R. v. Irving (K.C.) Ltd. et al., [1976] 2 SCR 366

Supreme Court of Canada

R. v. Irving (K.C.) Ltd. et al., [1976] 2 S.C.R. 366

Date: 1975-11-13

Her Majesty the Queen Appellant;

and

K.C. Irving, Limited, New Brunswick Publishing Company Limited, Moncton Publishing Company Limited, and University Press of New Brunswick

and

K.C. Irving, Limited Respondents.

1975: October 7; 1975: November 13.

Present: Laskin C.J. and Judson and Ritchie JJ.

MOTION TO EXTEND THE TIME FOR BRINGING AN APPLICATION FOR LEAVE TO APPEAL

MOTION FOR LEAVE TO APPEAL

Appeal—Extension of time—Supreme Court of Canada—Time within which an appeal may be brought—Jurisdiction to extend time where application is made outwith the prescribed period—Criminal Code, R.S.C. 1970, c. C-34, ss. 618(1)(b), 621(1)(b).

The Crown sought leave to appeal on a number of questions of law and since its application for leave was not brought on within the twenty one days mentioned in s. 621(1)(b) of the Criminal Code concurrently sought an extension of time under the same section. The Court raised suo motu the question whether it had jurisdiction to extend the time where the application for extension is not made within the prescribed twenty one day period within which leave must be sought.

Held: Leave to extend the time should be granted, as should leave to appeal on specific questions of law.

Rule 108 of the Supreme Court Rules provides for extending or abridging time requirements notwithstanding the expiration of the time appointed or allowed. Applying this approach to assessing the language of ss. 618(1)(b) and 621(1)(b) the Court or a Judge has jurisdiction to extend the time notwithstanding that the motion for extension is not made within the prescribed period. Leave will be refused for unreasonable delay and an applicant seeking concurrently an extension of time and leave to appeal before the Court (instead of first seeking an extension from a Judge in Chambers) may run a risk of refusal of the extension if there has been unreasonable delay or intervening factors of prejudice to the respondents.

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Beaver v. The Queen, [1957] S.C.R. 119; Cotroni v. The Queen, [1961] S.C.R. 335; Boyer v. The Queen, [1968] S.C.R. 962; R. v. Bawa Singh Badall (1974), 17 C.C.C.(2d) 420; Gilbert v. The King (1907), 38 S.C.R. 207; Massicotte v. Boutin, [1969] S.C.R. 818; Kumpas v. Kumpas, [1970] S.C.R. 438 referred to.

MOTION to extend the time for bringing an application for leave to appeal and MOTION for leave to appeal. Leave to extend the time granted, leave to appeal granted on the following questions of law:

(1) Did the Court of Appeal of New Brunswick err in its interpretation of the words “to the detriment or against the interest of the public, whether consumers, producers or others…” as those words are used in the definition of “merger” and “monopoly” in the Combines Investigation Act, R.S.C. 1970, c. C-23 and in the definition of “combine” in predecessor Acts?

(2) Did the Court of Appeal of New Brunswick err in holding that (a) no presumption arose of detriment or likely detriment to the public when competition has been prevented or lessened unduly and, (b) even if there was such a presumption there was evidence to rebut it?

(3) Did the Court of Appeal of New Brunswick err in its appreciation of the meaning of “competition” as it related to the facts of the present case?

W.L. Hoyt, Q.C., for the appellant.

J.J. Robinette, Q.C., for the respondents.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—On June 4, 1975, the New Brunswick Court of Appeal set aside the convictions of the various accused on two indictments and directed acquittals on all charges contained therein. The Crown now seeks leave to appeal on a number of questions of law and, since its application for leave was not brought on within the twenty-one days mentioned in s. 621(1)(b) of the Criminal Code, it seeks concurrently an extension of time to enable its application for leave to be

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heard. That extension is sought under the provision for extension of time also contained in s. 621(1)(b). The entire subsection reads as follows:

621. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 603 or 604 or dismisses an appeal taken pursuant to paragraph 605(1)(a) or subsection 605(3), the Attorney General may appeal to the Supreme Court of Canada

…

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada within twenty-one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow.

The Court raised suo motu the question whether it has jurisdiction to extend the time if, as is the case here, the application for extension is not made within the prescribed twenty-one day period within which leave must be sought. The point does not appear to have been expressly determined in any reported judgment of this Court, nor have I been able to discover any unreported judgment thereon. Written submissions on the point were invited from and supplied by counsel for the applicant and for the respondents.

A contrast exists between the language of s. 621(1)(b) (and indeed the similar language of s. 618(1)(b) concerning applications by an accused for leave to appeal a conviction) and that of s. 622, referable to the time for service of the notice of appeal. The latter provides expressly for extension of the prescribed time before or after its expiration. Similarly, the time provision for notices of appeal or of applications for leave to provincial Courts of appeal may, under the express terms of s. 607(2) of the Criminal Code, be extended «at any time».

In Beaver v. The Queen[1], an application for leave to appeal from judgments of conviction given on October 17, 1956 and October 24, 1956 did not come on for hearing until February 18, 1957, long after the expiry of the prescribed twenty-one day

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period under the then s. 597(1)(b) of the Criminal Code, the predecessor of the present s. 618(1)(b). The power to extend the time was apparently unchallenged, and the Court concerned itself with the question whether special reasons existed. The situation was the same in Cotroni v. The Queen[2], and in Boyer v. The Queen[3].

