Court of Appeal of Quebec

Digital Shape Technologies Inc. c. Walker

September 11, 2017


Mainville, Hogue, Healy

Motion for leave to appeal from a judgment of the Superior Court dismissing an application to review a decision of the special clerk dismissing an application to amend a pleading. Dismissed.

The applicants wish to amend their motion to institute proceedings to seek a solidary condemnation against the impleaded party. The trial judge upheld the special clerk’s analysis, finding that the time that had passed was unacceptable and that the interests of justice required that the defendant’s case, which was essentially complete, be scheduled for hearing without further delay.

Contrary to the position defended by the applicants, whether or not the impleaded party is sued with the defendant in the same action changes nothing with respect to the interruption of prescription the applicants can invoke against the impleaded party if they demonstrate that the conditions in article 2900 of the Civil Code of Québec (C.C.Q.) are met. Thus, the applicants have not demonstrated that the impugned decision caused them irremediable harm. In terms of the applicants, the Superior Court judgment is a kind of case management measure, which is generally not subject to appeal. Rather, it is the defendant and the impleaded party who risk suffering irremediable harm because, if they are sued in separate actions, they will not be able to invoke interruption of prescription against each other under article 2896 C.C.Q. The position they have adopted, however, suggests that they waive this remedy. Finally, while it is true that the joining of actions in the same judicial application meets the demands for efficiency and proportionality that foster the sound administration of justice, there is nothing to establish that either the judge or clerk was wrong to find that the defendant would suffer significant harm primarily because of the delay in the hearing if the amendment were authorized. 

*Summary by SOQUIJ
Text of the decision: Http:// This link open an external website in a new window.

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