R. v. Sawicki, 2017 NLCA 7

Tommy Winters (applicant/appellant) v. Nor-Lab Limited (respondent) (16/125) Indexed As: Winters v. Nor-Lab Limited 2017 NLCA 7 1 C.A.N.L.R. 428 Court of Appeal of Newfoundland and Labrador Hoegg J.A. January 31, 2017

Summary: The appellant, Mr. Winters, applied for a reinstatement of his appeal which had been deemed abandoned. Held: Application dismissed. Hoegg J.A.: Rule 17(9) the Court of Appeal Rules , NLR 38/16 provides for reinstatement. The controlling factor under the rules is whether reinstatement would be just, but other factors previously considered relevant under the former rules provide a useful analytical approach. Mr. Winters had a bona fide intention to pursue his appeal and that he has a reasonable excuse for not complying with the time requirement in the Rules .

He had dismissed his counsel and was in the process of finding another. Nevertheless, there were concerns about Mr. Winters’ plan to proceed with his appeal. The timeliness of his application for reinstatement is also of concern. While the approximate delay of one month between notice of the deemed abandonment and the application for reinstatement was timely, the delay of about eight months between when his appeal was deemed or could first have been deemed abandoned and the reinstatement application is not particularly so. Of greater concern to Mr.

Winters’ application is whether he has an arguable case on appeal. There is nothing in the Judge’s decision, in the record filed by Mr. Winters, or in his oral submissions which indicates that Mr. Winters has an arguable case on appeal. He has not shown me any basis on which I could say that the Judge erred or may have erred in his decision, and I have not been advised of any special circumstances that would otherwise justify reinstatement. Generally speaking, if there is no arguable case in an abandoned appeal there is no point in reinstating it.

Accordingly, it would not be just to reinstate it and the application to do so was dismissed. Cases cited: Fahey v. The Law Society of Newfoundland , 2003 NLCA 8 , 221 Nfld. & P.E.I.R. 79 Ellis v. Pelley Estate , 2016 NLCA 77 Burgess v. Burgess, 2015 NLCA 39 , 371 Nfld. & P.E.I.R. 1 R. v. Sawicki , 2013 NLCA 35 , 337 Nfld. & P.E.I.R. 271 Counsel:

Appearing on his own behalf, the applicant/appellant; Kyle Rees, for the respondent. This application was heard on January 24, 2017 before Hoegg J.A. The following judgment was delivered on January 31, 2017 by Hoegg J.A. ______________________________________________________________ Hoegg J.A.: [ 1 ] Tommy Winters applies for reinstatement of his appeal which was filed on February 27, 2015. Mr. Winters was advised that his appeal was abandoned by correspondence dated October 14, 2016 from this Court’s Registry, and he applied for reinstatement on November 21, 2016.

Nor-Lab opposes his application. [ 2 ] On October 17, 2016, the Court of Appeal Rules , NLR 38/16 (the “new rules”) came into force. The new reinstatement rule, Rule 17(9) provides for reinstatement upon terms the Court considers just. Under the former rules, reinstatement of a civil appeal which was deemed abandoned involved balancing the following factors, set out in Fahey v. The Law Society of Newfoundland , 2003 NLCA 8 , 221 Nfld. & P.E.I.R. 79 at paragraph 13 : (

i) whether the appeal discloses an arguable case, (ii) whether the applicant had a bona fide intention to proceed with his or her appeal, (iii) whether the applicant has a reasonable excuse for failing to proceed with his or her appeal prior to the deemed abandonment, (iv) the timeliness of the application of reinstatement, and (

v) the presence or absence of special circumstances that might justify or deny reinstatement. [ 3 ] While the controlling factor under the new rules is whether reinstatement would be just, the Fahey factors provide a useful analytical approach ( Ellis v. Pelley Estate , 2016 NLCA 77 at para. 5 ). [ 4 ] Mr. Winters filed documentation with his application for reinstatement, including correspondence he received from two former lawyers concerning the merits of an appeal. [ 5 ] After receiving the trial judge’s decision in his case, Mr.

Winters rejected his trial counsel’s advice, filed an appeal himself and retained new counsel to pursue it. He advised the Court that he believed his new counsel was pursuing the matter from March 2015 until late 2016. The record shows that relations broke off with his new counsel in the fall of 2016. Mr. Winters did not advise the Court of a plan for proceeding with his appeal (see various references to a plan in the new Rule 17).

