R. v. Peck, 2003 MBCA 55

Court of Appeal of Manitoba Pelisek v. Pelisek Date: 2003-04-03 D.D. Pelisek, appeared in person; M.J. Williams, for the respondent. (AF 02-30-05390; AF 02-30-05429; 2003 MBCA 55) [ 1 ] Philp, J.A.: The applications of the applicant to extend the time to perfect his appeals were dismissed with costs at the hearing. In Coleman v.

Pateman Farn Ltd. et al. (2001), 2001 MBCA 75 (CanLII) , 156 Man.R.(2d) 144; 25 W.A.C. 144 ; 2001 MBCA 75 (C.A.), I have this to say with respect to such an application (at para. 8): "The appellant's motion to extend the time to perfect his appeal is, in effect, an application to set aside the deemed abandonment and to reinstate the appeal. The merits of an appeal is a matter to be considered on a motion for dismissal for delay. See R. v. Peck (J.D.) (1998), 1998 CanLII 28076 (MB CA) , 129 Man.R.(2d) 111; 180 W.A.C. 111, at paras. 23 and 24 (C.A.) .

It has also been accepted as a matter to be considered on a motion to set aside a deemed abandonment under rule 33(4), albeit in an obiter comment. See Dart Holdings Ltd. v . Courtemanche, 1997 CanLII 22775 (MB CA) , [1997] 6 W.W.R. 348 at para. 15 (Man. CA.)." [ 2 ] In this case, the applicant failed to demonstrate that he has an arguable appeal on the merits.

As well, there is nothing on the record that would invoke the overarching concern for the interests of justice so as to entitle the applicant to the relief he seeks in spite of his failure to meet the usual requirements for such an application. [ 3 ] The background circumstances can be briefly stated. On October 21, 2002, the applicant appealed against the order of Diamond, J., made on September 19, 2002, dismissing his application to set aside the noting of default of the respondent's petition for divorce.

Justice Diamond was not requested to stay that order, and the applicant did not seek a stay in this court. [ 4 ] On October 30, 2002, Aquila, J., granted an order dissolving the marriage of the parties effective, unless appealed, 31 days after the making of the order. The applicant's subsequent application to Aquila, J., to stay the divorce judgment was dismissed on November 26, 2002. On November 29, 2002, the applicant appealed against the divorce judgment.

He did not seek a stay of the judgment in this court. [ 5 ] By notices dated February 10, 2003, the Registrar advised the applicant pursuant to Court of Appeal Civil Rule 33(4) that he was in default in filing his factums in both appeals and that the appeals would be deemed abandoned unless perfected in accordance with the rules within 30 days.

The notices were mailed to the applicant the next day and received by him on February 13, 2003. [ 6 ] On March 12, 2003, 30 days after the date of the notices, but only 27 days after the applicant's receipt of them, the Registrar endorsed a note on each court file that the appeal was abandoned. The 30 day period from the date of the applicant's receipt of the notices expired on March 15, 2003, a Saturday. On the following Monday, March 17, 2003, the applicant filed applications pursuant to rule 42 seeking an extension of time to perfect his appeals. [ 7 ] Rule 33(4) provides: "33(4) Where (

a) the appellant's factum has not been filed within the time limits set out in these rules; (

b) no application to extend the time for filing the factum has been made within six months after the receipt by the registrar of the transcript of evidence or, where no transcript is required, the initiating document; and (

c) no date for the hearing of the appeal has been fixed under subrule (3); the registrar shall give notice to the appellant or the appellant's solicitor that, unless he appeal is perfected in accordance with these rules within 30 days after the notice, the appeal will be deemed to be abandoned." [ 8 ] A literal application of rule 33(4) leads to the conclusion that the applicant's appeals were not deemed to be abandoned on March 12, 2003.

Again, the plain meaning of the words of the rule indicates that it is the effluxion of time, not the Registrar's endorsement on the appeal file, that effects the deemed abandonment of an appeal. [ 9 ] In this case, the applicant had not perfected his appeals on March 17, 2003, and they were deemed to be abandoned on that day.

They remain so to this day. [ 10 ] At the hearing before Diamond, J., the applicant did not explain why he had ignored the repeated warnings she had given to him during a hearing some six months earlier of the consequences of his inaction or why he had delayed moving to set aside the noting of default until the eve of the uncontested divorce proceeding.

The divorce proceeding, in the meantime, had been severed from the respondent's application for corollary relief, and no juridical reason was advanced by the applicant at the hearing before Diamond, J., in support of his application to set aside the noting of default. [ 11 ] Those issues remain unexplained on these applications. The merits of an appeal is an issue that must be addressed by all litigants who face the consequences of their delay. The applicant has failed to do so with respect to his application to extend time in each appeal.

[ 12 ] Another factor comes into play on these applications. The respondent obtained certificate of divorce dated March 14, 2003 and remarried on March 17, 2003. A divor judgment is a judgment in rem that affected the status of the parties. The responde remarried in the belief that the divor judgment was effective on March 17, 200 It was, in fact, effective on that day, no withstanding the premature notation of abandonment on the appeal files and the pr mature issue of the certificate of divorc The respondent's status and that of her ne husband are to be protected.

If it were necessary to do so, I would have no hesitation applying the "interests of justice" consideration for that purpose in dismissing the applicant's applications. See Chadderton Chadderton, 1972 CanLII 390 (ON CA) , [1973] 1 O.R. 560; 8 R.F.I 374 (CA.). Applications dismissed