2019 NLCA 19, 2019 NLCA 19

L.H.E. (appellant) v. D.A.E. (applicant/respondent) (18/85) Indexed As: L.H.E. v. D.A.E. 2019 NLCA 19 4 C.A.N.L.R. 272 Court of Appeal of Newfoundland and Labrador Welsh J.A. April 2, 2019

Summary: The respondent filed an application under rule 35 of the Court of Appeal Rules, seeking to have the appellant’s appeal in an uncompleted matter dismissed. The trial judge determined in a

summary trial proceeding that the respondent was liable for a sexual assault of the appellant that occurred when both were children. Held: Application dismissed. Welsh J.A.: It is not common to have an appeal in an uncompleted matter. However, the appeal will be restricted to the issue of whether this was an appropriate case for the

summary trial that was conducted by the judge. A determination on that issue at this stage will set the parameters for future proceedings, providing an efficient and proportionate manner in which to advance the litigation. The appeal can be resolved prior to the continuation of the trial. Counsel: Brittany Whalen, for the appellant; Harry Mugford, for the applicant/respondent. This application was heard and decision rendered orally on April 2, 2019 before Welsh J.A.

The following memorandum of disposition was filed on April 3, 2019 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Ms. E. filed an application, pursuant to rule 35 of the Court of Appeal Rules , seeking to strike the notice of appeal that had been filed by Mr. E. in an uncompleted matter. At the hearing, the application was dismissed, for the reasons that follow. [ 2 ] Ms. E. filed a statement of claim in 2009 alleging that, between 1964 and 1973, her brother, Mr. E., had sexually assaulted her when she was seven years of age and he was fourteen.

She applied for a determination of liability by means of a

summary trial. [ 3 ] Based on an admission in Mr. E.’s examination for discovery regarding two incidents when Ms. E. was seven, the judge granted

summary judgment on the issue of liability. The judge concluded that other allegations of assault made in the statement of claim related only to an assessment of damages requiring viva voce evidence. Mr. E. raised the question of liability by a child, which he says would require a factual basis for determination. [ 4 ] In addition, there is an unresolved issue regarding whether the statement of claim is statute barred by application of the Limitations Act , SNL 1995, c. L-16.1 .

On that point, the trial judge found ( 2018 NLSC 174 ): [11] There is some conflicting testimony [regarding application of the limitation period] from the parties. It is best resolved at trial. If [Ms. E.], at trial, is unable to convince the trial judge that she fits within one of the three subsections of

section 8 of the Act noted above, then the result will be that while there may have been a finding of this Court on the issue of liability, her ability to recover any monetary

compensation in respect of same will have been lost. That will effectively put an end to the litigation since the action will be found to have been statute barred. [ 5 ] A consideration of the limitations issue has been set for a three-day hearing in November 2019. [ 6 ] While it is not common to have an appeal in an uncompleted matter, there are circumstances when an appeal at the interim stage is an efficient and proportionate way to proceed. That is the case here. [ 7 ] The grounds of this appeal all relate to whether this was an appropriate case for the

summary trial that was conducted by the judge. The appeal will be restricted to that issue. In the circumstances, a determination on that issue at this stage will set the parameters for future proceedings, providing an efficient and proportionate manner in which to advance the litigation. [ 8 ] The appeal is set to be heard on Wednesday, May 22, 2019, giving ample time for disposition of the appeal well before the November hearing date that has been set for continuation of the proceedings in the Court appealed from. [ 9 ] In the result, at the hearing, Ms. E.’s application to strike Mr.

E.’s notice of appeal was dismissed with costs of the application to be costs in the cause of the appeal. Application dismissed.