However, he did advise at the hearing that he had recently spoken with another counsel who told him that he would take on the case, although that lawyer has had no contact with the court and nothing has been filed in that regard. Mr. Winters also advised the Court of relatively recent personal problems which he says have prevented him from proceeding with his appeal. Accordingly, I accept that Mr. Winters had a bona fide intention to pursue his appeal and that he has a reasonable excuse for not complying with the time requirement in the Rules . Nevertheless, I have concerns about Mr.

Winters’ plan to proceed with his appeal. [ 6 ] The timeliness of his application for reinstatement is also of concern. While the approximate delay of one month between when Mr.

Winters received notice of the deemed abandonment and when he applied for reinstatement on November 21, 2016 is timely, the delay between when his appeal was deemed or could have been deemed abandoned on March 31, 2016 and November 21, 2016 is not particularly so. In any case, most of this period is when Mr. Winters was represented by counsel. [ 7 ] Of greater concern to Mr. Winters’ application is whether he has an arguable case on appeal. Mr. Winters operated a store in Makkovik at which he sold beer supplied to him by Nor-Lab.

He had an outstanding account of $137,598.70 with Nor-Lab, so Nor-Lab sued him (Nor-Lab Limited v. Winters , 2015 NLTD(G) 8) for payment. Mr. Winters filed a counter-claim asserting that he had been charged by Nor-Lab for beer which had not been delivered to him. More specifically, Mr. Winters maintained that Nor-Lab charged him for twelve-packs of beer when they only delivered eight-packs to him. His appeal is based on the position he asserted in the counterclaim. [ 8 ] The Judge allowed Nor-Lab’s claim and dismissed Mr.

Winters’ counterclaim saying “There is no evidence whatsoever to support the allegation in the counterclaim” (paragraph 16). [ 9 ] Mr. Winters continues to maintain that Nor-Lab over-charged him, and argues that had his accountant been able to testify, or had his accountant’s reports been admitted into evidence, the result would have been different. Mr. Winters included his accountant’s two one- page reports in the material he filed on this application. These reports do not support Mr. Winters’ argument that he received eight-packs of beer while being charged for twelve-packs or that he was otherwise overcharged.

Complicating Mr. Winters’ ground of appeal is the fact that the accountant has since passed away. [ 10 ] I have reviewed the Judge’s decision which deals with Mr. Winters’ overcharging argument. The decision appears to me to be carefully considered and sound. I cannot see how the brief and equivocal remarks in the accountant’s two reports could affect the Judge’s decision. I also note the advice from Mr. Winters’ former trial counsel that the information which the accountant could have provided had he testified would not have been useful and “would likely have been detrimental” to Mr.

Winters’ case and “supported the plaintiff’s” case. I note that both former counsel told Mr. Winters that they were of the opinion that the Judge made no appealable errors of fact or law in his decision. [ 11 ] In

summary, there is nothing in the Judge’s decision, in the record filed by Mr. Winters, or in his oral submissions which indicates that Mr. Winters has an arguable case on appeal. He has not shown me any basis on which I could say that the Judge erred or may have erred in his decision, and I have not been advised of any special circumstances that would otherwise justify reinstatement. In short, Mr. Winter’s appeal has no prospect of success. [ 12 ] Generally speaking, if there is no arguable case in an abandoned appeal there is no point in reinstating it ( Burgess v.

Burgess 2015 NLCA 39 , 371 Nfld. 8 P.E.I.R. 1 at para. 7 ). (See also the comments of Green, C.J. to the same effect in R. v. Sawicki , 2013 NLCA 35 , 337 Nfld. & P.E.I.R. 271 at para. 22 in the context of an application to extend the time to file a Notice of Appeal). For the above reason, I am of the view that reinstatement of Mr. Winters’ appeal would be futile and a waste of resources for Mr. Winters as well as for the justice system. Accordingly, it would not be just to reinstate it. [ 13 ] In the result, Mr.

Winters’ application for reinstatement of his appeal is dismissed. [ 14 ] Nor-Lab advised the Court that it was not seeking costs due to Mr. Winters’ circumstances. Accordingly, I make no order as to costs. Application dismissed .