Gagnon, Mainville, Hamilton

Appeal from a judgment of the Superior Court finding that there was a presumed discontinuance. Allowed.

The appellant instituted proceedings against the respondent city before the Commercial Division of the Superior Court. In October 2019, a judgment ordered the parties to agree on a case protocol. In April 2021, as the file was progressing, the respondent alleged that the appellant was presumed to have discontinued its application because it failed to file a request for setting down within six months of its protocol being accepted. The trial judge agreed with the respondent after concluding that articles 173 and 177 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.) applied in this case.

Article 173 C.C.P. provides that a plaintiff must, within six months after the date on which the case protocol is presumed to be accepted, file a request with the court office to have the case set down for trial and judgment. The presumption of discontinuance under article 177 C.C.P. applies when the plaintiff fails to respect this strict time limit. Under sections 212.4 and 212.5 of the Directives of the Superior Court for the District of Montreal, applications in the Commercial Division—except in oppression cases—are not subject to the filing of a protocol. Pursuant to section 215.3 of the Directives, these applications are not subject to filing a request for setting down, but are instead subject to the filing of a joint declaration that a file is complete. The question is therefore whether the order compelling the parties to file a case protocol subjected the proceedings to the application of articles 173 and 177 C.C.P., notwithstanding that the Directives provide for the contrary.

The order that the parties file a case protocol was not intended to also order that the parties be subject to the six-month time limit under article 173 C.C.P. and require them to file a request to have the case set down for trial and judgment. As a result, the sanction for failing to act within the time limit set out in article 177 C.C.P. does not apply to this case. This conclusion flows from the fact that the Directives do not require the filing of a request to have the case set down because this is not an oppression case. If the judge who rendered the order had intended to derogate from the Directives and subject the case to this procedural obligation, he would have done so expressly given the significant consequences that flow from missing the deadline to file the request to have the case set down for trial and judgment. Furthermore, any ambiguity as to the intentions of the judge who made the order is resolved by his subsequent judgments in this file, which tend to indicate that he did not intend to impose the six-month time limit under article 173 C.C.P. on the litigation.

Text of the decision: http://citoyens.soquij.qc.ca