Lord v. The Queen

is an appeal from a judgment of the Court of Queen's Bench dismissing an appeal from a judgment of the Superior Court for want of jurisdiction.

The appellant some time afterwards applied to the Lieutenant Governor in Council for redress for the grievances of which he had complained in his Petition of Right. Thereupon an order in council was passed whereby, after reciting the proceedings in the case Marchand v. The Attorney General, as well as those the appellant's own Petition of Right, the Crown waived the appellant's delay in instituting an appeal in the present cause and consented that the appellant should be permitted to appeal from the judgment of the Superior Court a2ainst him, and that so far as Her Majesty was concerned the appellant should be permitted to institute an appeal from the judgment against him with the same effect as if he had done so within the delay allowed by law.

Thereupon the appellant did forthwith institute an appeal to the Court of Queen's Bench.

On this appeal coming on to be heard the Crown, abiding by the order in council, did not insist on the forfeiture of the right of appeal by reason of the delays and took no objection to the jurisdiction of the court. The court however ex mero motu raised the point of jurisdiction and holding that it was not competent to entertain an appeal after the expiration of the delays prescribed by law, dismissed the appeal for want of jurisdiction. The judgment of the court is in these words: This judgment was accompanied by notes prepared by the learned Chief Justice of the Queen's Bench in which it was explained that this court did not consider it was competent for the Crown to renounce to the delays as it had done by the order in council, since the articles of the Code of Procedure were enactments of public order, and pointing out that this decision was founded on the jurisprudence now prevailing in the French Court of Cassation.

The articles of the Code of Procedure bearing on the question in this appeal are the following:

The Chief Article

The inscription in appeal from the judgment of the Justice. court of original jurisdiction or from that of the Court of Review, cannot be filed except within thirty days from the rendering of the judgment appealed against.

Article

Proceedings in appeal must be brought within months from the date of the judgment, saving the cases provided by articles 924, 1010 and

This delay binding even upon minors, women under martial authority, persons interdicted or unsound mind, and upon persons absent from the province when those have been duly brought into the suit.

Article

Unless the court otherwise orders, the respondent may, within eight days next after the period allowed to appear, up by motion any exception resulting from :

Non-existence or forfeiture of the right of appeal.

The articles of the French Code of Procedure providing for delays in appealing are as follows:

Article 443 P. francais.

Le pour interjeter appel sera deux mois.

Article 444.

ddlais emporteront dichdance ; ils courront contre toutes parties, sauf le recours contre qui de droit; mais ils courront contre le mineur non 6mancip6 que de jour le jugement aura t signifi6 tant au tuteur, qu'au subrog6 tuteur, encore que dernier n'ait pas et en cause.

There can, I think, be no doubt but that article 1220 applies to appeals in Petitions of Right as well as to appeals in actions between ordinary suitors.

Had there been no authority on the question presented I should have thought it clear that there was no want of jurisdiction in the Court of Queen's Bench to entertain this appeal.

The delay imposed is like all other delays in procedure, imposed principally for the benefit of the party, though in a sense it may be said that public policy, which requires the prompt despatch of causes, has also influenced the legislature. However this may be it has always been considered competent to the parties conventionally to enlarge the delays for appearing, pleading, the hearing causes and such like proceedings though these are Mef prescribed for the same purpose as the limit of the time for appealing.

Indeed public policy which favours the compromise of litigation requires that this should be so. But beyond this, in matters of much greater importance than procedure and in which the rights of the parties are involved, they are permitted to enlarge the delays fixed by the law. Thus prescription, even acquired, can be renounced.

Again the defence of res judicata may be waived by agreement of the parties. And in many other cases it is competent to the parties to renounce their strict rights.

I am at a loss, therefore, to see why any difference should be made as regards the time for appealing.

The Court of Queen's Bench appear from the notes of the learned Chief Justice to have been influenced by a decision of the Court of Cassation pronounced in 1849 which is said now to be followed in France. Up to the date of this decision the Court of Cassation itself and the highest authorities amongst the authors, especially Merlin, who discusses the question fully, were the other way.

Should we then be bound by this single decision of the French Court of Cassation ?

Notwithstanding the very high authority of the court and the great learning of its judges, the decision is not even binding on the court itself but may be repudiated as an authority at any time.

I need not say it has no direct authority as regards Canadian courts. Moreover the wording of Article 444 of the French Code of Procedure is expressed in stronger terms than is the article of the Quebec Code.

Further it appears to me that Article 1220 of the Quebec Code, requiring exceptions to the right to appeal, founded on forfeiture to be taken within eight days after the time to appear, has an important bearing on the question involved.

Therefore on the authorities preceding the arret of 1849, referred to in the judgment of Chief Justice Lacoste, I would, if there was nothing more in the case, have come to the conclusion that it was competent to the Crown to waive the delay.

There is however an authority in this court which is binding on us.

I refer to the case of Cimon v. The Queen (1) cited in the appellant's factum. In that case the objection was taken that the appeal to the Court of Queen's Bench, which had there admitted the appeal, was taken too late. The Queen's Bench had there largely increased the amount awarded to the respondent by the Superior Court, and this court by a majority allowed the appeal and restored the first judgment.

Mr. Justice Fournier, one of the minority here, in his judgment fully discusses the point and decides it adversely to the objection to the competence of the Queen's Bench, and this opinion was acquiesced in by the majority.

I should have said that the Crown appeared by counsel on the hearing of this appeal and declined to take any part in the argument.

The appeal must be allowed and the case remitted to the Court of Queen's Bench to be there heard on the merits.

Appeal allowed with costs.