Date: 20060504
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
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.
Date:
20060504
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
LÉTOURNEAU J.A.
[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.
“Gilles
Létourneau”
“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
DATE OF HEARING: May 2, 2006
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DÉCARY J.A.
PELLETIER J.A.
DATED: May 4, 2006
APPEARANCES:
Roger Gauthier
Montréal, Quebec
|
FOR THE
APPELLANT
|
Antoine
Lippé
|
FOR THE
RESPONDENT
|
SOLICITOR
OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|