Henry Espina v Martineau, 2024 ABCA 18

In the Court of Appeal of Alberta Citation: Henry Espina v Martineau, 2024 ABCA 18 Date: 20240118 Docket: 2301-0099AC Registry: Calgary Between: Siobhan Henry Espina Appellant - and - Emma Martineau Respondent __________________________________ _____________________ The Court: The Honourable Justice Jolaine Antonio The Honourable Justice Kevin Feehan The Honourable Justice Jane A. Fagnan _______________________________________________________ Memorandum of Judgment Appeal from the Orders of The Honourable Justice J.C. Kubik Dated the 19th day of April, 2023

Filed on the 27th day of April, 2023 ( Docket: FL06 04173) The Honourable Justice D.V. Hartigan Dated the 26th day of May, 2023 Filed on the 31st day of May, 2023 ( Docket: FL06 04173) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Introduction [ 1 ] The appellant appeals two orders adjourning a review hearing of an emergency protection order (EPO). The appeal is dismissed. II.

Facts [ 2 ] On April 12, 2023, an RCMP constable appeared on behalf of the respondent before a justice of the peace seeking an ex parte EPO restraining the appellant from communicating with or contacting the respondent. The justice of the peace granted the order pursuant to

section 2 of the Protection Against Family Violence Act , RSA 2000, c P-27 [ PAFVA ] and set April 19 as the date for review by a King’s Bench judge. The next day, the appellant was served the EPO. She prepared an affidavit in response, opposing the order. [ 3 ] On April 19, the parties appeared before Justice Kubik. Counsel for the respondent asked that the EPO be confirmed and extended for a year. Counsel for the appellant asked that the order be revoked.

Justice Kubik queried whether the matter should go before Justice Hartigan, as he was case managing other litigation involving the family, and there seemed to be a factual nexus between that litigation and the allegations underpinning the EPO. She noted Justice Hartigan “has all of the historic background about the difficulties that these parties ... have experienced”. She noted the parties were “on opposing sides of this” and concluded the EPO review would ultimately require an oral hearing as contemplated by section 3(4) (

b) of the PAFVA . [ 4 ] Justice Kubik identified two options, that the matter either proceed directly to an oral hearing, or first be put in front of Justice Hartigan for direction. On being advised that a date for an oral hearing would not be available for some time, counsel for the appellant submitted the matter should be put in front of Justice Hartigan. As a result, Justice Kubik directed the review of the EPO “be adjourned and extended on a Without Prejudice basis” to May 26 for the parties to attend before Justice Hartigan.

She reiterated the terms of the original EPO with minor modification. [ 5 ] On May 26, the parties appeared before Justice Hartigan. Justice Hartigan noted the appellant “denies the allegations... or has a different version of the events” and directed that review of the EPO be adjourned to October 6 for an oral hearing. Justice Hartigan set out a procedure for the exchange of further affidavits.

He extended the EPO on the same terms as in Justice Kubik’s order. [ 6 ] On June 14, the appellant filed an amended notice of appeal appealing both the Kubik and Hartigan orders, alleging both judges erred by adjourning the review hearings and extending the EPO without conducting a substantive review. [ 7 ] On October 6, the parties consented to an order vacating the EPO and replacing it with a mutual restraining order.

III. Issues on Appeal [8] Two preliminary issues arise: was the appellant required to seek permission to appeal; and should the appeal proceed despitethe EPO now having been vacated. [9] On the merits, the appellant submits the chambers judges erred by adjourning the review hearing and extending the EPOorder without conducting a full review and without determining whether to “confirm” or “revoke” the order. Counsel argues a fullhearing and those determinations were required within nine working days on his

interpretation of sections 2(6), 3(3) and 3(4) of thePAFVA. Since that did not occur, he says the EPO issued by the justice of the peace should not have been extended by order of the Courtof King’s Bench and should have ceased to have effect. IV. Analysis [10] Rule 14.5(1) of the Alberta Rules of Court, Alta Reg 124/2010 provides that “no appeal is allowed to the Court of Appealfrom the following types of decisions unless permission to appeal has been obtained: ... (

b) any pre-trial decision respectingadjournments, time periods or time limits”. Both the Kubik and Hartigan orders adjourned review of the EPO and therefore weredecisions respecting adjournments. [11] The appellant argues that because the orders not only adjourned the review, but also “extended” the original EPO, they didnot relate only to adjournments. We disagree. The extensions were a consequence of the adjournments. Until the review could becompleted, the status quo ante remained in place.

The original EPO granted by the justice of the peace was, by its own terms, set tocontinue until October 2023. [12] Therefore, permission to appeal was required. As it was neither sought nor obtained, the appeal must be dismissed for want ofjurisdiction. Even if the appellant had sought permission to appeal, it would not have been granted. Permission to appeal requires theappellant to establish, among other things, that she has a reasonable chance of success on the appeal: Rath & Company Barristers &Solicitors v Sturgeon Lake Cree Nation, 2022 ABCA 373 at para 14.

She did not have a reasonable chance of success, in part because herappeal is moot. [13] An appeal is moot if “no present live controversy exists which affects the rights of the parties” and the “tangible and concretedispute has disappeared and the issues have become academic”: Borowski v Canada (Attorney General), (SCC), [1989]1 SCR 342 at 353, 57 DLR (4th) 231 [Borowski].

Since the EPO was vacated by the October 6 consent order, the tangible and concretedispute in this case has disappeared and there is no present live controversy. [14] In her notice of appeal, the appellant identified the relief sought as the revocation of the EPO. That has now been reached byconsent. The appellant also sought a review of the EPO; that is now unnecessary as a result of the consent order.

At the oral hearing ofthe appeal, counsel for the respondent observed that for the parties, “this court’s decision whatever it may be doesn’t change anything”.Counsel for the appellant acknowledged, “it would make little sense given the circumstances to argue an appeal except for the purposeof clarifying this area of the law for the practitioners and the judiciary.” [15] Of course, this Court has discretion to decide a moot appeal, but we decline to do so in this case.

The relevant factors inexercising that discretion are the presence of an adversarial context; concern for judicial resources; and awareness of the court's properlaw-making function: Borowski at 358-363. In brief, no adversarial context remains and we are not satisfied judicial economy favours anappeal. Finally, the role the appellant now asks us to play is not limited to interpreting legislation and applying it to the facts. [16] In sum, absent a grant of permission, the panel has no jurisdiction to decide the appeal. In any event, the appeal is moot. V. Conclusion [17] The appeal is dismissed.

Appeal heard on December 4, 2023 Memorandum filed at Calgary, Alberta this 18th day of January, 2024 Antonio J.A.

Authorized to sign for: Feehan J.A. Authorized to sign for: Fagnan J.A. Appearances: J.D. Evans, KC for the Appellant M.M. Hanson for the Respondent