Court of Appeal of Quebec

2741-8854 Québec inc c. Restaurant King Ouest inc.

November 02, 2018


Kasirer, Bélanger, Savard

Application for leave to appeal de bene esse and appeal from a judgment of the Superior Court granting an application to dismiss. Allowed.

Relying on art. 51 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.), the trial judge dismissed the applicants’ action to transfer title on the grounds that it was clearly unfounded. To determine the terms of appeal, they now ask the Court to maintain a private law distinction between an abusive judicial application and one that is unfounded. According to the applicants, only the former is governed by art. 30(3) C.C.P. and subject to leave to appeal.

It is true that the legislative framework underlying the decision whereby a judgment dismissing an “abusive” judicial application within the meaning of art. 51 C.C.P. is subject to leave to appeal is more difficult to justify when the “abuse” results solely from a “clearly unfounded” pleading, with no basis for a finding of civil fault. However, that does not justify going against the wording of arts. 30(3) and 51 C.C.P. which, when read together, leave no doubt as to the connection between the two. Accordingly, the judgment a quo dismissing the applicants’ action on a ground set out in art. 51 C.C.P. as an “abuse” is subject to leave to appeal. That being said, the proposed appeal not only meets the criteria for leave to appeal, but should be allowed on its merits. 

*Summary by SOQUIJ
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