2017 NLCA 44, 2017 NLCA 44

Stuart Pearce (appellant/applicant) v. Paul Anderson (first respondent) and Gerald Duhart (second respondent/applicant) (17/48) Indexed As: Pearce v. Anderson 2017 NLCA 44 2 C.A.N.L.R. 101 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and Hoegg JJ.A. July 17, 2017

Summary: Mr. Pearce lived in a property owned by Mr. Anderson from 2006. Mr. Anderson decided to sell the property and permitted the potential buyer, Mr. Duhart, to do work. Mr. Pearce did not want to move from the property and the presence of Mr. Duhart did not sit well with him. The relations between the three men deteriorated. Mr. Pearce filed suit seeking to have title to the property transferred to him and damages in the amount of $20,000 each from Mr. Anderson and Mr. Duhart. His suit was dismissed. The trial judge found there was no agreement between Mr. Pearce and Mr.

Anderson that could result in transfer of the property and the damages claim was not proven. Mr. Pearce appealed and applied for stay of the order pending appeal. Mr. Duhart filed an application to strike or dismiss Mr. Pearce’s appeal on the basis that it had no merit, which was supported by Mr. Anderson. Held: Application to strike allowed, application for stay dismissed, appeal dismissed. Hoegg J.A. (Welsh and Harrington JJ.A. concurring): Rule 36(1) of the Court of Appeal Rules, NLR 38/16 provides for the dismissal of an appeal on the grounds that it is frivolous, vexatious, or without merit.

Subsections (2) and (3) of rule 36 are pertinent to describing the difference between dismissing an appeal and striking out a Notice of Appeal. An application to dismiss an appeal shall be heard and determined by a panel of not fewer than 3 judges sitting together. However, a notice of appeal may be struck out by a single judge, and where a notice of appeal has been struck out, the appellant may apply within 6 months to have the notice reinstated for good reason. The law under the former Rules is of assistance.

An appellate court considering a dismissal application must carefully review the grounds of appeal, the record, and the trial judge’s reasons so as to identify the existence of any arguable merit supporting the appeal. If, after such a review, it is plain and obvious that the appeal cannot succeed, it will be dismissed. In this case, Mr. Pearce’s appeal was dismissed because it was plain and obvious that it could not succeed. The sole ground of appeal in Mr. Pearce’s Notice of Appeal - that the Judge had promised to subpoena and interview a witness concerning Mr.

Pearce’s payment of taxes on the property before rendering his decision - had no merit. Nor did the panel’s review of the record and the Judge’s decision disclose any issue which could be argued on appeal. Thus, the appeal was dismissed. Given the result, it was unnecessary to decide Mr. Pearce’s stay application. Cases cited: Walsh v. Johnson, 2010 NLCA 6 , 293 Nfld. & P.E.I.R. 101

Counsel: Appearing on his own behalf, the appellant/applicant; Appearing on his own behalf, the first respondent; Appearing on his own behalf, the second respondent/applicant. This appeal was heard on June 29, 2017 before Welsh, Harrington and Hoegg JJ.A. and the decision was rendered orally on that date.

The following reasons for decision were filed on July 17, 2017 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [ 1 ] This matter involves an application by the appellant, Stuart Pearce to stay the decision of a Supreme Court Justice dismissing his claims against Paul Anderson and Gerald Duhart pending disposition of his appeal, as well as an application by Mr. Duhart supported by Mr. Anderson to dismiss Mr. Pearce’s appeal.

BACKGROUND [ 2 ] This matter involves a long-standing dispute between Stuart Pearce and Paul Anderson over a property situated at Port-aux- Basques, Newfoundland and Labrador. Mr. Anderson held title to the property, and permitted Mr. Pearce to live there on terms from 2006 until Mr. Anderson served an eviction notice on Mr. Pearce sometime between 2013 and 2015. Mr. Pearce did not vacate the property. Mr. Anderson sold the property to Gerald Duhart shortly before this appeal was heard in June 2017. [ 3 ] In 2013 Mr. Anderson had become interested in selling the property to Mr.

