Construction Gilles Paquette ltée v. Entreprises Végo ltée, 1997 CanLII 352 (SCC), [1997] 2 SCR 299

Construction Gilles Paquette ltée v. Entreprises Végo ltée, [1997] 2 S.C.R. 299

Construction Gilles Paquette ltée Appellant

v.

Les Entreprises Végo ltée Respondent

Indexed as: Construction Gilles Paquette ltée v. Entreprises Végo ltée

File No.: 25090.

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 an abandonment of an 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 appellant 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 appellant learned of the certificate and filed a motion in the Court of Appeal seeking to be relieved from its default and to be granted an extension of time to file its factum or, in the alternative, to be granted special leave to appeal. Counsel for the appellant pleaded error, that is, his own ignorance of the new provision. The Court of Appeal dismissed the motion in a majority decision, concluding that the court could circumvent an abandonment required by art. 503.1 C.C.P. only by granting special leave to appeal under art. 523 C.C.P., but that such leave should not be granted in this case.

Held: The appeal should be allowed.

The Court of Appeal can use the broad and discretionary general power conferred on it by para. 2 of art. 523 C.C.P. to “make any order necessary to safeguard the rights of the parties” to rectify the abandonment of the appeal required by art. 503.1 C.C.P. Article 503.1 provides for the administrative abandonment of appeals solely as a result of the passage of time. It does not provide that the expiry of the time limit for serving and filing the factum extinguishes the right of appeal, but simply provides that “the appeal is deemed abandoned”, which means that the appeal is given up, not that the right of appeal is extinguished. Since the appellant does not forfeit its right, it is not impossible to rectify the situation. The Court of Appeal can exercise its broad general power to rectify the abandonment. While the legislature has created an absolute presumption of abandonment by using the words “the appeal is deemed abandoned” in art. 503.1, it did not exclude that article from the scope of the Court of Appeal's general power. To remedy the effects of the abandonment, it is neither appropriate nor necessary to grant special leave to appeal when the case has already been duly appealed. It is sufficient to order that the file that has already been opened be reinstated. Accordingly, this power is not subject to the restrictions applicable to special leave to appeal set out in para. 2 of art. 523, although the Court of Appeal may consider them when exercising its discretion. Moreover, the criteria set out in the case law that guide the exercise of the discretion to grant special leave to appeal are just as relevant with regard to the Court of Appeal's general power.

In this case, the Court of Appeal should have used its general power under para. 2 of art. 523 to remedy the effect of the abandonment of the appeal and thus safeguard the appellant's rights. Although its counsel acknowledged that he had made an error concerning the applicable law, such an error must not prevent the safeguarding of the rights of the party he represents where it is possible, as here, to rectify the error without injustice to the opposing party. Moreover, it is not argued that the appeal is frivolous, improper or dilatory. Finally, apart from his ignorance of the amendment to the legislation, counsel for the appellant acted diligently. It is ordered that the appeal be reinstated.

Cases Cited

Referred to: Duquet v. Town of Sainte‑Agathe‑des‑Monts, 1976 CanLII 13 (SCC), [1977] 2 S.C.R. 1132; Québec (Communauté urbaine) v. Services de santé du Québec, 1992 CanLII 122 (SCC), [1992] 1 S.C.R. 426; St‑Hilaire c. Bégin, 1981 CanLII 21 (SCC), [1981] 2 S.C.R. 79; Bowen v. City of Montreal, 1978 CanLII 14 (SCC), [1979] 1 S.C.R. 511; Cité de Pont Viau v. Gauthier Mfg. Ltd., 1978 CanLII 4 (SCC), [1978] 2 S.C.R. 516; D’Aragon & Associés inc. v. Gravel, 1995 CanLII 4949 (QC CA), [1996] R.D.J. 33.

Statutes and Regulations Cited

Act respecting the implementation of the reform of the Civil Code, S.Q. 1992, c. 57, s. 142.

Civil Code of Québec, S.Q. 1991, c. 64, preliminary provision, arts. 2847, 2878.

Code of Civil Procedure, R.S.Q., c. C‑25, arts. 2, 9, 20, 198.1 [en. 1985, c. 29, s. 9], 494 [am. 1982, c. 32, s. 35; am. 1983, c. 28, s. 19; am. 1989, c. 41, s. 1; am. 1992, c. 57, s. 285; am. 1993, c. 30, s. 6; am. 1995, c. 2, s. 3], 500 [am. 1993, c. 30, s. 11], 503 [repl. 1982, c. 32, s. 39; am. 1993, c. 30, s. 12], 503.1 [en. 1993, c. 30, s. 13; repl. 1995, c. 2, s. 5], 523 [am. 1985, c. 29, s. 11; am. 1992, c. 57, s. 422].

