Canada Post Corp. v. Canadian Union of Postal Workers

Gonthier J. ‑‑ This appeal raises the same point of law as Construction Gilles Paquette ltée v. Entreprises Végo ltée, [1997] 2 S.C.R. 299, which was heard and decided at the same time as the instant case.

I - Facts

The respondent applied to the Superior Court for judicial review of an arbitration award rendered by the mis en cause. On February 22, 1995, Trahan J. of the Superior Court granted the respondent’s application in part: D.T.E. 95T-746, [1995] Q.J. No. 637 (QL). The respondent appealed that decision on March 21, 1995. A few days later, the appellant filed an incidental appeal, the regularity of which is not at issue in the case at bar. The respondent failed to serve and file its factum within the time prescribed in art. 503 of the Code of Civil Procedure, R.S.Q., c. C‑25 (“C.C.P.”), and its appeal was accordingly deemed abandoned pursuant to art. 503.1 C.C.P. On August 9, 1995, the clerk of the Court of Appeal recorded the default and issued a certificate stating that the appeal was abandoned. Counsel for the respondent learned of the certificate on August 15, 1995. He then filed a motion asking the Court of Appeal to declare that the appeal had not been abandoned and extend the time for service and filing of his factum.

In the Court of Appeal counsel for the respondent maintained that he was aware of the Code of Civil Procedure’s new requirements but had got the dates confused. At the time, he had two other cases before the Court of Appeal involving the same parties as the instant case but with slightly different dates. On November 21, 1995, the Court of Appeal granted the respondent’s motion: J.E. 96-22, [1995] Q.J. No. 885 (QL).

II - Decision of the Court of Appeal, J.E. 96-22

Bisson J.A.

Bisson J.A. concluded that under art. 523 C.C.P. the Court of Appeal has jurisdiction to set aside an abandonment required by art. 503.1 C.C.P., first because art. 503.1 C.C.P. does not provide for forfeiture of the right of appeal, and second because of the broad powers conferred on the Court of Appeal by art. 523 C.C.P. He found this to be a case where the Court of Appeal should exercise its discretion. Counsel for the respondent merely made a technical error that was not prejudicial to the appellant. Moreover, once he noticed the error, he acted quickly to rectify it.

Fish J.A.

Fish J.A. concurred with Bisson J.A.’s conclusion, but did so by applying the principles he had set out in D’Aragon & Associés inc. v. Gravel, [1996] R.D.J. 33, to the present case. In D’Aragon, Fish J.A. held that the Court of Appeal has jurisdiction to remedy the effects of an abandonment required by art. 503.1 C.C.P. pursuant to its broad discretion under art. 523 C.C.P. to make any order necessary to safeguard the rights of the parties.

Forget J. (ad hoc)

Forget J. concurred with Bisson J.A. because he considered himself bound by the Court of Appeal’s decision in Construction Gilles Paquette ltée v. Entreprises Végo ltée, [1995] R.J.Q. 2853.

III - Analysis

For the reasons set out by this Court in Construction Gilles Paquette ltée, supra, I conclude that the abandonment of the appeal should be rectified pursuant to the Court of Appeal’s general power under para. 2 of art. 523 C.C.P. As Bisson J.A. pointed out in his reasons, the error made by counsel for the respondent is a merely technical one that can be rectified in order to safeguard the respondent’s rights without prejudicing the appellant (at p. 10 of the full text):

[translation] I am of the view, however, that the technical error is not fatal and that it did not cause any prejudice to the respondent Union, especially since the Union has filed an incidental appeal which is pending and in which it challenges part of the judgment a quo.

Furthermore, it is not argued that the appeal is frivolous, improper or dilatory. Finally, after receiving notice of the abandonment of the appeal, the respondent acted quickly to rectify it.

IV - Disposition

In the judgment appealed from, Bisson J.A. made the following order, at p. 11: