2017 NLCA 8, 2017 NLCA 8

James William Wiscombe (applicant/appellant) v. Sandra Ruth Wiscombe (respondent) (16/126) Indexed As: Wiscombe v. Wiscombe 2017 NLCA 8 1 C.A.N.L.R. 432 Court of Appeal of Newfoundland and Labrador White J.A. February 1, 2017

Summary: Mr. Wiscombe applied to reinstate an appeal which had been deemed abandoned under the Rules of the Supreme Court, 1986 (the “former Rules”) after the passage of 12 months with no steps having been taken. The applicant was appealing an order of the Supreme Court Trial Division (Family) which varied the monthly spousal support payment the applicant was to pay to his former wife from $3000 to $6344. Held: Application allowed.

White J.A.: The application is governed by rule 17(9) the new Court of Appeal Rules , NLR 38/16, which replaced the former Rules on October 17, 2016 and have been determined to apply when a reinstatement application is made in respect of an appeal deemed abandoned prior to that date.

The same considerations continue to be relevant to an analysis under Rule 17(9) as under the former Rules including whether the appeal can be said to be frivolous or vexatious, in the sense that there is no arguable case; whether, prior to its deemed abandonment, the appellant had a bona fide intention to proceed with the appeal; whether there is a reasonable excuse for the failure to proceed with the appeal prior to the deemed abandonment; timeliness of the application for reinstatement after receipt of notice of deemed abandonment; and the presence of any exceptional or special circumstances justifying or working against the fairness of reinstatement.

The bar for reinstatement is relatively low unless there is significant prejudice to the other side or the appellant has engaged in deliberate delaying tactics. The appeal is not frivolous. There are arguments to be made about the approach used by the trial judge to calculate the amount of spousal support due. Mr. Wiscombe had a bona fide intention to proceed with the appeal before the abandonment. Difficulties arose from the preparation of the transcript and the matter seems to have been put off and overlooked. There was no communication with the Court registry about any plans to move forward with the appeal.

It is not clear why a lengthy transcript is required in order to argue the issues raised. The new Rules require an appellant to file only those excerpts of the transcript which are necessary to determine the issues on appeal (rule 47).There was no reasonable excuse for the failure to proceed with the appeal, but the circumstances were not egregious or an abuse of the Court’s process.

As to the timeliness of the application, the general rule has been to consider the timeliness of the application to reinstate relative to the time that the applicant received the notice from the registry that the appeal had been abandoned, but the overall timeliness of the application is also relevant. To evaluate the timeliness of the application, it must therefore be determined when the appeal was actually deemed abandoned under the former Rules.

One way to interpret former rule 57.20 is that upon the passage of 12 months from the date of the last step taken, the appeal was deemed abandoned by operation of law and the registrar’s recording and notice were merely administrative steps.

Another way to interpret rule 57.20 is that the operative date for the abandonment is the date on which the registrar chooses to record the abandonment after the passage of 12 months from the last step taken in the appeal. It is not necessary to finally decide this question in this case, even though the same language appears in new rule 17. Mr. Wiscombe applied to reinstate the appeal in a timely manner. He applied shortly after he received the notice of deemed abandonment and the case does not involve urgent matters or children.

The parties did not identify any exceptional circumstances militating for or against reinstating the appeal, but the day that the Court registry chose to act to record the abandonment of the appeal was one day before the coming into force of a Rule which perhaps would have permitted greater flexibility, which created some unfairness to Mr. Wiscombe. This is an exceptional circumstance. There is some prejudice to Ms. Wiscombe as she has organized her affairs relying on the trial judgment, but this can be cured by a subsequent order. Moreover, Ms.

Wiscombe did not take any steps to have the appeal heard or inquire into its status. The obligation to proceed with an appeal lies primarily on the appellant, a respondent who is content to take a wait-and-see approach may have more difficulty establishing that they have suffered prejudice. Looking at the matter globally, more factors favour the reinstatement than not and the appeal should be reinstated. Cases cited: Atlantic Lottery Corporation Inc. - Societé de Loteries de l'Atlantique v. Babstock , 2016 NLCA 64 Ellis v. Pelley Estate, 2016 NLCA 77 Burgess v.

Burgess , 2015 NLCA 39 , 371 Nfld. & P.E.I.R. 1 Tucker v. AXA General Insurance , 2014 NLCA 36 , 355 Nfld. & P.E.I.R. 354 Counsel: Donald MacBeath Q.C., for the applicant/appellant; Sandra Burke Q.C., for the respondent. This application was heard on January 10, 2017 by White J.A. The following judgment was delivered on February 1, 2017 by White J.A. ______________________________________________________________ White J.A.: [ 1 ] Mr.

Wiscombe applies to reinstate an appeal of a May 8, 2015 order of the Supreme Court Trial Division (Family) which varied the monthly spousal support payment he is to pay to his former wife, Ms. Wiscombe from $3000 to $6344. [ 2 ] The parties were married for approximately 30 years and have two independent adult children. Throughout the marriage, the parties worked for an insurance company started by Mr. Wiscombe’s father. When Mr. Wiscombe’s father passed away, the business was sold and Mr. Wiscombe retired. Ms.

Wiscombe upgraded her education and now works for the provincial government. [ 3 ] The parties separated in 2008 and were finally divorced on March 6, 2012. They reached a settlement over issues of property division and support on December 9, 2011. The consent order provided that Mr. Wiscombe would pay Ms. Wiscombe spousal support in the amount of $3000 subject to review in 2013. When the time came to do the review, Mr. Wiscombe asked that the spousal support order be terminated. Ms. Wiscombe asked for an increase in the amount of support. The applications judge found in Ms. Wiscombe’s favour and ordered Mr.

Wiscombe to pay $6344 per month for an indefinite period. [ 4 ] Although Mr. Wiscombe filed a notice of appeal on May 28, 2015, the appeal was never perfected and a notice that it was deemed abandoned was sent by the registry on October 14, 2016 pursuant to rule 57.20 of the Rules of the Supreme Court, 1986 (the

“former Rules”). [ 5 ] Mr. Wiscombe filed his application for reinstatement on December 28, 2016. His application is now governed by Rule 17(9) the new Court of Appeal Rules , NLR 38/16, which replaced the former Rules on October 17, 2016 and have been determined to apply when a reinstatement application is made in respect of an appeal deemed abandoned prior to that date ( Atlantic Lottery Corporation Inc. - Societé de Loteries de l'Atlantique v. Babstock , 2016 NLCA 64 at para. 8 ). [ 6 ] As explained recently in Ellis v.

Pelley Estate , 2016 NLCA 77 at paragraph 5 , the same considerations continue to be relevant to an analysis under Rule 17(9) as under the former rules: [5] The relevant rule here is rule 17(9) which provides for reinstatement upon terms the Court considers just. The rule does not list factors to be considered in determining whether reinstatement should be ordered. On this point, judicial authority under the former rules provides assistance. In Law Society of Newfoundland v.

Fahey , 2003 NLCA 8 , 221 Nfld. & P.E.I.R. 79 , Wells C.J.N.L., for the Court, wrote: [13] … [U]ltimately, the decision to be made is “whether, considering the merits of the case and all other relevant matters, it is in the interest of justice that the appeal be reinstated or left [abandoned]”. That is, essentially, another way of saying where, in the opinion of the Court, refusal to do so would create an injustice . In either case, the decision can only be judicially arrived at as a result of consideration of factors such as: 1.

Whether the appeal can be said to be frivolous or vexatious, in the sense that there is no arguable case; 2. Whether, prior to its deemed abandonment, the appellant had a bona fide intention to proceed with the appeal; 3. Whether there is a reasonable excuse for the failure to proceed with the appeal prior to the deemed abandonment; 4. Timeliness of the application for reinstatement after receipt of notice of deemed abandonment; and 5.

The presence of any exceptional or special circumstances justifying or working against the fairness of reinstatement. … [S]uch factors should not be considered to constitute, exclusively, “the test” for every case. However, the first four are clearly core considerations properly to be applied in virtually every case. The fifth category … should be broad enough to include prejudice to a party, in the specific circumstances of the case, as well as any other special circumstance which justice would require should be considered in a particular case. (Italics in the original.) ( See also Burgess v.

Burgess , 2015 NLCA 39 , 371 Nfld. & P.E.I.R. 1 at paras. 7-8 ) [ 7 ] As noted in Tucker v. AXA General Insurance , 2014 NLCA 36 , 355 Nfld & PEIR 354 at para. 12 , the bar for reinstatement is relatively low unless there is significant prejudice to the other side or the appellant has engaged in deliberate delaying tactics. Arguable case [ 8 ] Having heard the submissions of counsel and reviewed the reasons for judgment of the trial judge and the notice of appeal, I conclude that the appeal is not frivolous.

