, arts. 503.1, 523.

After filing an inscription in appeal of a judgment of the Superior Court, the respondent failed to serve and file its factum within the time prescribed in art. 503 C.C.P., and its appeal was accordingly deemed abandoned pursuant to art. 503.1 C.C.P. The clerk of the Court of Appeal recorded the default and issued a certificate stating that the appeal was abandoned. A few days later, counsel for the respondent learned of the certificate and filed a motion asking the Court of Appeal to declare that the appeal had not been abandoned and extend the time for service and filing of his factum. In the Court of Appeal counsel for the respondent maintained that he was aware of the Code of Civil Procedure's requirements but had got the dates confused since at the time he had two other cases before the Court of Appeal involving the same parties. The Court of Appeal granted the motion and gave the respondent special leave to appeal under art. 523 C.C.P.

Held: The appeal should be allowed. The judgment of the Court of Appeal is set aside for the sole purpose of amending its order.

For the reasons set out in Construction Gilles Paquette ltée v. Entreprises Végo ltée, 1997 352 (SCC), [1997] 2 S.C.R. 299, the abandonment of the appeal should be rectified pursuant to the Court of Appeal's general power under para. 2 of art. 523 C.C.P. The error made by counsel for the respondent is a merely technical one that can be rectified in order to safeguard the respondent's rights without prejudicing the appellant. Furthermore, it is not argued that the appeal is frivolous, improper or dilatory. Finally, after receiving notice of the abandonment of the appeal, the respondent acted quickly to rectify it. It is not necessary, however, to grant special leave to appeal under art. 523 in order to rectify an abandonment of an appeal. It is sufficient to order that the appeal be reinstated.

Cases Cited

Followed: Construction Gilles Paquette ltée v. Entreprises Végo ltée, 1997 352 (SCC), [1997] 2 S.C.R. 299, rev'g 1995 4918 (QC CA), [1995] R.J.Q. 2853; referred to: D’Aragon & Associés inc. v. Gravel, 1995 4949 (QC CA), [1996] R.D.J. 33.

Statutes and Regulations Cited

Code of Civil Procedure, R.S.Q., c. C‑25, art. 503 [repl. 1982, c. 32, s. 39; am. 1993, c. 30, s. 12], 503.1 [ad. 1993, c. 30, s. 13; repl. 1995, c. 2, s. 5], 523 [am. 1985, c. 29, s. 11; am. 1992, c. 57, s. 422].

APPEAL from a judgment of the Quebec Court of Appeal, [1995] Q.J. No. 885 (QL), J.E. 96‑22, granting the respondent's motion to have the appeal declared not to have been abandoned and to extend the time for filing a factum. Appeal allowed.

Paul Lesage and Normand Beaulieu, for the appellant.

Jacques Reeves, for the respondent.

English version of the judgment of the Court delivered by

1. Gonthier J. ‑‑ This appeal raises the same point of law as Construction Gilles Paquette ltée v. Entreprises Végo ltée, 1997 352 (SCC), [1997] 2 S.C.R. 299, which was heard and decided at the same time as the instant case.

I - Facts

2. The respondent applied to the Superior Court for judicial review of an arbitration award rendered by the mis en cause. On February 22, 1995, Trahan J. of the Superior Court granted the respondent’s application in part: D.T.E. 95T-746, [1995] Q.J. No. 637 (QL). The respondent appealed that decision on March 21, 1995. A few days later, the appellant filed an incidental appeal, the regularity of which is not at issue in the case at bar. The respondent failed to serve and file its factum within the time prescribed in art. 503 of the Code of Civil Procedure, R.S.Q., c. C‑25 (“C.C.P.”), and its appeal was accordingly deemed abandoned pursuant to art. 503.1 C.C.P. On August 9, 1995, the clerk of the Court of Appeal recorded the default and issued a certificate stating that the appeal was abandoned. Counsel for the respondent learned of the certificate on August 15, 1995. He then filed a motion asking the Court of Appeal to declare that the appeal had not been abandoned and extend the time for service and filing of his factum.

3. In the Court of Appeal counsel for the respondent maintained that he was aware of the Code of Civil Procedure’s new requirements but had got the dates confused. At the time, he had two other cases before the Court of Appeal involving the same parties as the instant case but with slightly different dates. On November 21, 1995, the Court of Appeal granted the respondent’s motion: J.E. 96-22, [1995] Q.J. No. 885 (QL).

II - Decision of the Court of Appeal, J.E. 96-22

Bisson J.A.

4. Bisson J.A. concluded that under art. 523 C.C.P. the Court of Appeal has jurisdiction to set aside an abandonment required by art. 503.1 C.C.P., first because art. 503.1 C.C.P. does not provide for forfeiture of the right of appeal, and second because of the broad powers conferred on the Court of Appeal by art. 523 C.C.P. He found this to be a case where the Court of Appeal should exercise its discretion. Counsel for the respondent merely made a technical error that was not prejudicial to the appellant. Moreover, once he noticed the error, he acted quickly to rectify it.

Fish J.A.

5. Fish J.A. concurred with Bisson J.A.’s conclusion, but did so by applying the principles he had set out in D’Aragon & Associés inc. v. Gravel, 1995 4949 (QC CA), [1996] R.D.J. 33, to the present case. In D’Aragon, Fish J.A. held that the Court of Appeal has jurisdiction to remedy the effects of an abandonment required by art. 503.1 C.C.P. pursuant to its broad discretion under art. 523 C.C.P. to make any order necessary to safeguard the rights of the parties.

Forget J. (ad hoc)

6. Forget J. concurred with Bisson J.A. because he considered himself bound by the Court of Appeal’s decision in Construction Gilles Paquette ltée v. Entreprises Végo ltée, 1995 4918 (QC CA), [1995] R.J.Q. 2853.

III - Analysis

7. For the reasons set out by this Court in Construction Gilles Paquette ltée, supra, I conclude that the abandonment of the appeal should be rectified pursuant to the Court of Appeal’s general power under para. 2 of art. 523 C.C.P. As Bisson J.A. pointed out in his reasons, the error made by counsel for the respondent is a merely technical one that can be rectified in order to safeguard the respondent’s rights without prejudicing the appellant (at p. 10 of the full text):

[translation] I am of the view, however, that the technical error is not fatal and that it did not cause any prejudice to the respondent Union, especially since the Union has filed an incidental appeal which is pending and in which it challenges part of the judgment a quo.

Furthermore, it is not argued that the appeal is frivolous, improper or dilatory. Finally, after receiving notice of the abandonment of the appeal, the respondent acted quickly to rectify it.

IV - Disposition

8. In the judgment appealed from, Bisson J.A. made the following order, at p. 11:

[translation] I would grant the appellant [Canada Post Corporation] the special leave provided for in article 523 C.C.P., uphold the validity of the service and filing of the inscription in appeal, do the same for the subsequent proceedings and authorize the appellant to file its factum no later than fifteen days after the judgment on this motion has been deposited.

Since I have concluded in Construction Gilles Paquette ltée, supra, that it is not necessary to grant special leave to appeal in order to rectify an abandonment of an appeal required by art. 503.1 C.C.P., I would allow this appeal and set aside the judgment of the Court of Appeal for the sole purpose of rectifying the order, ordering that the appeal be reinstated and authorizing the respondent to serve its factum on the opposing party and file it in the office of the Court of Appeal of Quebec within 15 days of this judgment, the whole with costs to the respondent.

Appeal allowed with costs to the respondent.

Solicitors for the appellant: Trudel, Nadeau, Lesage, Larivière & Associés, Montreal.

Solicitors for the respondent: Beauvais, Truchon & Associés, Québec.