Does the Act of Denying a Written Defence Create a Serious Prejudice that Requires that Leave to Appeal be Granted in the Pursuit of Justice?
Par Sarah D. Pinsonnault, avocate
By Sarah D. Pinsonnault
Article 175.2 of the Code of
Civil Procedure (C.C.P.) establishes a series of subject matters that
prescribe oral defences. In these instances, should a party wish to opt for a
defence in writing and failing agreement between the parties, he must address
the court pursuant to article 175.3 C.C.P. The judge seized with this motion
has a great deal of discretion in this matter since it forms part of case
management. If a party seeks leave to appeal this decision, it should be noted
that while this judgment does fall under article 29 C.C.P., as it orders that
something be done “which cannot be remedied by the final judgment », the
condition set forth under article 511 C.C.P. must still be met, in that the “the
pursuit of justice requires that leave be granted”. In Schluter Systems (Canada) Inc. c. Gelston, 2015 QCCA 335, the Petitioner (Defendant) is seeking leave
to appeal an interlocutory judgment that dismissed his motion to implement a
timetable and to authorize a written defence. The Court of Appeal, presided by
the Honourable Justice Geneviève Marcotte, J.A., sitting alone, however
dismissed his motion for leave to appeal on the grounds that he failed to
demonstrate how this decision created a serious prejudice.
In his motion for leave to appeal, the Petitioner argued:
… [T]hat the magnitude of the amount claimed, the complexity and number of
allegations and considerations of proportionality and fairness warrant that a
written defence be ordered pursuant article 175.3 C.C.P. He further contends
that the judgment falls within article 29 C.C.P. as it « orders that
something be done which cannot be remedied by final judgment. »”
Marcotte, J.A., began her analysis of this point by referring to the
overriding principle that emerged from a review of the applicable case law, in that
“ Judges of this Court have generally found that denying a written defence
does not create a serious prejudice”.
This was followed by examples of where
leave to appeal was denied in such instances. Ultimately, these examples demonstrate how a party is not deprived of any
rights when it is ordered proceed orally instead of filing a written defence.
Its fundamental rights are still preserved and, as a result, there is no reason
for the Court of Appeal to intervene in the management of the first instance proceedings.
Marcotte, J.A. then went on to conclude as follows:
“ In the case at hand, the petitioner has failed to demonstrate that
the interlocutory judgment denying him permission to file a written defence
creates a serious prejudice. The petitioner does not have an absolute right to
file a written defence and such written defence is not required for a fair and
equitable trial. Also, while the petitioner argues that it is prevented from
filing a cross-claim on the basis of the abusive nature of the Plaintiff’s
proceedings, there is nothing precluding it from presenting a Motion to have
the claim declared abusive under article 54.1 C.C.P., even though the defence
is an oral one.
 Moreover, given the trial judge’s broad discretion in matters of
case management such as these, in keeping with the principles of articles 4.1
and 4.2 C.C.P., the Court of Appeal will only intervene where there is a
manifest error, a denial of justice or other exceptional circumstances, none of
which have been demonstrated here. The petitioner has therefore failed to
convince me that the pursuit of justice requires that leave to appeal be
granted with respect to the second motion.
FOR THESE REASONS, THE
 DISMISSES the amended
motions for leave to appeal, with costs.”
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