Authors Cited

Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.

Quebec. National Assembly. Standing Committee on Institutions. Journal des débats, December 13, 1994, CI‑3, pp. 17 and 22.

Rapport de la Cour d’appel du Québec, mars 1994.

APPEAL from a judgment of the Quebec Court of Appeal, 1995 CanLII 4918 (QC CA), [1995] R.J.Q. 2853, dismissing the appellant's motion for revocation of a certificate of abandonment of appeal. Appeal allowed.

Bernard Faribault, for the appellant.

No one appeared for the respondent.

English version of the judgment of the Court delivered by

1Gonthier J. ‑‑ Article 503.1 of the Code of Civil Procedure, R.S.Q., c. C‑25 (“C.C.P.”), came into force on March 16, 1995. It provides that an appeal is automatically abandoned where the appellant’s factum is not served and filed within the time set out in art. 503 C.C.P. unless an application for an extension is filed within that time. The present appeal provides this Court with an opportunity to determine whether the Court of Appeal has jurisdiction to rectify an abandonment required by this provision and, if so, in what circumstances.

I -‑ Facts

2The appellant brought an action for $159,042.86 in damages against the respondent in the Superior Court. The respondent filed a cross demand for $45,525.28 in damages. On March 3, 1995, Justice Ivan St‑Julien of the Superior Court rendered judgment dismissing the principal demand and allowing the cross demand for $40,734.02. The appellant appealed that decision on March 28, 1995. On July 6, 1995, counsel for the appellant sent counsel for the respondent a letter to inform him that he would be able to send him the final version of his factum by August 15, 1995 at the latest. He also raised the possibility of bringing a motion in the Court of Appeal for an extension of the time allotted for serving his factum. His letter was never answered. The appellant ultimately failed to serve and file its factum within 120 days of the filing of the inscription in appeal, as required by art. 503 C.C.P., and the appeal was accordingly deemed abandoned pursuant to art. 503.1 C.C.P. On July 27, 1995, the clerk of the Court of Appeal recorded the appellant’s failure to file its factum within the allotted time and issued a certificate stating that the appeal was abandoned. On July 29, 1995, counsel for the appellant learned of the certificate when the firm responsible for preparing his factum notified him that the Court of Appeal had requested that the file be returned to it because the appeal had been abandoned.

3On August 1, 1995, the appellant filed a motion in the Court of Appeal seeking to be relieved from its default and to be granted an extension of time to file its factum or, in the alternative, to be granted special leave to appeal (arts. 2, 20, 503.1 and 523 C.C.P.). Counsel for the appellant pleaded error, that is, his own ignorance of the new provision. The Court of Appeal dismissed the motion in a majority decision. Chamberland J.A. dissented; he would have granted the appellant the special leave to appeal provided for in art. 523 C.C.P.

II -‑ Decision of the Court of Appeal, 1995 CanLII 4918 (QC CA), [1995] R.J.Q. 2853

Tourigny J.A. (Chouinard J.A. concurring)

4Tourigny J.A. concluded that an abandonment required by art. 503.1 C.C.P. can be rectified only under art. 523 C.C.P. She wrote the following with respect to the application of art. 523 C.C.P., at p. 2855:

[translation] [R]eliance was placed both on the Court’s jurisdiction to make any order necessary to safeguard the rights of the parties and on the special leave to appeal provided for in that article, on the conditions set out therein.

The first of these is possible only when there is still an appeal before the Court, which has no longer been the case since the abandonment of the appeal. The appeal no longer exists, and I for one do not see where this court would derive jurisdiction to make such an order. The very wording of article 503.1 C.P. creates a presumption juris et de jure that the appeal has been abandoned.

The legislature used the word “deemed”; it could have used the word “presumed” or another word whose object is not, in law, as specific as that of the word it chose, which excludes any possibility of proof to the contrary.

In her view, the Court of Appeal can circumvent an abandonment required by art. 503.1 C.C.P. only by granting special leave to appeal. She decided, however, that such leave should not be granted in this case. In her opinion, the specific circumstances surrounding the enactment of art. 503.1 C.C.P. lead to the conclusion that counsel for the appellant’s ignorance of the law cannot be interpreted as providing a basis for the requested remedy.

