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2021/05/10 Articles

COVID-19 and the Suspension of Appeal Time

The suspension of time limits in civil matters pursuant to Order 2020-4251 gave rise to a number of questions, particularly regarding the computation of time limits and the nature of the time limits that were suspended. Although the suspension was lifted on September 1, 2020 by Order 2020-4303, it would be illusory to believe that these questions have disappeared. The Court of Appeal recently rendered a noteworthy decision on this matter in connection with appeal time limits.

Specifically, in a December 18, 2020 decision,[1] the Court of Appeal addressed the merits of a motion to dismiss an appeal, to declare the appeal abusive and to declare the appellants quarrelsome litigants.

Briefly, the appellants appealed against a judgment rendered on August 14, 2020 by the Superior Court, which dismissed their originating application for a permanent injunction seeking the cessation of construction of a structure and its demolition. The appellants had sought to obtain the demolition of an extension built by their neighbour, the respondent. In essence, the trial judge found that the conventional servitudes relied on by the appellants did not contain the terms of a non-construction servitude and did not prevent the respondent from building on its lot. Moreover, the judge concluded that the 1983 deed of servitude expressly reserved this right to build in favour of the servient lot.

On September 25, 2020, the appellants filed their notice of appeal in which they alleged errors of law committed by the trial judge in his interpretation of the deeds of servitude as well as in his refusal to consider the conduct of the parties. They also argued that the judge had erred in fact and in law by failing to analyze the file from the standpoint of abuse of rights, given the respondent’s actions to reduce the exercise of the servitude.

On October 9, 2020, the respondent filed a motion to dismiss the appeal, to declare the appeal abusive and to declare the appellants quarrelsome litigants. The respondent invoked two grounds in support of its motion:

  1. The appeal was initiated too late because the suspension of civil procedure time limits decreed by Order 2020-4251 dated March 15, 2020 does not apply to applications for an injunction such as that of the appellants; and
  2. The proposed appeal was destined to fail.

With respect to the declaration that the appeal was abusive and the appellants were quarrelsome litigants, the respondent relied on the fact that appellant Whitfield had filed several court proceedings in Ontario against her brother and her former employer. In addition, the respondent sought $7,500 as reimbursement of his lawyers’ fees and $10,000 in punitive damages for the recklessness of the appeal.

Contrary to the respondent’s allegations, the Court of Appeal rejected the argument based on the failure to satisfy the time limit for an appeal. The Court of Appeal agreed that Order 2020-4251 suspended the civil procedure time limits except for cases deemed urgent by the courts. It also agreed that applications for an injunction are among the proceedings that the Superior Court deemed to be urgent or to have priority for purposes of ensuring the continuity of its services. However, this did not have the effect of precluding the suspension of appeal time limits for such recourses.

[translation] 

[6] The suspension of appeal time limits pursuant to Order 2020-4251 dated March 15, 2020 cannot therefore be set aside because an “application for an injunction” is on the list of matters that the Superior Court deemed to be urgent or to have priority. In fact, similarly in Ewert c. Lalande, 2020 QCCA 1141, the Court concluded that the appeal time limits had been suspended by Order 2020-4251 dated March 15, 2020, in the case of a habeas corpus proceeding in a civil matter, a matter identified as one deemed urgent on the Superior Court’s aforementioned list 

[7] In fact, the list of matters the Superior Court considers to be urgent or to have priority for purposes of the continuity of its services during the Covid-19 pandemic only covers proceedings before the Superior Court. The Court of Appeal is not bound by this list and does not have to rule on its effect with respect to the Superior Court time limits.[2] (Emphasis added).

The Court of Appeal clearly stated that it had not drawn up a list of matters or cases deemed urgent for purposes of lifting the suspension of procedural time limits decreed by the Chief Justice of Québec and the Minister of Justice. Thus, each application is to be analyzed according to the circumstances of each case.[3] Moreover, the Court of Appeal added that, in fact, no notice of appeal had been refused on the ground that the appeal time limits had not been suspended pursuant to Order 2020-4251.

With respect to the argument that the appellants’ appeal was doomed to fail, the Court of Appeal acknowledged that the appellants’ grounds of appeal presented some challenges. Nonetheless, it refused to dismiss the appeal for this reason at a preliminary stage.

The Court of Appeal also refused to declare the appeal abusive or the appellants quarrelsome litigants. For this reason, the Court of Appeal dismissed the application for the reimbursement of the lawyers’ fees and the awarding of punitive damages.

In closing, the Insurance Fund’s prevention team is aware of the many questions raised by the suspension of time limits pursuant to Order 2020-4251 and has written some articles on the subject. We therefore invite you to read the following articles:

 

[1] Whitfield v. Arlyn Capital inc., 2020 QCCA 1823.

[2] Id., paras. 6 and 7.

[3]On this point, the Court of Appeal referred litigants and lawyers to its news releases dated March 16 and March 24, 2020.