Neveu v. Côté Estate (Motion), [1989] 2 SCR 342

Neveu v. Côté Estate (Motion), [1989] 2 S.C.R. 342

Danielle Neveu, in her capacity as curator to

Gisèle Bordeleau  (Principal Plaintiff)

and

Gisèle Bordeleau  (Plaintiff in continuance of

suit)                                                                                                     Applicant

v.

Heirs of the Late Gaston Côté  (Principal

Defendants and Plaintiffs in Warranty)

and

Victoria Insurance Company of Canada

(Defendant in Warranty)                                                                     Respondent

and

E. W. Tinmouth, in his official capacity

(Defendant in Warranty)                                                                     Mis en cause

Indexed as:  Neveu v. Côté Estate (Motion)

File No.:  21414.

1989:  April 11.

Present:  Gonthier J.

motion for extension of time

                   Practice ‑‑ Motion for extension of time for filing application for leave to appeal ‑‑ Delay due to various factors including negotiations for settlement ‑‑ Counsel for principal defendants informed of intention to appeal if negotiations unsuccessful ‑‑ Case dependant on leave from Court and extension of time sought only so application for leave could be filed ‑‑ Applicant should not be deprived of right to refer the question to Supreme Court of Canada solely because of additional delay ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, ss. 58 , 59(1) .

Statutes and Regulations Cited

Supreme Court Act , R.S.C., 1985, c. S‑26 , ss. 58 , 59(1) .

                   MOTION for extension of time to file an application for leave to appeal from a judgment of the Quebec Court of Appeal, [1989] R.R.A. 226, allowing an appeal from a judgment of Lesyk J.  Motion granted.

                   Claude Tellier, Q.C., for the applicant.

                   Mark Peacock, for the respondent Victoria Insurance Company of Canada.

                   André Legrand, for the mis en cause E. W. Tinmouth.

                   The following are the reasons for the order delivered by

                   Gonthier J. ‑‑ The applicant filed an application, pursuant to s. 59(1) (formerly 65(1)) of the Supreme Court Act , R.S.C., 1985, c. S‑26 , to extend to April 20, 1989 the sixty‑day deadline imposed by s. 58 (formerly 64) of that Act for filing an application for leave to appeal from a judgment of the Quebec Court of Appeal rendered on January 19, 1989.

                   This application, as to which the principal defendants relied on the Court's discretion, was opposed by the defendants in warranty chiefly on the ground that the applicant did not indicate her intention to file an appeal within the sixty‑day deadline.

                   I consider that this is a special case in which, as appears from the affidavit, the delay was due to negotiations for a settlement undertaken by counsel responsible for conducting the case, by a series of events set out in the affidavit and by the applicant's condition, alleged in paragraph 10 of the affidavit.

                   I do not think that the criterion of whether an intention to appeal was indicated within the prescribed deadlines, though important, is the only one limiting the discretion conferred on a judge of this Court by s. 59 (formerly 65) of the Act.  In any case, having in mind in particular the letter to counsel for the principal defendants from counsel for the applicant on March 10, 1989, in which he mentioned his intention to appeal to this Court if the negotiations were unsuccessful, the defendants in warranty are not really in a position to claim or to allege injury in the circumstances, since the additional time involved is about a month.  Finally, the instant case depends on obtaining leave from this Court and the extension of time sought here is only so that an application for leave can be filed.  I think, in view of the matters involved, that the applicant should not be deprived of the right to refer the question to this Court solely because of the additional delay that occurred.

                   The application is therefore allowed and the deadline for filing the application for leave to appeal is extended to April 20, 1989, with costs to follow.

                   As regards the application for security made by the defendants in warranty, I do not think there is any reason to depart from the usual rule that security should not be over $500 and should only be required once leave to appeal has been granted.  This application is dismissed.

                   Motion granted.

                   Solicitors for the applicant:  Desjardins, Ducharme, Montréal.

                   Solicitors for the respondent Heirs of the late Gaston Côté:  Guy & Gilbert, Montréal.

                   Solicitors for the respondent Victoria Insurance Company of Canada:  Gasco, Linteau & Grignon, Montréal.

                   Solicitors for the mis en cause E. W. Tinmouth:  Ogilvy, Renault, Montréal.