2021 NLCA 38, 2021 NLCA 38

Peter Austin (applicant/appellant) v. Darlene Dunne (respondent) (21/38) Indexed As: Austin v. Dunne 2021 NLCA 38 6 C.A.N.L.R. 693 Court of Appeal of Newfoundland and Labrador Welsh J.A. June 24, 2021

Summary: Peter Austin sought leave to appeal a consent order regarding the sale of a house in which he resided. However, Mr. Austin did not filehis application for leave within the prescribed limitation period. As a result, he applied for an extension of time to file his application forleave to appeal and the notice of appeal. Held: Application for leave to appeal and application for an extension of time dismissed. Welsh J.A.: The application for extension of time to proceed with the appeal is integrally connected to the application for leave to appealthe consent order. There was no basis to conclude that Mr.

Austin misapprehended the effect of his consent to the order, nor did theevidence support a conclusion that his consent was not voluntary, that he was under duress, or that he failed to appreciate the bindingnature of the consent order. Accordingly, the application for leave to appeal the consent order was dismissed, as was the application foran extension of time to file the application for leave and the notice of appeal (paragraphs 8-21). Cases cited: Law Society of Newfoundland v. Fahey, 2000 NFCA 19 Upshall v. Hickey, 2013 NLCA 59, 341 Nfld. & P.E.I.R. 350 Stacey v.

Seabright, 2010 NLCA 72, 302 Nfld. & P.E.I.R. 189 Beanland v. Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.) Rules considered: Rules of the Court of Appeal, NLR 38/16, rules 7(n), 8(2)(b), 14, and 34(1) Rules of the Supreme Court, 1986, rule 39C.01 Counsel: Appearing on his own behalf, the applicant/appellant; Johnathan E. Earle, for the respondent. The application was heard on June 14, 2021 before Welsh J.A. The following judgment was filed on June 24, 2021 by Welsh J.A.

The following judgment was filed on June 24, 2021 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Peter Austin seeks leave to appeal a consent order which the parties endorsed on April 7, 2021. However, because his application for leave to appeal and notice of appeal were not filed within the prescribed limitation period, he must first obtain an extension of time within which to file those documents. BACKGROUND [ 2 ] The dispute before this Court relates to the sale of a house.

Following a settlement conference, at which both parties were represented by counsel, the parties agreed to a consent order, which is dated April 7, 2021, and which was filed with the Court on April 13, 2021. [ 3 ] While the consent order was signed by counsel on behalf of their clients, I was advised by counsel for Ms. Dunne that the parties had the opportunity to participate during the conference, and that Mr. Austin and his counsel requested changes to the order as it was developed. The order is in plain language and is not difficult to understand. I was satisfied from hearing Mr.

Austin’s submissions on his own behalf in this Court that he is capable of understanding procedures relative to selling the property. [ 4 ] Mr. Austin complained that he was being evicted from the property on short notice. However, when questioned, I am satisfied that he knew that, in accordance with the consent order, he could stay in the house pending the sale “subject to him paying for the mortgage which is $205.42 every two weeks and the monthly insurance premium on the Property” (consent order, at paragraph 7). [ 5 ] I understand from Mr.

Austin’s submissions that he is in agreement with selling the property, but that he objects to a sale through a real estate agent which would reduce his potential share of the proceeds. [ 6 ] The main purpose of the consent order was to permit the sale of the property, with disposition of the proceeds to be determined following a binding mini-trial (consent order, at paragraph 16). Mr. Austin failed to attend court for the hearing of the mini-trial scheduled for June 8, 2021. [ 7 ] Finally, I note that, after the notice of appeal and application for leave to appeal were filed, Mr.

Austin’s counsel successfully applied to withdraw as his solicitor of record. ANALYSIS [ 8 ] In the circumstances of this case, the application for an extension of time to proceed with an appeal is integrally connected to the application for leave to appeal the consent order. I begin with the fact that this is an uncompleted matter, that is, “a matter where the issues between the parties have not been determined by a final decision or order in the court appealed from” ( rule 7 (

n) of the Court of Appeal Rules , NLR 38/16 ). In particular, there has been no sale of the property and no determination regarding disposition of the proceeds of sale. [ 9 ] In an uncompleted matter, the notice of appeal must be filed “within 10 days after the order appealed from has been filed in the court appealed from” ( rule 8(2) (b)). In this case, the order was filed on April 13, 2021. Mr. Austin filed his notice of appeal on May 7, 2021, which is outside the ten-day period.

On application, the Court may extend the time prescribed by the rules ( rule 14 ). [ 10 ] Factors relevant in assessing an application to extend the time for filing a notice of appeal are discussed in Law Society of Newfoundland v. Fahey , 2000 NFCA 19 : [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. See also Upshall v.