There are arguments to be made about the approach used by the trial judge to calculate the amount of spousal support due. For example, the appellant alleges it was an error for the trial judge to rely on an average of Mr.

Wiscombe’s income for the past ten years to calculate the spousal support due since he had since retired and the insurance business where he had worked was sold. This factor favours reinstating the appeal. Bona fide intention to appeal [ 9 ] I accept that Mr. Wiscombe had a bona fide intention to proceed with the appeal before the abandonment. Although Ms.

Wiscombe’s counsel correctly points out that there were delays in proceeding, in this case these are more properly considered under the next factor, whether there was any reasonable excuse for the failure to proceed, rather than as objective evidence which negates the bona fide intention to proceed with the appeal. I reach this conclusion because Mr. Wiscombe filed his notice of appeal within the proper timelines and was making some efforts to prepare the transcript. The failure to proceed was due to inadvertence on the part of his counsel rather than the lack of the intention to proceed with the appeal.

This factor favours reinstating the appeal. Reasonable excuse for failure to proceed [ 10 ] Mr. Wiscombe’s counsel has explained his efforts to prepare a transcript, which do not appear to have been successful. As difficulties arose, the matter seems to have been put off and overlooked. There was no communication with the Court registry about any plans to move forward with the appeal. While I do not consider that there was any reasonable excuse for the failure to proceed with the appeal, the circumstances cannot be described as egregious or an abuse of the Court’s process. [ 11 ] I also agree with counsel for Ms.

Wiscombe that there was no reason that the preparation of the transcript had to take as long as it did. Mr. Wiscombe may argue his income is now less than what it was, but it is sufficient to pay for a transcript for this appeal. I hasten to add that, at this point, it is not clear to me why a lengthy transcript is required in order to argue the issues raised. The trial judge gave thorough and extensive reasons and most of the grounds for the appeal raised by Mr. Wiscombe allege errors of law or principle. Only two grounds of appeal – that the judge erred in finding that Ms.

Wiscombe had suffered an economic disadvantage from the marriage and had not yet become self-sufficient, as well as finding that her life had transformed calamitously – concern factual findings with which a transcript may assist, but even this is not obvious. I note that the new Rules require an appellant to file only those excerpts of the transcript which are necessary to determine the issues on appeal (Rule 47). [ 12 ] Overall, this factor does not favour the reinstatement of the appeal. Timeliness of the reinstatement application [ 13 ] Mr.

Wiscombe argues that he applied in a timely way to reinstate the appeal upon receipt of notice that it had been deemed abandoned. Ms. Wiscombe argues that the appeal was deemed abandoned on May 28, 2016 and the application is not therefore timely. [ 14 ] While the general rule has been to consider the timeliness of the application to reinstate relative to the time that the applicant received the notice from the registry that the appeal had been abandoned, the overall timeliness of the application is also relevant.

It is common practice, as in this case, for the registry to wait several months before notifying the parties that the appeal is deemed abandoned. To evaluate the timeliness of the application, it must therefore be determined when the appeal was actually deemed abandoned under the former Rules. Was the operative date the date on which 12 months had passed from the last step taken at which point the appeal was deemed abandoned by law, or was it the date the registrar recorded the abandonment, or even the date the register sent out the notice?

In practice, parties before this Court have often relied on the notice from the registrar and the registry has continued to accept documents for filing past the 12 month deadline where there were no objections. [ 15 ] Rule 57.20 read: Striking Out and Deemed Abandonment of Appeals 57.20. …

(4) Where on a pending appeal, in respect of which the notice of appeal was filed after January 1, 2000, 12 months have passed since the last step was taken and no order has been made pursuant to rule 57.20(2), the appeal shall be deemed to have been abandoned, the Registrar shall record the abandonment and the respondent shall be entitled to costs. …

(6) Upon recording abandonment of any such appeal under rules 57.20(4) and (5), the Registrar shall send notice by ordinary mail or by facsimile transmission to the solicitors of record or to the parties at the last known addresses of such solicitors or parties as indicated in the documents filed in the appeal. In the case of appeals referred to in rule 57.20(5) the Registrar shall, within three months of entry of such abandonment, publish notice of the same in the Newfoundland and Labrador Gazette, which notice may be a single notice containing a list of all such appeals abandoned during the preceding three months.

(7) Inability or failure of the Registrar to effect any notice required by rule 57.20(6) shall not affect the deemed abandonment of an appeal.

