BETWEEN:
and
Respondent
Hearing held at Montréal, Quebec, on May 2, 2006.
Judgment delivered at Montréal, Quebec, on May 4, 2006.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DÉCARY J.A.
PELLETIER J.A.
Docket: A-60-05
Citation: 2006 FCA 163
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
ROGER GAUTHIER INC.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal of a decision of Mr. Justice Harrington of the Federal Court (“judge”) who dismissing the appellant’s application for extension of time to appeal against an order of Prothnotary Morneau dated August 17, 2004.
[2] By this order dated August 17, 2004, the prothnotary dismissed the appellant’s rather surprising motion asking the Federal Court to extend the prescriptive period under article 2925 of the Civil Code of Québec, which specifies that an action to enforce a personal right or a movable real right is prescribed by three years, if the prescriptive period is not otherwise established.
[3] This motion is surprising, because the Federal Court obviously does not have jurisdiction to extend or prolong a prescriptive period for a civil law recourse enacted by the Quebec legislature. However, the prothnotary did not dismiss the appellant’s motion on the merits, but rather because the appellant did not abide by an order dated June 21, 2004, ordering it either to retain new counsel within the specified time limit or to present a motion within the same time limit under section 120 of the Federal Courts Rules for authorization to be represented by one of its officers. In this order, the prothonotary informed the appellant that [translation] “the Court will not tolerate any manoeuvre . . . that could be seen as an attempt to avoid in a dilatory or vexatious manner the parties’ obligation to respond to the jurisdictional issue raised in a previous order dated May 17, 2004”. This is the context in which the motion for the extension of the prescriptive period under article 2925 of the Civil Code of Québec was dismissed.
[4] The appellant had to appeal the prothonotary’s decision within ten days following the date on which it received it, that is to say, on September 2, 2004. However, it was only on November 15, 2004 that it served a motion to obtain an extension of the ten-day time limit to appeal. As I have already said, this motion was dismissed by Harrington J. on January 13, 2005.
[5] The hearing of the appeal of the judge’s decision dismissing the motion to extend the prescriptive periods was scheduled for Thursday, March 16, 2006. On this date, the appellant was once again without legal representation, and our Court authorized Mr. Gauthier to represent the appellant. He sought an adjournment from the Court so the appellant could retain the services of counsel. Begrudgingly, considering that the respondent was ready to proceed, and considering that the contestation on the merits of the prothnotary’s decision, which had not even begun, concerned a decision dated August 17, 2004, the Court adjourned the hearing peremptorily to May 2, 2006. At the hearing, the appellant was once again without a solicitor of record, and Mr. Gauthier requested another adjournment, which was refused.
[6] The case was heard. Mr. Gauthier was assisted by Julia Mercier, who explained to the Court, as she had done in a letter addressed to the Court the day before the hearing, that she was unable to represent the appellant and make submissions in the appeal because her law firm had just been contacted by Mr. Gauthier and she had not yet decided whether or not she would agree to represent the appellant. However, Ms. Mercier agreed to appear at the hearing to explain the situation to the Court and help Mr. Gauthier if necessary. This initiative on her part does her credit as an officer of the court.
[7] We took the time to carefully explain to Mr. Gauthier and Ms. Mercier the limited issues raised by this appeal. We then recessed the hearing for the time required to allow Ms. Mercier to discuss with Mr. Gauthier. When the hearing resumed, we heard Mr. Gauthier’s submissions, which, in spite of the clarifications given concerning the issues in this appeal, went far beyond the ambit of the appeal. The respondent limited its pleadings to its written memorandum. Judgment was reserved on the case.
[8] In the matter of the extension of time, the judge had discretion to refuse the request made to him. In this context, considering that the time limits have passed, the appellant’s failure to comply with the terms of a previous order and the hit-and-miss nature of the remedy sought by the appellant, that is to say, the extension of the prescriptive period under article 2925 of the Civil Code of Québec, we cannot conclude that the judge failed to exercise his discretion judicially or in a manner consistent with the law.
[9] For these reasons, I would dismiss this appeal with costs.
“I concur.”
“Robert Décary J.A.”
“I concur.”
“J.D. Denis Pelletier J.A.”
Certified true translation
Michael Palles
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-60-05
APPEAL FROM A DECISION OF MR. JUSTICE SEAN HARRINGTON OF THE FEDERAL COURT DATED JANUARY 13, 2005, DOCKET NUMBER T-967-76.
STYLE OF CAUSE: ROGER GAUTHIER INC.
v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
PELLETIER J.A.
APPEARANCES:
|
Montréal, Quebec
|
FOR THE APPELLANT
|
|
FOR THE RESPONDENT
|
SOLICITOR OF RECORD:
|
Deputy Attorney General of Canada |
FOR THE RESPONDENT
|