Bobbi Jo Campbell Appellant And: TOWN OF North West River Respondent, 2021 NLSC 47

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Campbell v. North West River (Town) , 2021 NLSC 47 Date : April 6, 2021 Docket : 202008G0017 Between: Bobbi Jo Campbell Appellant And: TOWN OF North West River Respondent Before: Justice Frances J. Knickle On Appeal From: A Decision of the Small Claims Division of the Provincial Court of Newfoundland and Labrador, File #1717C00016, dated the 17 th day of April, 2019. Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: July 29, 2020; August 24, 2020

Summary: The Applicant sought to extend her time to file an appeal from the Small Claims Court’s dismissal of her claim against the Town of Northwest River. She also applied to have a stay entered against the order for costs made by the Small Claims Court judge. The Town submitted there was no jurisdiction to extend the time, and even if there was this was not a situation in which the Court should exercise its discretion to so do. The Court was satisfied that it possessed the necessary jurisdiction to extend the time to file an appeal, but dismissed the application.

The Applicant did not establish a bona fide intention to appeal within the appeal period. Even if she had a bona fide intention to appeal, she had not only provided no reasonable excuse for failing to appeal within the limitation period, there was no evidence to show there was any merit to an appeal. The application was dismissed.

Appearances: Bobbi Jo Campbell Appearing on her own behalf Christopher D. Goodridge Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Conception Bay South (Town) v. Newfoundland (Public Utilities Board) (1991), (NL CA),92 Nfld. & P.E.I.R. 167, 25 A.C.W.S. (3d) 1013 (Nfld. C.A.); R. v. Stacy, 2011 NLTD(G) 47; Eastern Regional Integrated HealthAuthority v. Association of Registered Nurses of Newfoundland and Labrador, 2016 NLTD(G) 182; Law Society of Newfoundland andLabrador v. Wentzell, 2020 NLSC 141; Ellis & Birt Ltd. v.

Prince Edward Island (Island Regulatory & Appeals Commission (1993), (PE SCAD), 105 Nfld. & P.E.I.R. 65, 331 A.P.R. 65 (P.E.I. S.C. (App. Div.)); City of Corner Brook v. ColemanManagement Services Limited, 2005 NLTD 168; Law Society (Newfoundland) v. Fahey, 2000 NFCA 19;. STATUTES CONSIDERED: Municipalities Act, 1999, S.N.L. 1999, c. M-24; Small Claims Act, R.S.N.L. 1990, c. S-16; Law SocietyAct, 1999, S.N.L. c. L-9.1; Judicature Act, R.S.N.L. 1990, c. J-4. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D.

REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Bobbi Jo Campbell, (“the Applicant”), has filed two applications before the Court. The first is an application to extend thetime for filing a notice of appeal from a dismissal of her claim against the Respondent in Small Claims Court, as well as the order ofcosts made against her. The Applicant has also applied for a stay of the order of costs. [2] The Town of North West River, (“the Respondent”), opposes both applications.

In support of their position an affidavit fromWendy Hillier, employee of the Town, has been filed with the Court. [3] The Applicant has filed little material in support of her position. [4] For the reasons that follow, both applications are dismissed with costs to the Respondent. BACKGROUND FACTS [5] Although the Applicant has filed little material to elucidate how the matter came to be before the Small Claims Court,according to the affidavit of Ms. Hillier the dispute arose over the Applicant’s decision to erect a fence on property the Town asserts doesnot belong to her. According to Ms.

Hillier, the fence was erected in the “road reservation”. The Town sent the Applicant a “removalorder” under

section 404 of the Municipalities Act, 1999, S.N.L. 1999, c. M-24 (the “Act”). The Applicant did not comply with thisorder, so the Town removed the fence. The Town asserts this authority is granted to them under

section 404 of the Act. [6] According to Ms. Hillier, the Applicant filed a statement of claim on September 13, 2017. The statement of claim alleged thatthe Town “wrongfully” removed the fence. [7] Although no less than four separate trial dates were set over the next year and a half, the matter did not proceed to trial on itsmerits. [8] The first trial date was scheduled for March 2018, however, the Applicant requested an adjournment to retain counsel. It is

unclear when this request was made. The trial was re-scheduled to May 22, 2018. Two weeks before trial, now represented by counsel, the Applicant made a second request for a postponement. According to Ms. Hillier’s affidavit, this request was so that the Applicant could furnish her counsel with “more documentation”. The application for the postponement of the trial was scheduled. The Applicant’s solicitor appeared but the Applicant did not appear; apparently because of a family emergency. The trial was again postponed to November 29, 2018. [ 9 ] According to Ms.

