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Appeal—Leave to appeal granted by Supreme Court of Canada—Appeal not brought within 30 days as required by Rule 56(6)—Motion for extension of time under Rule 98—No reasonable excuse for delay—Extension nevertheless justified—No serious prejudice to other party—Power to extend after expiry of prescribed time—Supreme Court Act, R.S.C. 1970, c. S-19, ss. 41(2), (4).

[Cité de Pont Viau v. Gauthier Mfg., Ltd., [1978] 2 S.C.R. 516; Massicotte v. Boutin, [1969] S.C.R. 818; Banner v. Johnston (1871), L.R. 5 H.L. 157; The Queen v. K.C. Irving Ltd., [1976] 2 S.C.R. 366, referred to]

MOTION for an extension of time within which appeal may be brought. Extension of time allowed.

D. Woods, for the applicant.

R. Houston, for the respondents, the Canadian Union of Public Employees Local Union 1975 and the Labour Relations Board.

The following judgment was delivered by

PIGEON J.—Leave to appeal from the judgment of the Court of Appeal for Saskatchewan dated October 13, 1977, was granted by oral judgment of this Court on December 5, 1977. The appeal was not brought within thirty days as required by Rule 56(6). A motion is now being made for an extension of time under Rule 98.

[Page 831]

In his affidavit in support of the motion, a solicitor for the appellant who represented it on the application for leave to appeal, states that it was his “opinion” that once leave was granted appellant’s agents would serve a notice of appeal. However, nothing shows that he did inform the agents of the judgment granting leave rendered in his presence, or that instructions were given them to bring the appeal, or that it is usual for agents to do so without specific instructions. Thus there is nothing before me in the nature of a reasonable excuse for the delay.

Nevertheless, I feel that an extension is justified under the circumstances by reason of the principle that, if it can be done without serious prejudice to the other party, relief should be granted in order to prevent serious prejudice to a litigant. This is, as it appears to me, the principle on which this Court, overruling the Quebec Court of Appeal, granted an extension of time for bringing an appeal to that Court in Cité de Pont Viau v. Gauthier Mfg., Ltd. (February 7, 1978, not yet reported[1]). In the present case, the appeal, even if brought in time, would not have been ready for inscription for this term. Any appreciable prejudice can therefore be avoided by granting an extension subject to the condition that the case be made ready for inscription for the April term.

There is further difficulty in that it is not clear that Rule 56(6), which came into force April 1, 1976, does not limit the general power to extend time granted by Rule 98. It reads:

(6) When leave to appeal is granted by the Court, the appeal shall be brought within thirty days from the pronouncement of the judgment granting leave or within such time as may be allowed within that time by the Court. If the appeal is not so brought, it shall be deemed abandoned.

Consideration must also be given to s. 41(4) of the Supreme Court Act which is in the following terms:

(4) Whenever the Supreme Court has granted leave to appeal, the Supreme Court or a judge may, notwithstanding anything in this Act, extend the time within which the appeal may be allowed.

[Page 832]

The reason for which this enactment does not dispel any doubt as to the power to extend time after the expiry of the time limited by the Rules, is that it does not include the following words which are found in s. 41(2), namely: “either before or after the expiry of the thirty days”. Are those words in s. 41(2), as similar words in s. 65(1), nothing but useless verbiage, or is it to be deduced from their omission in s. 41(4) that the latter provision is meant to exclude any power to extend after the expiry of the prescribed time? The result would be that thereafter there is no power to extend as is the case under s. 18(2) of the Divorce Act where the words “before the expiration of those thirty days” were held to bar any power to extend thereafter (Massicotte v. Boutin[2]).

There is undoubtedly a major difference between s. 18(2) of the Divorce Act and s. 41(4) of the Supreme Court Act. In the former, there are words which are clearly meant to exclude any power to extend after the time fixed has expired. In the latter, there is a power to extend which is not limited as to the time for its exercise. In Banner v. Johnston[3], the Lord Chancellor held (at p. 170) that a similarly worded power of extension found in the U.K. Companies Act should not “be taken to mean that the application must be made before the original time has elapsed, because the time having elapsed there is nothing remaining to extend”. He said that such construction was possible for rules in Chancery from which the Court could depart in a proper case not for a statutory enactment.

In The Queen v. K.C. Irving Ltd.[4] this Court, when granting leave to appeal in a case governed by the Criminal Code, allowed at the same time an extension of time although, as in the present case, application for such extension was not made within the time limited for granting leave. In that case also, the provision for an extension of time, s. 621(1)(b), merely referred to “such extended time

[Page 833]

as the Supreme Court of Canada or a judge thereof may, for special reasons, allow”. Although in the next following s. 622 the Code specifies “before or after the expiration of that period”, the Court declined to infer that s. 621(1)(b) authorizes an extension only by an order made within the prescribed time. It was held that the mere absence of the explicit “before or after” provision did not have the effect of the rigid provision of s. 18(2) of the Divorce Act.

For these reasons, the time for bringing the appeal is extended for fifteen days from this day, on condition that the appellant do whatever is necessary to inscribe the case for the April term; it will also have to pay the costs of this application in any event of the case.

Judgment accordingly.

Solicitors for the applicant: McKercher, McKercher, Stack, Korchin & Lang, Saskatoon.

Solicitors for the Canadian Union of Public Employees Local Union 1975: Halyk, Priel, Stevenson & Hood, Saskatoon.

Solicitors for the Administrative and Supervisory Personnel Association of the University of Saskatchewan: MacDermid, Wright, Dickson, Molloy & Biss, Saskatoon.

Solicitors for the Labour Relations Board: Graf & Zarzeczny, Regina.

 



[1] Since reported [1978] 2 S.C.R. 516.

[2] [1969] S.C.R. 818.

[3] (1871), L.R. 5 H.L. 157.

[4] [1976] 2 S.C.R. 366.

 

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