Executive Summary: Key Legal and Evidentiary Issues

• Québec inc. sought to strike the City's subsidiary conclusions and paragraphs 112 to 116 of its respondent's brief.
   
• Ville d'Estérel brought a bene esse application for leave to file a late incidental appeal.
   
• Club de golf Estérel inc. and Québec inc. opposed the City's application, citing prejudice to the Golf Club's benefit of the trial judgment.
   
• Article 363 C.C.P. governs whether a late incidental appeal may be authorized.
   
• Diligence by the City's counsel upon discovering their filing error supported granting leave.
   
• Granting the incidental appeal rendered Québec inc.'s motion to dismiss the appeal moot.
   

Facts of the case

The trial judgment in Ville d'Estérel c. Club de golf Estérel inc., 2025 QCCQ 2733, ordered 9025-1950 Québec inc. to repay a tax exemption of nearly $104,000 to Ville d'Estérel, while dismissing the City's claim against Club de golf Estérel inc. Québec inc. appealed that judgment. In its respondent's brief, the City argued that the judgment was well-founded and that Québec inc.'s appeal should be dismissed, but it also included a subsidiary conclusion: if the Court allowed Québec inc.'s grounds of appeal, the Golf Club should instead be ordered to pay the amount owed. Because this subsidiary claim would alter the trial judgment's dismissal of the claim against the Golf Club, an incidental appeal was required — something the City had not filed within the time limit set by article 360 C.C.P. Québec inc. moved to strike the subsidiary conclusions and supporting paragraphs on that basis, prompting the City to bring a bene esse application for leave to file a late incidental appeal.

Policy and legislative provisions at issue

The motion to dismiss relied on articles 49 and 365 paragraph 1 of the Code of Civil Procedure. The City's application for leave to file a late incidental appeal engaged articles 360 paragraph 2 and 363 C.C.P., which govern time limits for incidental appeals and the Court's discretion to authorize late filings. The Court also applied the criteria set out in Montambault c. Outfront Media Canada, 2020 QCCA 1145, which require a party seeking leave to act with diligence, avoid unduly delaying the appeal, and raise serious issues; leave will never be appropriate where the proposed incidental appeal is frivolous, dilatory, or has no reasonable chance of success.

Reasoning and analysis

The Court found that an incidental appeal was necessary because the City's subsidiary conclusion sought to change the trial judgment's dismissal of the claim against the Golf Club — a point all parties came to accept. Applying the Montambault criteria, the Court accepted that the City's failure to file within the deadline stemmed from a good-faith error by its counsel, who acted diligently once the error was discovered. The incidental appeal raised a serious issue already decided by the trial judgment, and neither the Golf Club nor Québec inc. would be taken by surprise. While the incidental appeal would add complexity by increasing the number of issues before the Court, it would not delay the main appeal, since the incidental appellant's brief could be filed within 10 days of the judgment. The Court concluded that the interests of justice favoured resolving the entire dispute within the same appeal, notwithstanding the Golf Club's concern about losing the benefit of the trial judgment's dismissal in its favour and the added complexity of potentially having to raise Québec inc.'s solidary liability.

Ruling and overall outcome

The Court granted Ville d'Estérel's bene esse application for leave to file a late incidental appeal, authorizing it to file its notice of appeal within 5 days and an amended brief — not exceeding 30 pages and incorporating its incidental appellant's brief — within 10 days of the judgment. Club de golf Estérel inc. was granted 10 days from notification of the incidental appeal to file its own incidental appeal against Québec inc. if it chose to do so, with its brief (maximum 30 pages) still due by September 9, 2026. Québec inc. was granted 30 days from notification of the Golf Club's brief to file a supplementary brief of up to 10 pages. As a result, Québec inc.'s motion to dismiss the appeal was declared moot, except that the City must still correct its brief to reflect the incidental appeal. Costs were ordered to follow the outcome of the appeal, meaning no monetary amount was fixed by this judgment; the underlying tax-exemption repayment amount at issue in the appeal is approximately $104,000, as stated in the trial judgment under review.