Hillier, the Applicant’s counsel “subsequently withdrew as counsel of record”. It is unclear when this occurred, except that it occurred sometime prior to the November 29, 2018 trial date. [ 10 ] Unaware that the Applicant’s counsel had withdrawn, counsel for the Town flew to Happy Valley-Goose Bay to attend the trial as scheduled. When he attended the next day, the Applicant was not present. Counsel was advised by the Court that the Applicant was unable to attend for trial. According to the Applicant, the Court staff telephoned her and a new date was set.

Although the Applicant filed no affidavit or information explaining why she could not attend this third trial date, at the hearing of this application the Applicant explained that there was an emergency with a family member that prevented her from attending court. [ 11 ] A fourth date was set for trial; April 17, 2019. According to Ms.

Hillier’s affidavit, when setting this trial date the Applicant was also given the phone number of the Town’s solicitor to ensure that if the Applicant could not for some reason attend trial, she should advise counsel ahead of time so that he would not need to travel. [ 12 ] In preparation for the trial, counsel for the Town again flew to Happy Valley- Goose Bay on April 16, 2019. Upon arriving for court on the 17 th , counsel was advised by the Court that the Applicant could not attend for trial.

The matter was dismissed by the Small Claims Court judge and costs were ordered against the Applicant. [ 13 ] The record of the judgment from the Small Claims Court is a one page document printout from the Provincial Court, with the endorsement of the judge dismissing the claim, and the amount of $3,296.96 to be paid at a rate of $100 per month until the full amount is paid, “starting May 2019”. It is not clear from this one page judgment that the order is for costs, but as explained in the affidavit of Ms.

Hillier, at the request of the Respondent costs were ordered by the Small Claims Court judge to be paid by the Applicant. [ 14 ] In her application to extend time to file her notice of appeal, the Applicant explained that she could not attend trial because she required surgery. However, the Applicant did not advise anyone of her unavailability until the morning of the trial, when she sent a facsimile communication to the Provincial Court. A copy of the communication was filed with her application to this Court.

According to the receipt, a facsimile was received by the Small Claims Court at 9:21 a.m. - minutes before the trial was scheduled to begin. The second page of the facsimile includes a document entitled “Disability Certificate”. It is dated April 16, 2019, the day prior to the scheduled trial date. It does not state that the Applicant could not attend court because of required surgery, but states that the Applicant was seen on the 15 th and 16 th of April, 2020 by a physician and “ has a medical reason for being absent from work ”.

The cover sheet of the facsimile communication from the Applicant included a handwritten note that states: To: Prov Court Fr: Bobbi Jo Campbell. I will not be available for court call today. Please advise when the next date will be. [ 15 ] A phone number, presumably the Applicant’s, was also included on the cover sheet.

At the hearing of this matter, although having filed nothing formal from the Provincial Court, the Applicant asserted that she was advised by the court that she would be advised of a further date for trial. [ 16 ] As stated, the court dismissed the Applicant’s claim and awarded costs incurred by the Town in having counsel attend for both the April and November trial dates in the amount of $3,296.19, to be paid commencing May 1, 2019 at $100 per month.

Given that the court dismissed her claim, I am circumspect of the Applicant’s assertion at this hearing that she was advised by the court that she would be given yet a further trial date. [ 17 ] Whether the court did or did not so advise the Applicant, it is clear the Applicant took no steps to pursue the matter until she realized that monies were removed from her account in early 2020 to enforce the judgment against her. The application to extend time to file her notice of appeal was filed in February of 2020, some ten months after the order was issued by the Small Claims Court judge.

