Gagné, Cotnam, Beaupré
Application de bene esse for leave to file a notice of incidental appeal. Granted.
The appellant sued the respondent, alleging that it had unlawfully maintained an advertising billboard, thereby preventing the appellant from obtaining a permit to install his own billboard. The appellant claimed $361,421 in loss of income. The trial judge ordered the respondent to pay $50,786 in damages. The appellant filed a notice of appeal, invoking an error in the assessment of damages, and in response, the respondent sought the dismissal of the appeal. Further to the dismissal of that application, the respondent presented the application under consideration here, raising issues related to causation, extinctive prescription, and the scope of its liability. It submits that the criterion of impossibility to act sooner set out in articles 84 and 363 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.) does not apply to incidental appeals and that it need only convince the Court of the appropriateness of its appeal.
The second paragraph of article 363 provides that the Court may authorize an appeal if not more than six months have elapsed since the judgment and if it considers that the appeal has a reasonable chance of success and that, in addition, it was impossible in fact for the appellant to act earlier. The Court may, even after the time limit has expired, authorize an incidental appeal if it considers it appropriate. The rule of specialia generalibus derogant — according to which specific rules derogate from general rules — and the choice made by the legislature, set out in the second paragraph of section 363 C.C.P., to distinguish incidental appeals from principal appeals, leads to the conclusion that the criterion of impossibility in fact to act does not apply to incidental appeals after expiry of the time limit. This solution is also based on the fact that the objective of the stability of judgments is not generally at issue when determining whether to authorize an incidental appeal after expiry of the time limit. That being said, it is important to keep in mind the objectives of promptness and efficiency of civil justice. The Court may consider all the relevant factors, including the reasons for the delay, to determine whether it is appropriate to authorize the incidental appeal after expiry of the time limit.
In this case, the Court cannot fault the respondent for having first focussed on the dismissal of the principal appeal and conclude, based on that fact alone, that the proposed incidental appeal is inappropriate. The dismissal of the principal appeal would have removed the case from the Court, in which case, the respondent would not have been able to bring an incidental appeal after expiry of the time limit. Following the judgment concerning the dismissal of the appeal, it could seek authorization to bring an incidental appeal after expiry of the time limit, subject to acting diligently, not unduly delaying the course of the appeal, and raising serious issues. Those conditions are met here.
Legislation interpreted: article 363 C.C.P.
Text of the decision: Http://citoyens.soquij.qc.ca