Chamberland J.A. (dissenting)

5Chamberland J.A. agreed with Tourigny J.A.’s analysis of the court’s powers. However, he was of the view that in this case the Court of Appeal should exercise its discretion and grant the appellant special leave to appeal, first because of the principle set out by this Court that an error by counsel must not deprive the party he or she represents of its rights where it is possible to rectify the error without injustice to the opposing party, and second because the appeal was not improper or dilatory.

III -‑ Analysis

A. Article 503.1 C.C.P.

6Before the coming into force of art. 503.1 C.C.P., when an appellant failed to serve and file its factum within the time set out in the Code of Civil Procedure, the respondent could serve and file at the office of the court a default notice summoning the appellant to file its factum or seek an extension of time to file its factum within 30 days. If the appellant were still in default when the 30 days expired, the respondent could verbally request the clerk of the Court of Appeal to record the default and issue a certificate stating that the appeal was abandoned (former art. 503.1 C.C.P., S.Q. 1993, c. 30, s. 13). That procedure was cumbersome and required the opposing party to take the initiative. It therefore encouraged counsel to take a lax approach, which resulted in needless delays and congestion of the Court of Appeal’s roll.

7In March 1994, the judges of the Court of Appeal recommended a number of measures to the legislature to solve the problem of delays in the Court of Appeal: Rapport de la Cour d’appel du Québec, March 1994. One of the proposed methods was to have appeals dismissed administratively when counsel failed to file a factum within the time prescribed. The dismissal was to occur without the intervention of the opposing party. The recommendation was worded in part as follows, at p. 70:

[translation] [T]hat where the appellant fails to file its factum within the allotted time, the appeal be deemed abandoned unless the appellant files a motion for an extension before the expiry of the time [allotted for filing the factum]; the extension should not exceed 30 days barring exceptional circumstances owing to the nature of the case; [Emphasis in original.]

8In response to that recommendation, art. 503.1 C.C.P. was enacted by the legislature and assented to in January 1995. It reads as follows:

503.1 Where the factum is not served and filed within the time prescribed by article 503, the appeal is deemed abandoned unless an application for an extension is served and filed at the office of the court by the appellant before the expiry of the prescribed time. The extension may be granted, on a motion, by a judge of the Court of Appeal for a period which, barring exceptional circumstances owing to the nature of the case, may not exceed 30 days.

Where the appellant has not, within the allotted time, filed and served his factum and no application for an extension, or motion under article 505.1, is pending, the clerk of the Court of Appeal shall record the default and issue a certificate stating that the appeal is abandoned with costs.

The purpose of this provision is clearly to reduce delays in the Court of Appeal. It makes it possible to trim the court’s roll by preventing appeals from dragging on endlessly and by eliminating improper and dilatory appeals. Through this provision, the legislature has unambiguously provided for the administrative abandonment of appeals solely as a result of the passage of time. Can the Court of Appeal exercise its discretion to set aside such an abandonment?

B. Possibility of Rectifying an Abandonment of an Appeal Required by Art. 503.1 C.C.P.

(1) Spirit of the Code of Civil Procedure

9When the legislature reformed the Code of Civil Procedure in 1966, its intention was to put an end to the excessive formalism that marked the former Code so that procedure would serve primarily to make the substantive law effective and ensure that it was carried out, not to compromise it. It made this intention explicit in art. 2 C.C.P.:

2. The rules of procedure in this Code are intended to render effective the substantive law and to ensure that it is carried out; and failing a provision to the contrary, failure to observe the rules which are not of public order can only affect a proceeding if the defect has not been remedied when it was possible to do so. The provisions of this Code must be interpreted the one by the other, and, so far as possible, in such a way as to facilitate rather than to delay or to end prematurely the normal advancement of cases.

This Court has recognized that this was the legislature’s intention on a number of occasions, in particular in Duquet v. Town of Sainte‑Agathe-des-Monts, 1976 CanLII 13 (SCC), [1977] 2 S.C.R. 1132, where Pigeon J. stated the following, at p. 1140: “In fact, the governing intention behind the whole new Code was the desire to bury the old adage that ‘form takes precedence over substance’”. (See: Québec (Communauté urbaine) v. Services de santé du Québec, 1992 CanLII 122 (SCC), [1992] 1 S.C.R. 426, at pp. 433‑36.)

