Everest v. Champion Savings Corporation Ltd.

Everest v. Champion Savings Corporation Ltd.

The dismissal of a motion for peremption is an instance within an instance and, because it disposes finally of the procedural ability to continue the main action, it is a final judgment; therefore the Court of Queen's Bench had jurisdiction to hear an appeal de plano from the Superior Court's dismissal of the peremption motion and the appellant's appeal was allowed.

Citation
[1962] SCR 289
Parties
Defendant Appellant: Charles E. Everest; Plaintiff Respondent: Champion Savings Corporation Limited
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
15 December 1961
Procedural Posture
Civil Appeal (motion for Peremption) / Appeal to the Supreme Court of Canada From the Court of Queen's Bench, Appeal Side, Following Quashing of De Plano Appeal From Superior Court Judgment Dismissing Motion for Peremption
Outcome
Appeal allowed
Legal Topics
Peremption, Interlocutory Vs Final Judgment, Jurisdiction to Hear De Plano Appeals
Source Language
English
Civil Procedure Appeal Peremption Interlocutory Vs Final Judgment Jurisdiction to Hear De Plano Appeals

Case Brief

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Parties

Charles E. Everest

Defendant Appellant

Champion Savings Corporation Limited

Plaintiff Respondent

Procedural Posture

Civil Appeal (motion for Peremption) / Appeal to the Supreme Court of Canada From the Court of Queen's Bench, Appeal Side, Following Quashing of De Plano Appeal From Superior Court Judgment Dismissing Motion for Peremption

Legal Issues

  1. 1 Whether dismissal of a motion for peremption by the Superior Court is a final judgment appealable de plano to the Court of Queen's Bench
  2. 2 Whether a motion for peremption constitutes an instance within an instance and therefore gives rise to a final judgment
  3. 3 Whether leave was required under art.1211 C.P. for an appeal from the dismissal of a motion for peremption

Ratio Decidendi

The dismissal of a motion for peremption is an instance within an instance and, because it disposes finally of the procedural ability to continue the main action, it is a final judgment; therefore the Court of Queen's Bench had jurisdiction to hear an appeal de plano from the Superior Court's dismissal of the peremption motion and the appellant's appeal was allowed.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed with costs
  • Record returned to the Court of Queen's Bench to consider the Superior Court judgment dismissing the motion for peremption