Duhart, and to this end permitted Mr. Duhart to do some work on it. Mr. Duhart’s presence on the property did not sit well with Mr. Pearce, who did not want to move from the property and in fact claimed it was his by agreement with Mr. Anderson. Matters between Mr. Pearce and the other two men degenerated, and there were complaints to the police and peace bond applications. In 2013 Mr. Pearce filed suit in the Supreme Court Trial Division seeking to have title to the property transferred to him and damages in the amount of $20,000 each from Mr. Anderson and Mr. Duhart. [ 4 ] At trial, the Judge dismissed Mr.

Pearce’s suit (2017 NLTD(G) 81). He found that there was no agreement between Mr. Pearce and Mr. Anderson that could result in transfer of the property to Mr. Pearce, saying, at paragraphs 77 and 78: I am satisfied, on a careful review of the evidence, that there was no agreement between Mr. Pearce and Mr. Anderson that would result in the transfer of the property. The parties agreed on Mr. Pearce living in the property, maintaining it and paying the arrears of taxes. Mr. Pearce argued that the property was to be transferred to him on that basis. Mr.

Anderson explained that he never had any intention of transferring the property to Mr. Pearce. He was only looking for someone to move into the property, maintain it and pay the property taxes in lieu of rent. I conclude that the parties did not agree on the transfer of the property. In my view, it is not reasonable or plausible for Mr. Pearce to believe that Mr. Anderson was going to transfer his property to Mr. Pearce, a complete stranger to him, by the latter simply paying the arrears of taxes and maintaining the property. [ 5 ] The Judge also ruled that Mr. Pearce had not proved his damages claim against Mr.

Anderson, saying, at paragraph 82: Mr. Pearce has obtained the benefit of a property in which to live since 2006 by maintaining and paying the taxes. Mr. Anderson has had the benefit of Mr. Pearce living in the property, maintaining it and paying the taxes without any rent being paid. It was not an agreement for the transfer of the property. Based on this arrangement, I find there are no grounds for Mr. Pearce to be reimbursed for the monies he has put into the property. [ 6 ] The Judge also dismissed Mr. Pearce’s claim for damages against Mr.

Duhart, saying at paragraphs 85 and 86, that there was “no evidence of any fraud committed by Mr. Duhart” and “no evidence to show that Mr. Duhart caused any damage to the property”. [ 7 ] Mr. Pearce filed a Notice of Appeal and subsequently applied to stay enforcement of the Judge’s decision pending the outcome of his appeal. Shortly after Mr. Pearce filed his stay application, Mr. Duhart filed an application to strike or dismiss Mr. Pearce’s appeal on the basis that it had no merit. Mr. Anderson supported Mr. Duhart’s application to dismiss Mr.

Pearce’s appeal. [ 8 ] The matter was heard by a panel of this Court on June 29, 2017. After hearing the submissions of the parties and considering the relevant law, the Court dismissed Mr. Pearce’s appeal with reasons to follow. It was therefore unnecessary to decide Mr. Pearce’s

stay application. [ 9 ] What follows are the reasons for the Court’s decision. [ 10 ] Rule 36(1) of the Court of Appeal Rules, NLR 38/16 provides for the dismissal of an appeal on the grounds that it is frivolous, vexatious, or without merit:

(1) A party to an appeal may apply at any time before or at the hearing of the appeal for an order (

a) striking out the notice of appeal; or (

b) dismissing the appeal on the grounds that (

c) no appeal lies to the Court; (

d) the appeal is frivolous, vexatious or without merit; (

e) the appellant has unduly delayed the preparation and perfection of the appeal; or (

f) the appellant has failed to apply to have the appeal set down for hearing. Subsections (2) and (3) of rule 36 are pertinent to describing the difference between dismissing an appeal and striking out a Notice of Appeal:

(2) An application to dismiss an appeal shall be heard and determined by a panel of not fewer than 3 judges sitting together.