10However, the reform of the Code of Civil Procedure does not exempt anyone from compliance with the rules of procedure set out in the Code. Procedure is necessary for the proper administration of justice, although it must not serve as the basis for excessive formalism. In Québec (Communauté urbaine) v. Services de santé du Québec, supra, L’Heureux‑Dubé J. wrote the following, at p. 435:

[I]t is clear that, barring undue formalism, the peremptory provisions of the Code of Civil Procedure must be observed, as procedure judiciously applied provides an additional guarantee that the rights of litigants will be respected. This is especially true in the context of an appeal because . . . the right of appeal is a statutory creation, the very existence of which is subject to precise rules.

(2) Paragraph 2 of Art. 523 C.C.P.

11In keeping with the spirit of the Code of Civil Procedure, para. 2 of art. 523 C.C.P. confers a broad discretion on the Court of Appeal to safeguard the rights of the parties:

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. However such leave cannot be granted in respect of a judgment rendered in the circumstances contemplated in article 198.1.

12I agree with the Court of Appeal’s conclusion that it is this provision that must be relied on to remedy the effect of art. 503.1 C.C.P. A number of cases similar to this one have arisen in the Court of Appeal. In some of them, counsel applied for an extension of time to bring the motion provided for in art. 503.1, that is, a motion to a Court of Appeal judge for an extension of the time set out in the Code of Civil Procedure for filing a factum. The deemed abandonment of an appeal required by art. 503.1 C.C.P. closes the file, which makes it impossible for the court to grant such a motion. Some counsel have filed a motion for revocation of judgment with the Court of Appeal. However, as correctly noted by Tourigny J.A. in her reasons, the certificate of abandonment states a fact; it is not a judgment and therefore cannot be revoked.

13There have been numerous judgments concerning para. 2 of art. 523 C.C.P., inter alia by this Court. (See: Québec (Communauté urbaine) v. Services de santé du Québec, supra; St‑Hilaire v. Bégin, 1981 CanLII 21 (SCC), [1981] 2 S.C.R. 79; Bowen v. City of Montreal, 1978 CanLII 14 (SCC), [1979] 1 S.C.R. 511; Cité de Pont Viau v. Gauthier Mfg. Ltd., 1978 CanLII 4 (SCC), [1978] 2 S.C.R. 516.) This Court has interpreted this provision in a broad and liberal fashion, in keeping with the spirit of the Code of Civil Procedure, so that it may achieve its primary purpose of safeguarding the rights of the parties.

14Paragraph 2 of art. 523 C.C.P. confers a broad discretion on the Court of Appeal to make “any order necessary to safeguard the rights of the parties” (general power), and then limits this power where a party applies to the Court of Appeal for leave to appeal after the time set out in art. 494 C.C.P. has expired (special leave to appeal). It is clear from the wording of para. 2 of art. 523 that two conditions must be met for the Court of Appeal to be able to grant special leave to appeal: (1) no more than six months must have elapsed since the judgment; and (2) it must have been impossible for the party to act sooner. Paragraph 2 of art. 523 also provides that special leave to appeal cannot be granted in respect of a judgment rendered in the circumstances contemplated in art. 198.1 C.C.P., that is, after an unsuccessful attempt to serve the proceeding introductive of suit in a foreign state. One of the main reasons for limiting the Court of Appeal’s power to grant special leave to appeal is no doubt to ensure the certainty of judgments. Paragraph 2 of art. 523 C.C.P. does so, while allowing the Court of Appeal some flexibility where it was impossible for a party to act within the allotted time, by creating an exception to the rule set out in art. 494 C.C.P. that the time limits for appealing a decision “are peremptory and their expiry extinguishes the right of appeal”. (See: Québec (Communauté urbaine) v. Services de santé du Québec, supra, at pp. 440‑41.)

