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“If at first you don’t succeed…”

“If at first you don’t succeed…”

The Court of Appeal serves among other things as a court of correction. But pleaders are continuously reminded that this does not translate into litigants getting a free “second kick at the can”, and with good reason. The rolls of our courts are sufficiently burdened without opening the hallowed doors of our Court of Appeal to second chance claims. And this also explains why pleaders must, for the most part, argue their appellate files in the state they were presented before the lower courts.

But a recent decision of the Court of Appeal leaves one wondering whether the locks to the doors may be getting a little rusty. On February 3rd, 2017, the Court released what appeared to be an otherwise mundane decision pursuant to which it overturned the Superior Court in a seemingly routine matter involving a “situation d’enclave” and the plaintiff’s attempt to gain access from the public road to his allegedly enclosed wood lot and sugar bush (Gingras v. Chouinard 2017 QCCA 109). What is striking about this decision is the manner in which the appellant was able to introduce important new evidence to support his appeal.

At trial, the plaintiff argued his wood lot was enclosed within the meaning of Article 997 CCQ. To alleviate the “situation d’enclave”, he sought a right of way over either the property of his neighbours to the north, or the property of his neighbours to the west. Both sets of neighbours contested the request, arguing inter alia that the plaintiff’s wood lot was not in fact enclosed, given that he could access the public road over the property of his neighbours to the south, individuals who were neither party to nor witnesses in the proceedings.

The trial judge agreed with the defendants, ruling that the plaintiff’s property did not present a “situation d’enclave” given the access which, according to the proof administered at trial, had historically been tolerated over the southern neighbours’ lot [1]. Not only did the plaintiff appeal, but the thitherto unsuspecting neighbours to the south even tried to revoke the Superior Court’s judgment, arguing that they had not been heard at any point in the wood lot saga.

Revocation was denied [2], as was leave to appeal that denial [3]. The originating judgment had not in any way impacted the rights of the southern neighbours. All the original judge had done was make a finding of fact – based on the evidence administered at trial – regarding the alleged “situation d’enclave”. Whether or not access had been tolerated in the past, the southern neighbours retained the right to refuse plaintiff passage over their property and as such, they failed to meet the requirements set out in Article 489 CCP.

But the plaintiff’s appeal persisted, and in the course of those proceedings, he sought permission to introduce a boat load of new evidence, including affidavit evidence from the neighbour to the south, and more technical evidence from a land surveyor and excavation contractor. All of this new evidence was adduced to address the very foundation of the trial judge’s reasoning, which was to the effect that the plaintiff’s property was not in fact enclosed given the available access to the south.

Sound like a redo to you?

It bears mention that the defendants’ argument regarding the southern access point did not exactly catch the plaintiff by surprise. The issue had apparently been raised in pre-trial discovery [4], and there seemed to be much testimony led on the issue of the southern access point at the hearing, albeit not from the owners of the lot in question. Would it not be incumbent on the plaintiff, as master of his proof, to adduce evidence from the southern neighbours if the southern access point was going to play such a critical role in the case?

Apparently not. Instead, the Court of Appeal allowed plaintiff to introduce all the new evidence, suggesting it may have been up to the trial judge to require that the evidentiary gap be filled, pursuant to Article 292 of the former CCP [5]. But what about those locks to the Court of Appeal’s doors? Doesn’t this approach run afoul the well-established criteria for introducing “new evidence” on appeal under Article 380 (formerly Art. 590(2)) CCP?

Once again, apparently not. And so the plaintiff got to essentially retry his case, this time on the strength of evidence that went to the heart of the lower court’s ruling, but which was clearly available to the plaintiff (and the defendants, for that matter) when the trial was originally heard.

Not surprisingly, the plaintiff’s appeal was allowed, the “situation d’enclave” was noted and a right of way was granted over the property of one the original defendant group of neighbours. This said, the Court of Appeal did take pains to mention that its decision found support not only in the new evidence, but also in the evidence that had been adduced at trial:

[23] En définitive, la Cour estime que tant la preuve au procès que la preuve additionnelle autorisée démontrent que la propriété de l’appelant est enclavée, ce qui donne lieu à l’application des articles 997 et suivants du Code civil du Québec.

 [24] Ayant conclu à l’existence d’une enclave, il appartient maintenant à la Cour de régler ce problème en déterminant sur quels fonds l’appelant peut exercer son droit d’accès à la Route 138 en l’absence d’une issue praticable sur le chemin du Cap-Tourmente.

 [25] En se fondant sur l’article 998 du Code civil du Québec, l’arpenteur-géomètre Stéphane Lemay suggère dans un rapport daté du 18 janvier 2013, sous le numéro 535 de ses minutes, que le droit de passage soit exercé de préférence sur les fonds appartenant aux intimés Godin, Perron et Duchesne. L’article 998 est rédigé de la façon suivante : 

998. Le droit de passage s’exerce contre le voisin à qui le passage peut être le plus naturellement réclamé, compte tenu de l’état des lieux, de l’avantage du fonds enclavé et des inconvénients que le passage occasionne au fonds qui le subit.

998. Right of way is claimed from the owner whose land affords the most natural way out, taking into consideration the condition of the place, the benefit to the enclosed land and the inconvenience caused by the right of way to the land on which it is exercised.

 [26] La Cour est d’avis que la suggestion de l’arpenteur-géomètre est bien fondée, et ce, en tenant compte tant de la preuve faite au procès que de la preuve additionnelle et des arguments soumis par les parties lors de l’audience du 15 décembre 2016.

[emphasis added]

The moral of this story may still be a simple one and reminds us of the ancient adage: If at first you don’t succeed, try, try again!

But should we really?

[1] Gingras v. Chouinard 2012 QCCS 5397 (Honourable Benoit Moulin, J.S.C.) at par. 83 & 84
[2] Gingras v. Chouinard 2013 QCCS 4206
[3] Gravel v. Gingras 2013 QCCA 1521
[4] See par. 5 of Justice Moulin’s reasons, supra note 1
[5] Gingras v. Godin 2016 QCCA 2116, at par. 8-11

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