2022 QCCA 1282, 2022 QCCA 1282

Kui c. Gestolex 2022 QCCA 1282 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030135-222 (700-22-043254-217) DATE: 22 September 2022 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A. MIN KUI APPLICANT – Defendant v.

GESTOLEX, in its capacity as debt assignee of Dunton Rainville RESPONDENT – Plaintiff JUDGMENT [ 1 ] By judgment dated 22 October 2021, the special clerk of the Court of Quebec, District of Terrebonne (Me Julie Rondeau), ordered the applicant to pay $7,466.23 to the respondent, with interest at the legal rate and the additional indemnity. [ 2 ] According to the Court of Quebec’s record, the notice of judgment is dated 28 October 2021.

Thus, pursuant to art. 360 C.C.P. , the notice of appeal (art. 352 C.C.P. ) and application for leave to appeal (art. 30, second para, sub-para. 1° C.C.P. ) should have been filed at the latest on Monday, 29 November 2021. [1] However, the notice of appeal and application for leave to appeal were not filed in due time, hence the application for leave to appeal after the expiry of the time limit which was filed by the applicant on 15 July 2022, according to our Court’s record. * * [ 3 ] Art. 363 C.C.P. , which allows the Court to authorize an appeal after the expiry of the applicable time limit, prescribes that: 363.

Les délais d’appel sont de rigueur et emportent déchéance du droit d’appel. 363. The time limits for appeal are strict time limits, and the right to appeal is forfeited on their expiry. Néanmoins, la Cour d’appel peut autoriser l’appel s’il ne s’est pas écoulé plus de six mois depuis le jugement et si elle estime que la

partie a des chances raisonnables de succès et qu’elle a, en outre, été en fait dans l’impossibilité d’agir plus tôt . Elle peut, même après l’écoulement du délai fixé, autoriser un appel incident si elle l’estime approprié. Nevertheless, the Court of Appeal 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.

Un juge d’appel peut aussi, sur demande, suspendre les délais d’appel dans le cas où le jugement porté en appel a réservé au demandeur le droit de réclamer des dommages-intérêts additionnels en réparation d’un préjudice corporel. Il le fait si des motifs impérieux commandent de réunir l’appel de ce jugement et celui portant sur la demande de dommages-intérêts additionnels; il détermine alors le temps et les conditions de la suspension. An appellate judge may, on an application, suspend the time limits for appeal if the judgment has reserved the plaintiff’s right to claim additional damages for bodily injury.

The judge suspends such time limits if there are compelling reasons for an appeal against the judgment and an appeal concerning the application for additional damages to be heard together; in such a case, the duration and terms of the suspension are determined by the judge. [Emphasis added] [ 4 ] Pursuant to the second paragraph of this provision, the applicant must demonstrate that the proposed appeal fulfils the following

cumulative conditions: ➢ not more than six months have elapsed since the judgment at stake; ➢ it was impossible in fact for the applicant to act earlier; and ➢ the proposed appeal has a reasonable chance of success. [ 5 ] In the present case, the first condition has not been met. Indeed, on the date that the application for leave to appeal was filed (15 July 2022), more than six months had elapsed since the special clerk’s judgment, which was rendered in October 2021.

This irremediably precludes the applicant's request and, as such, compels its dismissal. [ 6 ] The second condition has not been satisfied either, even if the applicant maintains that she only became aware of the judgment in June 2022, a situation which, as we will see below, results from her default to answer the originating application. [ 7 ] Finally, the grounds for appeal, as expressed by the applicant, do not fulfill the third condition, as they appear to have no reasonable chance of success in light of the file at hand and the explanations given at the hearing. [ 8 ] The special clerk’s judgment ordered the applicant to pay $7,466.23 to the respondent.

The value of the matter in appeal being less than $60,000 (art. 30 para. 2 C.C.P. ) , leave to appeal cannot be granted unless the requirements of art. 30 para. 3 C.C.P. are fulfilled, that is unless the proposed appeal “involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions” or raises the serious possibility of a grievous injustice.

In addition, proportionality (art. 18 C.C.P. ) dictates that this provision be interpreted and applied restrictively and that leave be granted with a certain frugality. [ 9 ] The grounds for appeal described in the present application for leave to appeal after the expiry of the time limit, however, do not raise any such questions. [ 10 ] The respondent’s originating application was duly served upon the applicant, as evidenced by the bailiff’s service report (which was not contested in accordance with arts. 2821 C.C.Q. and 261 C.C.P. ).

The applicant did not answer the originating application in any manner and was duly condemned by default without any further notice, pursuant to arts. 145 para. 2 and 180 C.C.P.

There is no error nor injustice in that manner of proceeding. [ 11 ] On the merits, the grounds of appeal set out in the application for leave to appeal after the expiry of the time limit are, on their face, without merit and doomed to failure. [ 12 ] Consequently, leave to appeal cannot be granted, a conclusion reinforced by the principle of proportionality, considering the limited amount at stake. * * [ 13 ] In answer to the application for leave to appeal after the expiry of the time limit, the respondent filed an application for dismissal of the appeal ( Requête en rejet d’appel ), pursuant to art. 365 C.C.P.

This application was unnecessary and, leave to appeal not being granted, it is also without object and, for that reason, will be dismissed. FOR THE ABOVE-MENTIONED REASONS, THE COURT: [ 14 ] DISMISSES the respondent’s Requête en rejet d’appel , without legal costs; [ 15 ] DISMISSES the applicant’s Application for leave to appeal after the expiry of time limit , with legal costs. MARIE-FRANCE BICH, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A. MIN KUI Unrepresented Mtre AUDREY GOSSELIN-LATOUR Dunton Rainville For the respondent Date of hearing: 19 September 2022