15This Court has broadly interpreted the conditions that must be met for the Court of Appeal to grant special leave to appeal. (See: St‑Hilaire v. Bégin, supra; Cité de Pont Viau v. Gauthier Mfg., supra.) However, since this is an exception to the Court of Appeal’s general power, this Court has strictly interpreted the cases in which special leave to appeal is required. Thus, in Québec (Communauté urbaine) v. Services de santé du Québec, supra, Services de santé du Québec had asked the Court of Appeal to correct a defect in the inscription of its incidental appeal. The Court of Appeal had refused to do so, stating that it could correct this type of defect only through its power to grant special leave to appeal and that it was impossible for it to use that power because six months had elapsed since the judgment at first instance. This Court, per L’Heureux‑Dubé J., noted that a distinction must be made between an incidental appeal (art. 500 C.C.P.) and the principal appeal or a cross‑appeal, because the former is not subject to art. 494 C.C.P. This Court therefore reversed the Court of Appeal’s decision and found that the Court of Appeal could correct the defect using its general power. L’Heureux‑Dubé J. wrote the following, at p. 444:

[I]t is important to stress the discretion conferred on the Court of Appeal by art. 523 C.C.P., a discretion broad enough to “make any order necessary to safeguard the rights of the parties”. That is the general rule. Article 523 provides for only two exceptions: one relating to art. 494 C.C.P. and the other to art. 198.1 C.C.P.

Given this, it follows that the general rule must be given a broad and liberal interpretation and the exception, on the other hand, must be strictly interpreted. [Emphasis added.]

(3) Application of Para. 2 of Art. 523 C.C.P. to the Abandonment of an Appeal

16In the present case, I conclude that the Court of Appeal can use the broad general power conferred on it by para. 2 of art. 523 C.C.P. to rectify the abandonment of the appeal required by art. 503.1 C.C.P. in order to safeguard the rights of the parties. With respect, I do not feel that it is necessary in this case to rely on special leave to appeal.

17Unlike art. 494 C.C.P., which sets out the time limits for appealing, art. 503.1 C.C.P. does not provide that the expiry of the time limit for serving and filing the factum extinguishes the right of appeal. Article 503.1 simply provides that “the appeal is deemed abandoned”, which means that the appeal is given up, not that the right of appeal is extinguished. The Civil Code of Québec, S.Q. 1991, c. 64, expressly provides that forfeiture must never be presumed:

2878. The court may not, of its own motion, supply the plea of prescription.

However, it shall, of its own motion, declare the remedy forfeited where so provided by law. Such forfeiture is never presumed; it is effected only where it is expressly stated in the text.

This provision applies to the Code of Civil Procedure unless otherwise provided. The preliminary provision of the Civil Code of Québec reads as follows:

The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.

Under art. 503.1 C.C.P., when the appellant fails to file and serve its factum within the allotted time without applying for an extension, the appeal is thus deemed abandoned, but the appellant does not forfeit its right. It is therefore not impossible to rectify the situation; the Court of Appeal can exercise its broad general power to make any order necessary to safeguard the rights of the parties.

18Paragraph 2 of art. 523 C.C.P. does not exclude art. 503.1 C.C.P. from the scope of the Court of Appeal’s general power. It limits that power only as regards special leave to appeal in order to rectify a failure to appeal within the time allowed. However, the appellant’s failure to serve and file its factum within the time allowed cannot be compared to a failure to appeal within the time limits. Where an appellant fails to serve and file its factum within the allotted time, the appellant must have already appealed in accordance with the Code of Civil Procedure. Its right of appeal is established. The deadline that was not met is a procedural deadline, for which the legislature has created a procedural sanction (abandonment) rather than providing for forfeiture of the right of appeal.

19It is true that the legislature has created an absolute presumption of abandonment by using the words “the appeal is deemed abandoned” in art. 503.1 C.C.P. Article 2847 of the Civil Code of Québec and s. 142 of the Act respecting the implementation of the reform of the Civil Code, S.Q. 1992, c. 57, provide as follows:

2847. A legal presumption is one that is specially attached by law to certain facts; it exempts the person in whose favour it exists from making any other proof.

A presumption concerning presumed facts is simple and may be rebutted by proof to the contrary; a presumption concerning deemed facts is absolute and irrebuttable.

142. The rule of interpretation stated in the second paragraph of article 2847 of the new Code, establishing that a presumption concerning “presumed” facts is simple and a presumption concerning “deemed” facts is absolute, applies to legislation other than the Civil Code of Québec and the Code of Civil Procedure only from the date fixed by the Government.

The legislature intended the abandonment of an appeal to occur without the intervention of the parties or the court, thus eliminating a significant cause of delays in cases and congestion of the rolls. However, it did not eliminate the court’s general discretion to safeguard the rights of the parties by making an order to remedy the effects of the abandonment. For that purpose, it is neither appropriate nor necessary to grant special leave to appeal when the case has already been duly appealed. It is sufficient to order that the file that has already been opened be reinstated. Accordingly, this power is not subject to the restrictions applicable to special leave to appeal, although the court may consider them when exercising its discretion.