Hickey , 2013 NLCA 59 , 341 Nfld. & P.E.I.R. 350 , at paragraph 6 . [ 11 ] In the circumstances of this case, the analysis focuses on the potential merits of the appeal. In particular, in order to proceed, Mr. Austin is required to obtain leave to appeal the consent order ( rule 34(1) of the Court of Appeal Rules ). The parties were given notice by the Court that this issue would be considered at the hearing of Mr.

Austin’s application to extend the time for filing a notice of appeal. [ 12 ] In the context of a consent order, factors that may be taken into account in determining whether leave should be granted are discussed in Stacey v. Seabright , 2010 NLCA 72 , 302 Nfld. & P.E.I.R. 189 : [22] There is nothing to indicate that Stacey was acting under any material misapprehension as to the effect of giving consent or acting on a false factual premise, or that his consent was not otherwise voluntarily given. ...

[13] In Beanland v. Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.), Green J.A., for the Court,stated the rationale for the reluctance to set aside a consent order: [40] ... The “general rule” as stated by Cameron, J.A., in this court in McLean et al. v. Carr Estate et al. (1996), (NL CA), 142 Nfld. & P.E.I.R. 25; 445 A.P.R. 25; 138 D.L.R. (4th) 541, is that a final decision of a court cannot be reopened. This isespecially so where the order is made on consent because in such circumstances, it is based upon the contract of the parties. ... [14] In Upshall v.

Hickey, supra, Green C.J.N.L. identified reasons why a court order may be set aside: [12] ... in the case of a consent order, by alleging that the agreement upon which the consent order was based is vitiated by fraud,duress, undue influence, common mistake, misrepresentation, lack of consent or illegality ... . [15] Once a consent order reached between the parties or as a result of a settlement conference has been filed, it becomes an order ofthe court. [16] In this case, in his application for leave to appeal the consent order, Mr.

Austin submits that he felt he had no choice but to acceptthe consent order, that he was under duress, and that he failed to appreciate the binding nature of the consent order. However, Mr.Austin has failed to provide any facts to support those submissions. Both parties had legal counsel throughout. At any time, Mr. Austinand his counsel could have withdrawn from the settlement discussions. He and his counsel succeeded in having changes made beforethe document was finalized. Further, Mr.

Austin complied with the terms of the order during the initial period of approximately thirtydays. [17] The information provided to this Court indicates simply that Mr. Austin changed his mind after the consent order was endorsedby the parties and filed with the court. Mr. Austin has provided nothing from which to conclude that he misapprehended the effect of hisconsent to the order or that he was acting on a false factual premise. The facts do not support a conclusion that his consent was notvoluntary.

He has provided no basis for his suggestion that he was under duress or did not understand that the consent order, onceendorsed, would be filed with the court and would be binding. [18] The issues being determined were not complex. Mr. Austin has indicated that he agrees that the property should be sold. Henow says that he is not in favour of a binding mini-trial. The agreement that the mini-trial would have binding effect would have beenan important consideration during settlement discussions. Ordinarily a mini-trial provides the parties with an opinion, but is notbinding.

Rule 39C.01 of the Rules of the Supreme Court, 1986 specifies: The purpose of a mini-trial is to allow the parties to attend before a judge who shall, in private and without receiving sworn or affirmedevidence, give a non-binding opinion on the probable outcome of a trial of the proceeding. [19] Mr. Austin complains that he will not have the opportunity to present evidence at the mini-trial. However, this does not meanthat he will not have an opportunity to present his side of the case.

The judge would consider the facts put forward by each party withthe expectation that the parties would have the evidence to substantiate their positions.

If the judge was satisfied that he could not makea determination on the basis of the information provided by the parties, particularly where his decision was to be binding, he would havethe authority to conclude that the matter could not be decided by means of a mini-trial. [20] Further, while the rule is directed to the conduct of proceedings without sworn or affirmed evidence, if, in circumstances such asthis, the parties agreed to provide, or if the judge agreed to accept, affidavits, the rule would not preclude that option. [21] Mr.

Austin has not provided any basis on which to conclude that he should be granted leave to appeal the consent order. Giventhat result, it follows that there would be no value in granting an extension of time within which to file the documents. DISPOSITION [22] Accordingly, the application for leave to appeal the consent order is dismissed. In addition, the application for an extension oftime to file the notice of appeal and leave to appeal is dismissed. Ms. Dunne shall have her costs under column 3 of the scale of costs inthe Court of Appeal Rules. Application for leave to appeal and extension of time dismissed.