Doyon, Moore, Lavallée

Appeal from a judgment of the Court of Québec granting in part an application for dismissal and for a declaration of abuse of procedure. Dismissed.

The respondent is a comedian who, during one of his shows, made comments about the appellant’s son and said that she used her son’s money to purchase luxury items. In 2012, the appellant, her son, and her son’s father filed a discrimination complaint with the Commission des droits de la personne et des droits de la jeunesse. The Commission brought the complaint before the Human Rights Tribunal, which found that the respondent’s remarks were discriminatory. On November 28, 2019, a majority of the Court of Appeal of Quebec dismissed the respondent’s appeal with respect to the son, but allowed it with respect to the appellant. The respondent filed an application for leave to appeal to the Supreme Court of Canada, which was granted. The Commission did not file an incidental appeal on behalf of the appellant. On February 8, 2021, a judge sitting alone granted the appellant’s motion to extend time to serve and file her factum as intervener. On October 29, 2021, the Supreme Court found that the appellant’s son had not suffered discrimination. On January 29, 2022, the appellant brought an action in civil liability for defamation against the respondent. The trial judge found that the action was prescribed, but did not declare it abusive. The appellant challenges that judgment’s findings of inadmissibility.

It cannot be said that the order of February 8, 2021, allowed the appellant to challenge the disposition of the Court of Appeal’s judgment in her respect, because this would transform an order on a motion to extend the time to file an intervener’s factum into an authorization to bring an incidental appeal, which would have to be submitted to a panel of three judges of the Supreme Court. By adding questions that sought to correct the disposition of the judgment in her respect that was not the subject of “this appeal”, the appellant overstepped her role as an intervener and could not hope to see a change in her status. She was not an appellant before the Supreme Court – either through the Commission or personally on her own behalf – and the Court of Appeal judgment brought the dispute as it concerned her to an end and became final upon the expiry of the time limit to appeal on January 27, 2020. The interruption of prescription ended on that date and, pursuant to article 2894 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.), was retroactively annulled. The appellant’s action was therefore prescribed when she instituted it.

With regard to article 2895 C.C.Q., it seeks to temper the rule in article 2894 C.C.Q. The first two conditions for the application of article 2895 C.C.Q. are the existence of a prior demand and the dismissal of that demand without a decision on the merits. Given the remedial role of the measure, this provision must be given a liberal and generous interpretation. According to Gagnon c. Grandchamp Chapiteaux inc. (C.A., 2020-11-18), 2020 QCCA 1544, SOQUIJ AZ-51724176, 2020EXP-2821, 2020EXPT-1938, it cannot correct an error in the nature of the action brought.  In this case, the appellant brought the wrong action. She could have instituted an action in defamation from the start and suspended it pending the outcome of the discrimination action. Article 2895 C.C.Q. is therefore of no assistance to her.

Legislation interpreted: article 2895 C.C.Q.

Text of the decision: Gabriel c. Ward