20The appellant directed this Court’s attention to the parliamentary debates surrounding the enactment of art. 503.1 C.C.P., during which the Minister of Justice explained that, where necessary, the Court of Appeal would be able to rectify an abandonment required by art. 503.1 C.C.P. using the powers conferred on it by art. 9 and para. 2 of art. 523 C.C.P. (Journal des débats, Standing Committee on Institutions, December 13, 1994, CI‑3, at pp. 17 and 22). Parliamentary debates surrounding the enactment of legislation must be read with caution, because they are not always a reliable source for the legislature’s intention (see P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at pp. 364‑67). In the case at bar, the parliamentary debates show that the legislature’s reading of the provision was clear and uncontroversial and confirm that the interpretation given is correct.

(4) Error by Counsel

21This Court has held on a number of occasions “that a party must not be deprived of his rights on account of an error of counsel where it is possible to rectify the consequences of such error without injustice to the opposing party” (Bowen v. City of Montreal, supra, at p. 519). This principle has generally been stated with reference to the Court of Appeal’s power to grant special leave to appeal under para. 2 of art. 523 C.C.P. where it was in fact impossible for the party to act sooner (Cité de Pont Viau v. Gauthier Mfg., supra, at p. 528; St‑Hilaire v. Bégin, supra, at pp. 86-88). However, this Court has also applied the principle in the context of the Court of Appeal’s general power (Québec (Communauté urbaine) v. Services de santé du Québec, supra, at p. 448).

(5) Discretion of the Court of Appeal

22Paragraph 2 of art. 523 C.C.P. confers a discretion on the Court of Appeal. To quote that provision, the Court of Appeal “may make any order necessary to safeguard the rights of the parties” (emphasis added); it is not obliged to do so.

23In Cité de Pont Viau v. Gauthier Mfg., supra, Pratte J. set out certain criteria to guide the exercise of the discretion to grant special leave to appeal (at p. 528):

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. . . . 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.

These criteria are just as relevant with regard to the Court of Appeal’s general power. (See: Québec (Communauté urbaine) v. Services de santé du Québec, supra, at pp. 446‑48.)

24It will also be recalled that this provision was enacted to promote the proper administration of justice. This means that in some cases the Court of Appeal can refuse to exercise its discretion for reasons related to the efficient functioning of the court and the requirements of the proper administration of justice. I refer in this regard to what Fish J.A. said in D’Aragon & Associés inc. v. Gravel, 1995 CanLII 4949 (QC CA), [1996] R.D.J. 33, at p. 42:

Before concluding, I wish to make plain my full agreement with those who feel that the Court should require all appellants to either proceed with diligence or clear the way for others who are willing to do so.

[I]f the appeal is manifestly without merit, or if allowing the appellant an additional delay would irreparably prejudice the respondent, there can in my mind be no question of any extension at all.

With respect, however, adherence to a policy of firmness does not require the Court to systematically discard (or decline to reinstate) apparently serious appeals on the sole ground that appellant’s counsel, through error or negligence, applied shortly after the 120th day, instead of, say, on the 119th, to file a factum that has since been completed.

Dismissal of a serious appeal for this reason may well result in irreparable injustice.

C. Application of the Law to the Facts

25With all due respect to the majority of the Court of Appeal, I conclude that the Court of Appeal should have exercised its general power under para. 2 of art. 523 C.C.P. to remedy the effect of the abandonment of the appeal and thus safeguard the appellant’s rights. Counsel for the appellant acknowledged that he had made an error concerning the applicable law. However, an error by counsel must not prevent the safeguarding of the rights of the party he or she represents where it is possible to rectify the error without injustice to the opposing party. In the present case, it does not appear that the respondent would be prejudiced in any way. Moreover, it is not argued that the appeal is frivolous, improper or dilatory. In fact, the appeal to this Court is uncontested. Finally, apart from his ignorance of the amendment to the legislation, counsel for the appellant acted diligently. Before the time allotted for filing his factum had expired, he sent his colleague a letter to inform him that the factum would be completed shortly and to raise the possibility of bringing a motion for an extension of time. That letter was never answered. When notified of the abandonment, counsel for the appellant promptly filed a motion to rectify it.

IV -‑ Disposition

26For these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal, order that the appeal be reinstated and authorize the appellant 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 without costs.