R. v. Ring, 2016 NLCA 77

Manuel Clarence Ellis (applicant/appellant) v. Estate of John Pelley Sr. (respondent) (15/53) Indexed As: Ellis v. Pelley Estate 2016 NLCA 77 1 C.A.N.L.R. 383 Court of Appeal of Newfoundland and Labrador Welsh J.A. December 28, 2016

Summary: Manuel Ellis applied for reinstatement of an appeal which had been deemed abandoned due to the passage of more than 12 months without any steps being taken. Held: Application dismissed. Welsh J.A.: Mr. Ellis’ appeal from an order of the Supreme Court dismissing his adverse claim to a portion of the land of the Pelley Estate, had been deemed abandoned under the old rules. By the time of the hearing of the application the new Court of Appeal Rules , NLR 38/16 had come into force. By virtue of rule 60, the new rules applied to the application. Abandoned appeals could be reinstated pursuant to rule 17(9).

However, a number of factors that had previously been considered in reinstatement applications under the old rules remained relevant. One factor was the merit of the appeal, which in this case was particularly important. The trial judge concluded that the estate of Pelley Sr. held title to the land in question and that Mr. Ellis had not established that he had obtained title by adverse possession. Mr. Ellis argued that the trial judge improperly admitted and considered documents, but could not identify which. Mr.

Ellis did not show any basis on which it could be determined that the judge erred in his conclusion that the Estate of John Pelley Sr. owned the property in issue. There is no arguable basis for an appeal. Cases cited: Law Society of Newfoundland v. Fahey , 2003 NLCA 8 , 221 Nfld. & P.E.I.R. 79 R. v. Ring , 2013 NLCA 66 , 344 Nfld. & P.E.I.R. 23 Counsel: Owen Myers, for the applicant/appellant; Gregory J. French, for the respondent. This application was heard on December 19, 2016 before Welsh J.A.

The following judgment was delivered on December 28, 2016 by Welsh J.A. ______________________________________________________________ Welsh J.A.:

[1] This is an application by Manuel Ellis for reinstatement of an appeal that was deemed abandoned due to the passage of time. The application is opposed by the respondent, Estate of John Pelley Sr. [2] The notice of appeal was filed on June 25, 2015. On October 13, 2016, this Court issued a notice that the appeal was deemedabandoned pursuant to rule 57.20(4) of the Rules of the Supreme Court, 1986. On December 12, 2016, Mr.

Ellis applied forreinstatement of the appeal. [3] On October 17, 2016, the Court of Appeal Rules, NLR 38/16 (the “new rules”) came into force, replacing rule 57 of the Rules ofthe Supreme Court, 1986 (the “former rules”).

The transition from the former to the new rules is addressed in rule 60(1): Proceedings commenced, but not completed, prior to the coming into force of these rules shall be governed by these rules withoutprejudice to anything lawfully done under the former rules. [4] Under rule 57 of the former rules, an appeal was automatically deemed abandoned after the passage of a specified period oftime, with the possibility of reinstatement.

That rule does not preclude the operation of rule 17 of the new rules which provides a newprocedure whereby an appeal may be deemed abandoned after notice, but reinstated upon application. [5] The relevant rule here is rule 17(9) which provides for reinstatement upon terms the Court considers just. The rule does not listfactors to be considered in determining whether reinstatement should be ordered. On this point, judicial authority under the former rulesprovides 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 theinterest of justice that the appeal be reinstated or left [abandoned]”. That is, essentially, another way of saying where, in the opinion ofthe Court, refusal to do so would create an injustice. In either case, the decision can only be judicially arrived at as a result ofconsideration 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 coreconsiderations properly to be applied in virtually every case. The fifth category … should be broad enough to include prejudice to aparty, in the specific circumstances of the case, as well as any other special circumstance which justice would require should beconsidered in a particular case. [6] In this case, the first consideration is of particular importance.

The litigation between the parties began with an application bythe administrator of the Estate of John Pelley Sr. to quiet the title of a parcel of land. An adverse claim to a portion of the land, broughtby Manuel Ellis, was dismissed by decision of Puddester J. in 1997 ((1997) (NL SC), 154 Nfld. & P.E.I.R. 271). That decision was not appealed. However, the applications judge here permitted Mr. Ellis to amend his adverse claim to the property(2015 NLTD(G) 73, 367 Nfld. & P.E.I.R. 160): [9] At the hearing of the Interlocutory Application herein to strike the Adverse Claim, [Mr.

Ellis] sought and was granted leave toamend the Adverse Claim to be grounded solely on the basis of his possession of a large portion of the subject property since 1997. … In his analysis of Mr. Ellis’ claim, the applications judge explained: [13] Dispute over the land in question has consumed the attention of the parties for well over twenty years. Both sides have expendedconsiderable effort and money and court time battling over the title.

In 1997, Puddester, J. in a lengthy examination of the factsconcluded that Manuel Ellis and his brother had not then established documentary title nor possessory title. … [15] I do not intend to revisit the position of [Mr. Ellis] pre-1997; I allow the 1997 Quieting Application Decision to speak for itself.