The Applicant asserts that $3,296.19 was taken from her bank account without her knowledge, and that it was only when she became aware that monies had been removed that she learned of the monetary award against her. In her written application, the Applicant stated that she learned of the judgment on February 21, 2020. [ 18 ] The Applicant now seeks to overturn the dismissal of her claim and have the matter returned to the Small Claims Court for a trial on its merits.

THE POSITION OF THE PARTIES [ 19 ] The Applicant submits that she should be entitled to an order extending her time to file an appeal of the judgment. She submits she could not attend the trial for medical reasons, and she should be entitled to her “day in court”. She submits she has a legitimate claim against the Town for removing her fence, and she should be given the opportunity to prove her claim. She submitted she has several disabilities, and as a self-represented litigant, the Court ought to afford her considerable leeway in the prosecution of her claim against the Town.

Although not specifically so stated in her application, I understand from the Applicant that she wishes to not only return the matter to Provincial Court for trial, but also set aside the order for costs against her.

[20] The Town submits the application to extend the time to file the notice of appeal should be dismissed on both a jurisdictionaland substantive basis. The Town asserts that the amendments to the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D (the“Rules”) has removed the jurisdiction of this Court to allow an extension of time to file an appeal, in these circumstances. In thealternative, if the Court accepts that there is jurisdiction to hear the application to extend time to appeal the Small Claims Court decision,the application should be dismissed on its merits.

The Applicant has not established that she had a bona fide intention to appeal, and hasprovided no basis for the Court to find that there is any legal merit to her claim. [21] Further, she has shown laches in her failure to pursue her claim against the Town. Four separate trial dates were scheduled toaccommodate the Applicant who either could not, or did not, attend court. She has never appeared ready to proceed with the trial andhas never disclosed the basis for her claim.

More frustrating for the Town, the Applicant has never communicated with their solicitormeaning that the Town, which is small in population, has incurred considerable expense in trying to resolve the matter and preparing fora trial on four separate occasions. The Small Claims Court went to great length to accommodate the Applicant in re-scheduling hermatters. The Town asserts it was well within its right to remove the fence and there is no basis to disturb the trial judge’s decision todismiss the claim, or the award of costs, in the circumstances.

THE ISSUES [22] The issues that must be decided in this matter are: 1) Does this Court have the jurisdiction to extend the appeal period beyond the 30 days as stated in the Small Claims Act, R.S.N.L.1990, c. S-16; and 2) If the Court has the jurisdiction to extend the appeal period, should it so do in these circumstances? ANALYSIS ISSUE 1: Does this Court have the jurisdiction to extend the appeal period beyond the 30 days as stated in the Small Claims Act? [23] Appeals are creatures of statute. This means that the powers or rights available on appeal are governed by the legislation thatcreates the right.

This is a principle that is strictly applied and includes whether or not the Court has the authority to extend the time tofile an appeal where the limitation date has expired. Put another way, the ability to extend the time limit to file an appeal must be foundin the governing legislation. As stated by Goodridge, C.J.N. in Conception Bay South (Town) v. Newfoundland (Public Utilities Board)(1991), (NL CA), 92 Nfld. & P.E.I.R. 167, 25 A.C.W.S. (3d) 1013 (Nfld. C.A.) at paragraph 12: A right of appeal is created or brought into existence pursuant to a statute and does not otherwise exist.

It must be brought strictly inaccordance with or pursuant to the terms of the enabling statute. Where there is a conflict between the rules of court and a statute, thestatute prevails. [24] In Conception Bay South, Goodridge, C.J.N. found there was no jurisdiction of the court to extend the time to file an appeal;notwithstanding that the Rules permitted an extension of time. The Rules were clear they could not apply if they were in conflict withthe statute.

As the statute provided for the particular time limitation, and stated nothing regarding an extension of time, or theapplicability of the Rules, to apply the extension of time available on the Rules would be in conflict with the governing statute (seeparagraphs 13-15). [25] In these circumstances, as a proceeding in Small Claims Court, the Applicant’s right of appeal is governed by

section 14 of theSmall Claims Act.

Section 14 states: Section 14 (1) A party to a proceeding may appeal from a judgment of order of a judge to the Trial Division.