(3) A notice of appeal may be struck out by a single judge, and where a notice of appeal has been struck out, the appellant may apply within 6 months to have the notice reinstated for good reason. [ 11 ] The factors set out in the former Rules are the same as those enumerated in rule 36(1). Accordingly, the law under the former Rules is of assistance. [ 12 ] In Walsh v. Johnson , 2010 NLCA 6 , 293 Nfld. & P.E.I.R. 101 , at paras. 16-22 , Green C.J.N.L. set out the law respecting an application for dismissal of an appeal under the former Rules .

It is important for an appellate court considering a dismissal application to carefully review the grounds of appeal, the record, and the trial judge’s reasons so as to identify the existence of any arguable merit supporting the appeal. If, after such a review, it is “plain and obvious” that the appeal cannot succeed, it will be dismissed. This is why rule 36(2) requires “a panel of not fewer than 3 judges”, as distinguished from striking a Notice of Appeal under rule 36(3), which can be done by a single judge.

An appeal can also be dismissed on the basis that it is frivolous, meaning that it has no substance, or vexatious, meaning that it has been brought for an improper purpose. [ 13 ] In this case, the panel dismissed Mr. Pearce’s appeal because it was without merit, and plain and obvious that it could not succeed. [ 14 ] The ground of appeal in Mr. Pearce’s Notice of Appeal asserted that the Judge claimed he would subpoena and interview a witness from the town of Port-aux-Basques respecting whether Mr. Anderson had “paid on the town taxes” before he (the Judge) rendered his decision in the matter.

This assertion has no bearing on the sustainability of Mr. Pearce’s appeal. Whether Mr. Anderson paid taxes respecting the property was irrelevant to the issues before the Court respecting Mr. Pearce’s claims. Mr. Pearce’s payment of the taxes on the property was relevant, and it was not disputed that he had made some payments to the town over the years towards taxes owing on Mr. Anderson’s property. Moreover Mr. Pearce’s assertion about the Judge saying he would subpoena and interview a witness before rendering his decision is undoubtedly a misunderstanding on Mr. Pearce’s part.

Nothing in the record supports this notion, which is not surprising given that such a commitment from a judge would be highly irregular. Accordingly, the sole ground of appeal in Mr. Pearce’s Notice of Appeal has no merit. [ 15 ] As well, the panel’s review of the record and the Judge’s decision did not disclose any issue which could be argued on appeal. The Judge’s decision that there was no agreement between Mr. Pearce and Mr. Anderson that Mr. Anderson transferred or would transfer the property to Mr. Pearce was well supported by the evidence. The only evidence which supported Mr. Pearce’s position was Mr.

Pearce’s own evidence which was rejected by the Judge on the basis that it was “unreasonable and implausible”. The Judge gave several reasons for his decision in this regard, among which was that there was no written document respecting the property which could be said to comply with the Statute of Frauds, 1677 , and that Mr. Pearce did not show, or even argue, that the Judge made any palpable and overriding error in his evidentiary findings supporting his reasons. [ 16 ] Mr. Pearce did not challenge the Judge’s decision to dismiss the damages claims against Mr. Anderson and Mr.

Duhart in his Notice of Appeal or in his submission to this Court. As well, the Judge’s reasons and the record do not disclose any basis, indeed any evidence, to support Mr. Pearce’s damages claims. [ 17 ] Accordingly, the Court was of the view that Mr. Pearce’s appeal had no arguable merit, and that it was plain and obvious that it had no chance of success. DISPOSITION [ 18 ] Mr. Pearce’s appeal was dismissed, and the parties were ordered to bear their own costs. Application to strike notice of appeal allowed, appeal dismissed.

Application for a stay dismissed.