The basis of the Amended Adverse Claim put to the Court is that Manuel Ellis has had open, exclusive, notorious and continuouspossession of the property since 1997. [7] That said, the applications judge also referred to letters of administration of the estates of John Pelley Sr.’s sons which furthersupported the conclusion that the Estate of John Pelley Sr. had documentary title to the property claimed by Mr.

Ellis: [21] I conclude by operation of these Indentures of Releases, that to the extent that any of the subject property may have been conveyedby John Pelley Sr. in the November 1892 Deed to his two sons, it has now been surrendered and released back to the Estate of JohnPelley Sr. Through the Pelley Grant and the Indentures of Release [the Estate of John Pelley Sr.] has thus proven prima facie paper title. [8] The applications judge then proceeded to consider whether title by means of adverse possession had been established by Mr.Ellis.

He fully canvassed the law, including the proposition that simply cutting wood from an area with no re-forestation, pruning orcultivation “was nothing more than harvesting the bounty of nature” (decision of the applications judge at paragraph 42; R. v. Ring,2013 NLCA 66, 344 Nfld. & P.E.I.R. 23).

[ 9 ] The judge then turned to the particular facts: [44] [Mr. Ellis] gave evidence that he continued to use the property he claims, the same as he did prior to 1997 through select cutting of wood therefrom. He testified that he walked that part of the property he claims once a week and other members of his family would ask his permission to harvest wood from “his” property and he generally “managed” the property he claims. He constructed no buildings on the land, nor erected any fences.

The evidence is very vague as to how much timber was harvested but the best evidence would suggest a cord or slightly more than a cord per year. [ 10 ] Having considered the evidence of both parties, the judge concluded: [48] … It is, in fact, a large tract of land and while [Mr. Ellis] and others, ostensibly with his permission, cut relatively small amounts of wood from that property since 1997, those incidents of cutting wood described by [Mr. Ellis] and others fall more into the category of acts of trespass versus acts of possession. … Seasonal, sporadic cutting of wood from a large tract of land which [Mr.

Ellis] describes as “select cutting” does not amount to the vigor required to be considered possession. If we accept the evidence of [Mr. Ellis], I cannot conceive the harvesting of timber in the manner described coupled with no other acts of possession would constitute such open, exclusive, notorious and continuous possession as the law contemplates to establish property rights through adverse possession. … [52] Relative to the second issue at trial, I conclude that [Mr.

Ellis] has not established sufficient acts of possession since 1997 so as to preclude in law the claim of ownership by [the Estate of John Pelley Sr.]. It is my view that [Mr. Ellis] was unsuccessful in his attempt to quiet title to the property in 1997 and simply refuses to let go of the notion that he somehow has claim to the land, which position is clearly contrary to the preponderance of the evidence. [ 11 ] In this appeal, Mr. Ellis submits that documentary evidence was improperly admitted after the close of pleadings and that this disadvantaged him as a self-represented litigant.

He is represented by counsel before this Court who concedes that the judge could have allowed the additional evidence. He did not identify any particular document that was improperly considered. Nor did he attempt to establish that any of the evidence would not have been admissible had the issue of admissibility arisen at the time. [ 12 ] In the 1997 decision of Puddester J., the question of documentary title was determined in favour of the Estate of John Pelley Sr. That decision was not appealed. Mr. Ellis continued his dispute by relying on adverse possession since 1997.

That claim was dismissed by the applications judge in a comprehensive decision explaining reasons for accepting the evidence of particular witnesses in preference to that of other witnesses. [ 13 ] Mr. Ellis has not shown any basis on which it could be determined that the judge erred in his conclusion that the Estate of John Pelley Sr. owns the property in issue. In short, there is no arguable basis for an appeal. In the result, Mr. Ellis’ application to reinstate his appeal must be dismissed. [ 14 ] Regarding costs, the applications judge awarded costs against Mr.

Ellis under column 5 of the scale of costs on the basis that he had been told that he could not re-litigate the 1997 decision of Puddester J. and that, “[i]n the end, [his] claim was weak or non-existent” (decision of the applications judge at paragraph 54). [ 15 ] Mr. Ellis’ refusal to accept that the property he claimed is, in fact, not his, together with his failure to proceed expeditiously with the appeal has delayed the ability of the Estate of John Pelley Sr. to deal with the property. However, there are extenuating circumstances that caused the delay in proceeding with the appeal.

Accordingly, an order for costs of the appeal against Mr. Ellis under column 3 of the scale of costs under rule 58 of the Court of Appeal Rules is appropriate. Disposition [ 16 ] For the reasons set out above, Mr. Ellis’ application to reinstate his appeal is dismissed. The Estate of John Pelley Sr. shall have its costs of the appeal under column 3 of the scale of costs pursuant to rule 58 of the Court of Appeal Rules . Application dismissed.