(2) Where an appeal is taken, the appellant shall give written notice of the appeal within 30 days if the judgment or order to the Courtand to the other parties in the proceeding. (3)The rules of procedure relating to an appeal to the Supreme Court apply with the necessary changes to an appeal under this section. [26] There is no dispute that in these circumstances the 30 day appeal period in which to file an appeal, as required by section 14(2),has expired. It is also clear there is nothing in the Small Claims Act itself that explicitly permits an extension of time.

Given this, theApplicant’s rights of appeal were extinguished by the expiration of the 30 appeal period; unless there is other applicable legislativeauthority that permits an extension of time to file her appeal. [27] Relying on the outcome in Conception Bay South, the Respondent submits that because section 14(2) refers only to 30 days inwhich to appeal, and makes no reference to any potential for an extension of time, the statute is clear that there is no authority to extendthe time to appeal a matter under the Small Claims Act.

I agree this would be the case if sections 14(1) and (2) were all that composedsection 14. However, sections 14(1) and (2) must be read together with section 14(3), which explicitly applies the Rules to appeals. [28] Section 14(3) of the Small Claims Act states that the Rules relating to an appeal to the Supreme Court “apply with the necessarychanges” to an appeal under the Small Claims Act.

I take this to mean that the parameters of an appeal as provided for in the Rules applyto appeals under the Small Claims Act. [29] As the Rules apply, with the necessary changes, to an appeal under the Small Claims Act, it is necessary then to considerwhether the Rules permit an extension of time for an appeal to the Trial Division.

If the Rules permit an extension of time to file anappeal, then by virtue of section 14(3), authority is provided to allow the extension under these Rules. [30] The former Rule 57 of the Rules governed appeals to the Trial Division and, under Rule 57, subsection .05, applications for anextension of time were within the authority of the Court. Rule 57.05 stated:

57.05. The time limited for filing of a notice of application for leave to appeal under rule 57.02 or a notice of appeal under rule 57.03 orrule 57.04 may be extended either before or after the expiration of the time limited where, in the opinion of the Court, refusal to do sowould create an injustice. [31] However, Rule 57.05 was limited by Rule 57.04(1); which stated: Rule 57.04(1).

If a statute authorizing a tribunal appeal prescribes how the appeal shall be brought or when, how and to whom anynotice of appeal may be delivered, the prescriptions shall be observed. [32] Rule 57.04 limited the application of Rule 57.05, such that “prescriptions” as to how an appeal shall be brought as stated in thegoverning statute must be “observed”. Thus, where a statute was seen to provide for an appeal within a prescribed period, withoutallowing for an extension of time, the Rules could not overcome that limit.

It was for this reason, in Conception Bay South, that theRules could not be applied to extend the time to appeal. The governing statute provided the time limit and made no further reference toeither an extension of time or the applicability of the Rules (see also R. v. Stacy, 2011 NLTD(G) 47 and Eastern Regional IntegratedHealth Authority v. Association of Registered Nurses of Newfoundland and Labrador, 2016 NLTD(G) 182). [33] In December 2017, Rule 57 was repealed by Regulation 111/17, and was replaced with Rule 58.

Unlike its former counterpart,Rule 58 does not explicitly allow for an extension of time to appeal. Instead, Rule 58.02 refers to the applicability of Rules 1-4, where“practice or procedure” respecting appeals is not covered by Rule 58, or the applicable statute. Rule 58.02(3) states: 58.02.

(3) Where an issue respecting practice or procedure arises which is not covered by this rule or by an applicable statute, any ofrules 1 to 4 or the rules in

Part I may be applied as required, with any necessary modifications. [34] Rule 3.03, to which Rule 58.02(3) includes by the statement “any of Rules 1-4”, allows for an “abridging” of time, or“extending a period of time” for “any act” required or authorized by the Rules, for any proceeding generally. Rule 3.03 states: 3.03.

(1) The Court may, on such terms as it thinks just, extend or abridge the period within which a person is required or authorized bythese rules, or by any order, to do or abstain from doing any act in a proceeding.

