April 17, 2018
Rochette, Levesque, Ruel
Application de bene esse for recognition of the lawfulness of an incidental appeal. Allowed.
The appellant brought an action in damages alleging that the respondent breached its contractual obligations towards it. In response, the respondent claimed the balance owing under the contract, among other things. It also called its insurer in warranty for indemnification against any claim that might be rendered against it. The trial judge dismissed the principal application, allowed the cross-application in part, and dismissed the action in warranty. The appellant filed and served a notice of appeal within the prescribed time period. The respondent filed a first notice of incidental appeal in its capacity as principal defendant and cross-plaintiff and a second notice of incidental appeal in its capacity as plaintiff in warranty. The respondent’s insurer was of the view that the incidental appeal against it was irregular and sought the dismissal of the action in warranty.
Once the notice of appeal is filed, article 359 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.) entitles any other party, without distinction, to initiate an incidental appeal that will continue despite the withdrawal or dismissal of the principal appeal. This provision does much more than reiterate the previous law. This right is no longer granted only to the respondent in the context of its conflict with the “adverse party”, as was the case under the former article 500 C.C.P. The use of the term “case”, which is broad in scope, in article 359 C.C.P. also seeks to render the incidental appeal available to every party to a dispute. This significant change has the purpose and effect of simplifying the rules applicable to incidental appeals, while ensuring that the substantive law is rendered effective and is carried out. It encourages the parties to respect the principle of proportionality. Moreover, the insurer’s argument that the legislator chose to abolish the rule set out in the former article 495.1 C.C.P. is without merit because we would thus return to the long-deplored situation where a last-minute principal appeal would compel a party wishing to appeal from a judgment rendered in an action in warranty, but taken by surprise, to file an application for leave to appeal after expiry of the deadline. In this case, the incidental appeal from the judgment rendered in the action in warranty was properly initiated within the time prescribed by the second paragraph of article 360 C.C.P.
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