(8) No proceedings shall thereafter be taken in any appeal deemed abandoned pursuant to rules 57.20(4) or (5) unless the same shall have been re-instated by the Court, which the Court may do on such terms as the Court deems just, which terms may include the payment to the respondent or respondents of costs to date on a solicitor and client basis, which the Court may order be paid by the solicitor who filed the notice of appeal or any solicitor named in a notice of change of solicitors, or both, personally if the Court is satisfied that the solicitor or solicitors is or are responsible for the failure to have proceeded with the appeal on a timely basis.

(9) The Court may, on application by a party prior to the date on which the appeal would be deemed to be abandoned, extend the date of deemed abandonment to such later date as may be appropriate. (Emphasis added) [ 16 ] One way to interpret former Rule 57.20 is that upon the passage of 12 months from the date of the last step taken, the appeal was deemed abandoned by operation of law and the registrar’s recording and notice were merely administrative steps which did not affect the abandonment of the appeal. [ 17 ] Another way to interpret Rule 57.20 is that the operative date for the abandonment is the date on which the registrar chooses to record the abandonment after the passage of 12 months from the last step taken in the appeal. [ 18 ] In practice, the recording and the notice by the registrar often happened simultaneously and parties treated the date of the notice as the date of the deemed abandonment. [ 19 ] I do not consider it necessary to finally decide this question in this case, even though the same language appears in new Rule 17.

I accept that Mr. Wiscombe has applied to reinstate the appeal in a timely manner. First he applied shortly after he received the notice of deemed abandonment. This was consistent with the general practice of treating the date of such a notice as the date of abandonment. Moreover, given the facts of this case which do not involve urgent matters or children, I consider that the application was brought within a reasonable time overall. [ 20 ] This factor favours reinstating the appeal.

Exceptional circumstances [ 21 ] The parties did not identify any exceptional circumstances militating for or against reinstating the appeal. I would note that the notice that the appeal was deemed abandoned is dated October 14, 2016, one business day before the new Rules came into force. Had the notice from the registry been sent out on the next business day, it is arguable that under the new Rule 17, Mr. Wiscombe would have had 60 days to respond with a proposed plan before the appeal was to be finally deemed abandoned.

Although by October 14, 2016 the appeal was well past the day on which the Court could have sent the notice deeming it abandoned for non-compliance with the former

Rules, I do consider that there is some unfairness to Mr. Wiscombe arising out of these circumstances. The day that the Court registry chose to act to record the abandonment of the appeal was one day before the coming into force of a Rule which perhaps would have permitted greater flexibility. I note that I am not suggesting a final answer to the issue of what would have occurred had the registry notice been sent after the coming into force of the new Rules. If the situation arises in the future, the Court may give directions under Rule 60(2).

I do, however, consider this an exceptional circumstance which militates in favour of reinstatement. [ 22 ] In terms of the prejudice to Ms. Wiscombe, which is also to be considered under this factor, I accept that she has organized her affairs relying on the trial judgment. However, Mr. Wiscombe has been complying with the order pending the appeal. If Ms. Wiscombe’s position prevails on appeal, she will have received what she is entitled to. If Mr. Wiscombe prevails, the Court can make an order to minimize financial prejudice to her and achieve fairness between the parties. There is also no evidence that Ms.

Wiscombe took any steps to have the appeal heard and disposed of while it was still pending or that she made any inquiry about the status of the appeal. While the obligation to proceed with an appeal lies primarily on the appellant, a respondent who is content to take a “wait-and-see” approach may, depending on the circumstances, have more difficulty establishing that they have suffered prejudice when an appeal still has not been disposed of after a significant amount of time. Overall, I am not satisfied that there is prejudice to Ms.

Wiscombe which cannot be cured by a subsequent order. [ 23 ] Therefore, this factor favours reinstating the appeal. Conclusion [ 24 ] Looking at the matter globally, the appeal should be reinstated. While Mr. Wiscombe failed to proceed in a timely manner without reasonable excuse, other factors indicate that justice is served by permitting him to have his day in court to argue the appeal. Any prejudice accruing to Ms. Wiscombe is not sufficient in this case to override the interests of justice in having the appeal heard. [ 25 ] The appeal is therefore reinstated.

As per the plan filed by the appellant, the transcript, appeal book and factum will be filed by February 28, 2017. The respondent’s materials will be filed in accordance with the Rules and a date for the appeal shall be set promptly thereafter. [ 26 ] Mr. Wiscombe agrees that he should pay Ms. Wiscombe’s party-and-party costs for this application, since it would not have been necessary but for his delay in pursuing the appeal. It is so ordered. Appeal allowed.