(2) The Court may extend any period referred to in rule 3.03(

l) although the application for extension is not made until after theexpiration of the period

(3) The period within which a person is required by these rules or any order to serve, file or amend any pleading or other document maybe extended by consent in writing of the parties. [35] The strictness with which the courts interpreted the applicability of the procedures under the former Rule 57 has been equallyapplied to the newer Rule 58; notwithstanding the application of Rule 3.03. For example, in Law Society of Newfoundland and Labradorv.

Wentzell, 2020 NLSC 141, Boone, J. applied the principles as stated in decisions such as Conception Bay South, Stacy, and EasternRegional Health Authority, to the determination of an the availability of an extension of time to file a cross-appeal the Law Society Act,1999, S.N.L. c.

L-9.1, and found no ability to extend time to appeal given the explicit wording of the statute (see paragraph 59). [36] The circumstances here are distinguishable from the circumstances where courts have found that the Rules could not providethe necessary authority to extend the time to appeal; whether in reference to the old Rule 57, or the current Rule 58 in conjunction withRules 1-4.

Although section 14(2) of the Small Claims Act states that an appeal must be filed within 30 days of the judgment, that limitis qualified by section 14(3) adopting or incorporating the Rules; and the Rules, via Rule 58.02 and Rule 3.03, allow for an extension oftime.

Unlike those circumstances where the governing statute was either silent, or qualified any application of the Rules, I am satisfiedsection 14(3) explicitly applies the Rules to appeals under that Act, and provides the necessary jurisdiction to the Court to permit anextension of time to file an appeal under Rule 3.03. [37] The Respondent submits the absence of any reference to an extension of time in

section 14 of the Small Claims Act makes itclear that no extension of time is available. As per Rule 58.02, the matter is “covered” in the statute by the absence of reference to thematter. Given this, to accept that Rule 3.03 applies to appeals under the Small Claims Act, would create conflict to the stated limit of 30days to appeal. [38] I disagree. If

section 14 was silent on the question of the application of the Rules, or clearly limited the application of theRules, I would be more amenable to the argument of the Respondent. For example, if section 14(3) stated that the Rules applied “exceptas otherwise stated in this Act”, then I agree with the Respondent that the application of the Rules would be qualified by the 30 day limitas stated in section 14(2), as authority that is “otherwise” to the Rules (see for example Ellis & Birt Ltd. v.

Prince Edward Island (IslandRegulatory & Appeals Commission (1993), (PE SCAD), 105 Nfld. & P.E.I.R. 65, 331 A.P.R. 65 (P.E.I. S.C. (App.Div.)) at paragraphs 37 to 40). [39] However in these circumstances, section 14(3) the Small Claims Act explicitly applies the Rules to appeals taken under the Act,without such qualification; but instead uses the language of “with the necessary changes”. I do not find the reference to “with thenecessary changes” in section 14(3) as limiting the availability of an extension of time under Rule 3.03.

There is no dispute that thephrase “with the necessary changes” qualifies the applicability of the Rules to appeals under the Small Claims Act; it is not a limitingphrase in the same way that “except otherwise” provided in this Act, as discussed in Ellis and Burt. [40] The circumstances here are more in keeping with the decision of Barry, J. as he then was, in City of Corner Brook v. ColemanManagement Services Limited, 2005 NLTD 168.

In those circumstances, the governing statute not only provided for a time limit withinwhich an aggrieved party had to take the necessary steps (in those circumstances the party needed to apply for leave to appeal), thestatute also explicitly stated that the “practice and procedure” relating to not only the Rules, but also the Judicature Act, R.S.N.L. 1990,c. J-4, applied to such appeals.

Given the statute’s explicit application of the Rules to the statutory appeals in those circumstances, Barry,J. was satisfied that the Court had the necessary jurisdiction to extend the time to file an appeal in accordance with the Rules. On thisbasis, he distinguished the circumstances from Conception Bay South, and at paragraph 20, Barry, J. stated:

I see the language of the Act in the present case, with its blanket incorporation of the Rules , as more like the Ellis and Burt legislation. By s. 44(2) of the Act the legislature has made our Rules of Court applicable to appeals, without any limiting reference such as "except as otherwise provided" or "where they are consistent with this Act ".

