A-213-73
Yves Gastebled (Appellant) (Plaintiff)
v.
Joseph Stuyck and Paul Malhame (Respondents)
(Defendants)
Court of Appeal, Jackett C.J., Thurlow J. and
Choquette D.J.—Ottawa, May 24, 1974.
Practice and procedure—Reference for assessment of dam-
ages—Decision of referee affirmed by Trial Division—Juris-
diction in Court of Appeal to hear appeal—Federal Court
Act, s. 27—Rule 324.
Pursuant to a judgment of the Trial Division, a referee
assessed damages. An appeal from his decision was dis
missed by the Trial Division. On further appeal to the Court
of Appeal, a Rule 324 application to quash was made, on the
ground that no appeal lay.
Held, dismissing the application, section 27(1) conferred a
right of appeal from every judgment of the Trial Division.
Whether a judgment is interlocutory or final is of impor
tance only for purposes of section 27(2), which fixes the
time for bringing an appeal.
MOTION to quash appeal.
COUNSEL:
Pierre Lamontagne for appellant.
Robert Loulou for respondents.
SOLICITORS:
Laing, Weldon, Courtois, Clarkson, Par
sons, Gonthier & Tetrault, Montreal, for
appellant.
Robert Loulou, Montreal, for respondents.
JACKErr CJ.—This is an application under
Rule 324 to quash an appeal to this Court from
a decision of the Trial Division dismissing an
appeal from a decision of a referee by which
damages awarded by an earlier decision of the
Trial Division were assessed.
The application to quash is based on the
ground that there is no appeal to this Court from
a decision of the Trial Division on an appeal
from a referee.
Appeals to this Court from the Trial Division
are governed by section 27 of the Federal Court
Act, which reads in part as follows:
27. (1) An appeal lies to the Federal Court of Appeal
from any
(a) final judgment,
(b) judgment on a question of law determined before trial,
or
(e) interlocutory judgment,
of the Trial Division.
(2) An appeal under this section shall be brought by filing
a notice of appeal in the Registry of the Court,
(a) in the case of an interlocutory judgment, within ten
days, and
(b) in the case of any other judgment within thirty days
(in the calculation of which July and August shall be
excluded),
from the pronouncement of the judgment appealed from or
within such further time as the Trial Division may, either
before or after the expiry of those ten or thirty days, as the
case may be, fix or allow.
(4) For the purposes of this section a final judgment
includes a judgment that determines a substantive right
except as to some question to be determined by a referee
pursuant to the judgment.
In my view, section 27(1) confers a right of
appeal from every judgment of the Trial Divi
sion. Whether or not a judgment is interlocutory
or final is of importance only for the purposes
of section 27(2) which fixes the time for bring
ing an appeal. Section 27(4) contains a rule that
is of importance in applying section 27(2).
In my view, therefore, this appeal cannot be
quashed on the ground that there was no right
of appeal.
If the application had been made to quash on
the ground that the judgment appealed from was
interlocutory and the appeal was, therefore,
brought out of time, the appellant would have
had an opportunity to ask that a further time be
fixed under section 27(2). In that event, it would
have been necessary to decide whether the deci
'sion of the referee in this case was a "final
judgment". In my view, that question does not
require to be decided on this appeal.
* * *
THURLOW J.—I concur.
* * *
CHOQUETTE D.J.—I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.