Case information

Civil procedure — Intervention — Representation by counsel — Forced surrender — Taking in payment — Sale under judicial authority — Whether Court of Appeal erred by upholding judgment rendered in violation of art. 192 C.C.P., thus compromising rights of unrepresented party — Whether right of party to choose their legal representative can be limited by strict interpretation of procedural formalities, even though opposing parties were informed of presence of new lawyer — Whether party can be penalized for omission of pleading that was within responsibility of their lawyer and did not depend on their own diligence — Whether rule prohibiting any judicial decision before formal notice to unrepresented party must be applied strictly to ensure protection of fundamental rights with respect to legal representation.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

An application for forced surrender and taking in payment was instituted. The applicant, Exact Capital inc. intervened to force, under art. 2779 of the Civil Code of Québec, the sale under judicial authority. In a related proceeding in the Quebec Superior Court, a judge found that there was a failure to reimburse the amount agreed upon, allowed the application for forced surrender and taking in payment and declared the judgment as a title of ownership in favour of Placements Fraine inc. The court was again seized with an application for dismissal of the intervention for aggressive purposes, for a declaration of abuse of procedure and for homologation of a transaction.

Davis J. found that Exact Capital inc. (then third person intervenor) did not comply with the requirements of art. 2779 C.C.Q. and failed to meet the time limit. He also found that Exact Capital inc. failed to answer the notice to appoint a new lawyer and that it did not comply with the orders made. He dismissed and declared abusive the intervention of Exact Capital inc. and allowed the originating application for forced surrender and taking in payment. The Court of Appeal found that Exact Capital inc.’s arguments did not justify letting the appeal proceed, because they were clearly unfounded. While Exact Capital inc.’s second lawyer represented it for the purposes of a management hearing, she did not file any representation statement in the record. The appeal was therefore dismissed.