I conclude I have jurisdiction to apply Rule 57.05, which has been incorporated by reference into the statute by s. 44(2), to extend the time for filing a notice of appeal. [ 41 ] In the present circumstances, given the explicit reference in section 14(3) of the Small Claims Act to the applicability of the Rules , and Rule 58 permits an extension of time by reference to Rule 3.03 , I am satisfied that the language of section 14(3) of the Small Claims Act means that Rules 58.02 and 3.03 apply to appeals under the Act . [ 42 ] The Court possesses the necessary statutory jurisdiction by the application of the Rules to appeals from Small Claims Court, under section 14(3) of the Small Claims Act , to allow an extension of time to file a notice of appeal. [ 43 ] However, that is not the end of the matter.

As submitted by the Respondent, whether to extend time to file a notice of appeal is a discretionary decision (see the Law Society of Newfoundland and Labrador v . Wentzell , at paragraphs 68 to 70 ). [ 44 ] The next question is whether the Court should exercise its discretion to permit the extension of time. ISSUE 2: If the Court has the jurisdiction to extend the appeal period, should it so do in these circumstances? [ 45 ] The considerations in determining whether or not to allow an extension of time to file a notice of appeal were stated in Law Society (Newfoundland) v.

Fahey , 2000 NFCA 19 , at paragraph 3 : 1. whether the appellant had a bona fide intention to appeal within the appeal period; 2. whether there is a reasonable excuse for the failure to comply with the rule; 3. the potential merits of the appeal; and 4. the presence of any exceptional or special circumstances justifying or working against the fairness of an extension. [ 46 ] I will consider each of these factors as they relate to the circumstances in the present case. 1.

Whether the appellant had a bona fide intention to appeal within the appeal period. [ 47 ] The appeal period in these circumstances started April 17, 2019, the day the matter was disposed of by the Small Claims Court judge and continued to May 17, 2019, 30 days from the day the matter was dismissed. Although the Applicant took no steps to pursue the matter within the appeal period, she explained that she did not know of the order until February of 2020, when she filed the application. I accept that she formed the intention to appeal once she learned of the order.

Given this, it is possible that had the Applicant known of the order, she may have appealed within the appeal period. While I am not satisfied the information before me establishes that the Applicant possessed a bona fide intention to appeal within the appeal period, I accept that this was so, because she did not know of the order. Now that she does know, she does intend to appeal. 2.

Is there is a reasonable excuse for the failure to comply with the Rule? [ 48 ] However, I am not satisfied the Applicant’s explanation that she did not know of the order is a reasonable excuse for failing to appeal within the appeal period in these circumstances. While I accept that the Applicant did not know of the order, there is no reasonable excuse provided by her for why she did not know what had happened with her claim. [ 49 ] The Applicant did not pursue her claim until she learned that there was an order for costs against her, almost ten months later.

The Applicant made no effort to contact the court after April 17, 2019 to determine what had happened with her matter. The Applicant submits that the court told her that it would contact her with a new date, but I do not accept that there was any such communication given the matter was dismissed. [ 50 ] I accept that once the Applicant learned of the order, she took steps to pursue an appeal, but I cannot ignore the ten months in between where she failed to even make a simple phone call to the court to find out the status of the proceedings.

In those ten months, the Respondent had reasonably assumed the matter was concluded and the matter resolved. [ 51 ] This conduct does not evidence a reasonable excuse. This conduct is evidence of a lack of concern about her claim and the proceedings. That the Applicant was not able to attend her trial on April 17, 2019 does not mean she could simply stand by and assume the matter was postponed. As the Plaintiff, it was incumbent upon her to pursue her claim. If she had followed up in a timely manner, she would have learned that the Small Claims Court judge had dismissed the claim.

The option to appeal at that time would have become apparent. This the Applicant did not do, and she has provided no satisfactory explanation as to why. [ 52 ] I accept the Applicant has medical issues, but that does not provide an explanation as to why she did not pursue what happened with her matter for ten months. Her medical issues have not prevented the Applicant from pursuing the matter.

For example, she had no difficulty filing her application to this Court immediately upon learning of the order of the Small Claims Court judge. [ 53 ] The absence of a reasonable excuse, while not determinative, supports that the application to extend the time to appeal should be dismissed. 3. The potential merits of the appeal.