There are other unreported cases in which leave to appeal and an extension of time were sought beyond the twenty-one day period prescribed by s. 621(1)(b) and, similarly, no question of jurisdiction was raised. A recent instance was R. v. Bawa Singh Badall[4], reported on the merits. There the judgment of the provincial appellate Court was delivered on February 20, 1974 and the motion to extend the time and for leave was not brought by the Crown until March 18, 1974.

Sections 618(1)(b) and 621(1)(b) of the Criminal Code are susceptible of a stringent construction which I am loathe to impose, especially when there is reserved to the Court the question whether special reasons exist to warrant an extension of time. This provides, in my opinion, an adequate control over abuse of process through unjustified delays in expediting the termination of criminal proceedings. A similar reluctance to apply a strict construction was displayed by this Court in Gilbert v. The King[5] where under the then provision for service of a notice of appeal “within fifteen days… or within such further time as may be allowed…” (s. 1024 of the Criminal Code, R.S.C. 1906, c. 146), it was held that an application could be brought to extend the time after the expiration of the fifteen day period.

By contrast, s. 18 of the Divorce Act, R.S.C. 1970, c. D-8, in providing for an appeal to this Court by leave granted within thirty days from the judgment sought to be appealed, required that any extension of time for seeking leave must be sought before the expiration of the thirty day period. This

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provision is not susceptible of a construction that would support an extension of time sought after the thirty day period: see Massicotte v. Boutin[6], Kumpas v. Kumpas[7].

Under rule 108 of this Court’s Rules it is provided generally that time requirements may be abridged or enlarged upon such terms, if any, as the justice of the case may require notwithstanding that application is not made until after the expiration of the time appointed or allowed. I prefer to adopt this approach in assessing the language of ss. 618(1)(b), and 621(1)(b) and, in the result, I would hold that the Court or a Judge has jurisdiction to extend the time for applying for leave to appeal, notwithstanding that the motion for extension is not made within the prescribed twenty-one day period following the judgment sought to be appealed.

It was contended by the respondents herein that even though there be power to extend the time it should not be exercised here because no special reasons were shown to support an extension. There is no question of the bona fides of the Crown in seeking an extension of time and concurrently leave to appeal. On June 13, 1975, within ten days after the judgment sought to be appealed counsel for the Crown wrote to counsel for the respondents advising him of the Crown’s intention to appeal and that the application would be made on October 7, 1975, the first motion day in the fall term of the Court. There was only one motion day left in June following the judgment sought to be appealed and before the Long Vacation and that was June 16. Counsel for the Crown points out that it would have been necessary to have the material for the application prepared by June 10, 1975 if the motion was to proceed on June 16 and this would have been difficult having regard to the nature of the case. In his reply on June 23, 1975 to Crown counsel’s letter of June 10, counsel for the respondents indicated he would object to an extension of time and the written submission filed by the respondents notes that an extension of time

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could have easily been sought from a Judge in Chambers and it was not so sought.

I do not think this is a sufficient ground to deny an extension of time, especially when Crown counsel served notice of his application for an extension of time and for leave on September 2, 1975, the first juridical day following the Long Vacation. Although an applicant who applies for an extension of time and concurrently for leave before the Court (instead of first seeking an extension from a Judge in Chambers) may run a risk of refusal of an extension if there has been unreasonable delay or intervening factors of prejudice to the respondents, the combination of the two applications is not in itself improper. There is no unreasonable delay here, nor is there any suggestion of prejudice to the respondents. It is true that in Cotroni v. The Queen, supra, leave to appeal was refused for unreasonable delay where the judgment sought to be appealed was delivered on January 9, 1961, and the motion for leave was not filed until March 9, 1961. The obvious contrast is that here there was prompt notification of intention to appeal, but an examination of the file in the Cotroni case reveals that there was an earlier motion for leave filed on January 30, 1961, which did not proceed for reasons not disclosed by the file. I am not prepared to regard that case as one that should govern here.

I am, accordingly, of the opinion that leave to extend the time should be granted and, on the merits, I am, of the opinion that leave to appeal should go on the following questions of law:

(1) Did the Court of Appeal of New Brunswick err in its interpretation of the words “to the detriment or against the interest of the public, whether consumers, producers or others…” as those words are used in the definition of “merger” and “monopoly” in the Combines Investigation Act, R.S.C. 1970, c. C-23 and in the definition of “combine” in predecessor Acts?

(2) Did the Court of Appeal of New Brunswick err in holding that (a) no presumption arose of detriment or likely detriment to the public when

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competition has been prevented or lessened unduly and, (b) even if there was such a presumption there was evidence to rebut it?

(3) Did the Court of Appeal of New Brunswick err in its appreciation of the meaning of “competition” as it related to the facts of the present case?

Motion to extend the time granted, motion for leave allowed on specific questions of law.

Solicitor for the appellant: D.S. Thorson, Ottawa.

Solicitors for the respondents: McCarthy & McCarthy, Toronto.