Fisch v. White, [1987] 2 SCR 535

Fisch v. White, [1987] 2 S.C.R. 535

Gerald Grant Fisch      Appellant

v.

Dame Jean Eleanor White                                                                Respondent

indexed as: fisch v. white

File No.: 19055.

1987: October 21; 1987: November 19.

Present: Beetz, Estey, Lamer, Wilson and Le Dain JJ.

on appeal from the court of appeal for quebec

                   Civil procedure ‑‑ Dismissal of appeal ‑‑ Appellant late in filing factum ‑‑ Judicial discretion ‑‑ Whether judicial discretion properly exercised ‑‑ Whether additional delay to serve and file factum in the Court of Appeal should be granted ‑‑ Code of Civil Procedure, art. 505.

                   Respondent moved for a dismissal of the appellant's appeal in the Court of Appeal for failure by the latter to file his factum within the fixed delay. Pursuant to art. 505 of the Code of Civil Procedure, a judge of the Court of Appeal granted the motion; hence this appeal.

                   Held: The appeal should be allowed.

                   The exercise of the judge's discretion in this unusual case was not reasonable having regard to all the circumstances and consequences.

                   The appellant should be given a peremptory delay of ten days from the date of this judgment to serve and file his factum in the Court of Appeal.

                   APPEAL from a judgment of the Quebec Court of Appeal¹ allowing the respondent's motion to set aside the appeal for failure by appellant to file factum within the fixed delay. Appeal allowed.

¹ Que. C.A., No. 500‑09‑00638‑840, September 6, 1984.

                   Serge Segal, for the appellant.

                   Julius H. Grey, for the respondent.

                   The following is the judgment delivered by

1.                The Court‑‑We are all of the view that the exercise of the judge's discretion in this unusual case was not reasonable having regard to all the circumstances and consequences.

2.                The appeal is allowed, the judgment of the Court of Appeal dismissing the appellant's appeal is set aside, the appellant is given a peremptory delay of ten days from the date of this judgment to serve and file his factum in the Court of Appeal, failing which his appeal to the Court of Appeal will be automatically quashed, and the case is referred to the Court of Appeal to be heard on its merits.

3.                There will be no order as to costs.

                   Appeal allowed.

                   Solicitors for the appellant: Segal, Ovadia, Sauvageau, Zito, Montréal.

                   Solicitors for the respondent: Grey & Casgrain, Montréal.