[ 54 ] While I am not satisfied that the Applicant has provided a reasonable excuse for failing to pursue her right of appeal within the limitation period, my main concern is that the Applicant has provided no evidence to show that her appeal has merit on the substantive issue: whether the Town was entitled to remove the fence. She has provided nothing to explain why there is merit to her claim against the Respondent, and the Respondent asserts it was within its authority to remove the fence the Applicant erected. [ 55 ] This is not a complicated matter: the Applicant alleges the Respondent wrongfully damaged her property, her fence, by removing it. The Respondent relies on

section 404 of the Municipalities Act . Section 404(1)(

i) of that Act permits a Town Council to order that: 404 (1)(

i) a fence, building, steps, erection or other object which projects into or over land reserved for a public highway or sidewalk be removed; [ 56 ] Under section 404(5), where a person does not comply with an order under section 404(1), the Council may take “the action it considers necessary” to carry out the terms of the order. [ 57 ] According to the Respondent, and there is nothing to contradict these facts, the Applicant failed to remove the fence when so ordered to do.

The Respondent exercised its authority under section 404(5) of the Municipalities Act and removed the fence. [ 58 ] The Applicant does not dispute that she constructed the fence on town property, or was advised by the Respondent to remove the fence. The Applicant alleged in her statement of claim that she was given permission to erect the fence by the Respondent.

However, there is no identification from whom that permission was given, or any supporting evidence to establish that she had permission to build the fence. [ 59 ] Nor did the Applicant take any steps to appeal the order to remove the fence, as permitted by

section 408 of the Municipalities Act . One might have expected that had she been given permission by a Town official to construct the fence, she might have taken the necessary steps to object to an order requiring her to remove the fence.

She did not. [ 60 ] There is nothing before me to show why there is merit to her claim against the Respondent that supports overturning the dismissal of the complaint, or that the Respondent was not within its authority to remove the fence. [ 61 ] Similarly, in relation to the costs award, there is nothing before me to show why there is any merit to an appeal of the Small Claims Court’s decision to award the costs incurred by the Respondent to attend the proceedings on two separate dates.

Costs are a matter of discretion of the trial judge, and there is nothing before me to support any argument that the exercise of discretion by the judge to so order was anything other than reasonable in the circumstances. 4. The presence of any exceptional or special circumstances justifying or working against the fairness of an extension. [ 62 ] The Applicant asserts that as a matter of fairness, she should be able to “have her day in court” to establish that she has been wronged by the Respondent.

She could not attend the trial on April 17, 2019 and it is unfair that she not be given the opportunity to pursue her claim. [ 63 ] If this was the only occasion in which the Applicant had not appeared for trial, or taken the necessary step to address the conflict between she and the Respondent, there might be more sympathy to this argument. However, a review of the record suggests that the Applicant has been anything but reasonable in addressing the conflict with the Respondent. A review of the record, as supported by the affidavit of Ms.

Hiller for the Respondent, shows the Small Claims Court had gone to great lengths to accommodate the Applicant in scheduling the trial no less than four times, sometimes at the last minute, causing expense to not only the court but the Respondent. I also accept the affidavit of Ms.

Hillier on behalf of the Respondent that the Town and its counsel have tried to communicate and work with the Applicant to resolve the issue, all to no avail. [ 64 ] When I consider all the circumstances and the lack of any substantive merit to an appeal, I am not persuaded that the principle of fairness requires the judgment of the lower court be overturned to return the matter for trial, for the fifth time, on the merits. [ 65 ] This was the Applicant’s claim against the Respondent, and it was her responsibility to pursue it diligently.

The record supports that she has done anything but pursue the matter diligently. [ 66 ] Given all of the above, I am not satisfied the Applicant has established any special circumstances that justify extending the time to file an appeal. CONCLUSION [ 67 ] The application for an extension of time is dismissed. While I am satisfied that the Court has jurisdiction to extend the time to file an appeal with respect to an appeal under the Small Claims Act , applying the principles in Fahey , I am not satisfied it is appropriate to extend time in these circumstances.

Given this, there is no reason to address the issue of a stay of the order for costs. [ 68 ] Application dismissed with costs to the Respondent. _____________________________ Frances J. Knickle Justice