Supreme Court of Canada
In re North Shore Trading Co. / Providence Washington Assurance Co. v. Gagnon & Cloutier, Authorized Trustees, [1928] S.C.R. 180
Date: 1928-02-14
In Re North Shore Trading Co. (Insolvent)
Providence Washington Assurance Co. (Applicant) v. Gagnon & Cloutier, Authorized Trustees (Respondents).
1928: February 14.
Present: Mignault J. in chambers.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Bankruptcy—Appeal—Application for leave to appeal to Supreme Court of Canada—Application not within time specified by Bankruptcy Rule 72—Insufficient period of notice—Application dismissed without prejudice to right to obtain extension of time and renew application.
Where an application to a judge of this Court for leave to appeal from a judgment of a provincial court of appeal in a matter arising under the Bankruptcy Act is not made within the 30 days specified by Bankruptcy Rule 72, or where the specified 14 days notice has not been given to the adverse party, the application must be dismissed; the judge has no power to extend the time (Boivin v. Larue, [1925] S.C.R. 275; In re Hudson Fashion Shoppe Ltd., [1926] s.C.R. 26); but the order of dismissal may reserve any right of the applicant to obtain from the court having jurisdiction to grant it (See Bankruptcy Act, ss. 68 (5), 2 (l) an extension of time for making the application or for the service of a notice thereof, and to renew the application in the event of such extension being granted (Order as made in In re Hudson Fashion Shoppe Ltd. followed; see 7 C.B.R. 80).
Remarks on the desirability of amendment of Rule 72 so as to empower a judge of this Court to extend the time for applying for leave to appeal either before or after its expiration.
APPLICATION for leave to appeal from the judgment of the Court of King’s Bench, Appeal Side, Province of Quebec, in a matter arising under the Bankruptcy Act.
S. M. Clark for the applicant.
H. Bernier for the respondent.
Mignault J.—In this case, application on behalf of the Providence Washington Assurance Co. was to-day made to me for leave to appeal from the judgment of the Quebec Court of King’s Bench, in a matter arising under the Bankruptcy Act. This judgment was pronounced on the 14th of January, so that this application is made on the thirty-first day after the judgment, and therefore is not within the time specified by Bankruptcy rule 72. Moreover, fourteen days notice of the application was not given
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to the adverse party. I have no power to extend the time (Boivin v. Larue; In re Hudson Fashion Shoppe, Ltd.) and must dismiss the application.
When the Boivin Case was before me, no reference was made by counsel to s. 68, subs. 5, of the Bankruptcy Act, which empowers the court (which means the court which is invested with original jurisdiction in bankruptcy under the Act: s. 2, subs. l), where by the Act or by the General Rules, the time for doing any act or thing is limited, to extend the time either before or after the expiration thereof, upon such terms, if any, as the court may think fit to impose.
My attention has been called to an order made by Mr. Justice Fisher, sitting in bankruptcy, in In re Hudson Fashion Shoppe Ltd. (the same case in which an application for leave to appeal was made to the Chief Justice of this Court, and dismissed because fourteen days notice of the application had not been given) extending the time for applying to a judge of this court for leave to appeal. Mr. Justice Fisher states that my Lord, the Chief Justice, dismissed the application for leave made to him, without prejudice
to the right, if any, of the applicant to obtain an extension of time for the making of such application, or for the service of a notice thereof from the Court having jurisdiction to grant such extension, and without prejudice to the right of the said applicant to renew the said application to the Supreme Court of Canada for leave to appeal from the judgment of the Appellate Division of the Supreme Court of Ontario, in the event of such extension being granted by the Court aforesaid.
I have decided to follow the decision of the Chief Justice, and to insert this reservation in my order of dismissal of the application for leave to appeal from the judgment of the Court of King’s Bench.
I must say, however, that I think General Rule 72 should be amended so as to give a judge of this Court the power to extend the time for applying for leave to appeal, either before or after its expiration. It seems incongruous, and it adds to the costs as well as delays the proceedings, to oblige an applicant to go back to the trial court to obtain
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an extension of the time specified by rule 72. I may add that rule 68, governing appeals to the appeal court, gives a like power to a judge of the court of appeal.
The applicant must pay the costs of this application.
Application dismissed.
Solicitors for the applicant: Savard & Savard.
Solicitors for the respondents: Bernier & De Billy.
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