2016 NLCA 64, 2016 NLCA 64

Atlantic Lottery Corporation Inc. - Societé de Loteries de l’Atlantique (intended appellant) v.

Douglas Babstock and Fred Small (intended first respondents) and VLC, INC. (intended second respondent) and IGT-Canada Inc. (intended third respondent) and International Game Technology (intended fourth respondent) and Spielo International Canada ULC (intended fifth respondent) and Gtech Corporation (intended sixth respondent) and Tech Link International Entertainment Limited (intended seventh respondent) and Hi-Tech Gaming.com Ltd. (intended eighth respondent) (14/81) Indexed As: Atlantic Lottery Corporation Inc. - Societé de Loteries de l'Atlantique v.

Babstock 2016 NLCA 64 1 C.A.N.L.R. 279 Court of Appeal of Newfoundland and Labrador Welsh J.A. November 14, 2016

Summary: The Lottery Corporation sought leave to appeal an interlocutory order dismissing its application to summarily dismiss an application for the certification of a class action proceeding. The parties agreed to wait for the certification decision before proceeding with the leave application, but the appeal was deemed abandoned after no steps were taken for more than 12 months. The Lottery Corporation applied to have the appeal reinstated under rule 17(9) of the Court of Appeal Rules , NLR 38/16 which had recently come into force. Held: Application allowed, appeal reinstated.

Welsh J.A.: Although the appeal was deemed abandoned under the former rule, the new rules govern the hearing of the application, which took place after they came into force, in accordance with rule 60. The abandonment procedure under the old rules does not prevent the application of new rule 17, which governs applications for reinstatement of appeals previously deemed abandoned. The circumstances are distinguishable from those in Evans v. Evans , 2016 NLCA 62 because that application was heard before the coming into force of the new rules, even though the decision was not given until afterwards.

Where there has been a hearing of an application or appeal prior to October 17, 2016, but the decision has not been given until after that date, rule 60(2) will be engaged, subject to direction or order from the Court. The explanation and plan provided by the parties satisfied the Court the appeal could be reinstated. Cases cited: Evans v. Evans , 2016 NLCA 62

Counsel: Daniel W. Simmons Q.C., for the intended appellant; No one appearing, for the intended respondents. This application was heard and decision rendered orally on November 8, 2016 by Welsh J.A. The following Memorandum of Disposition was filed on November 14, 2016 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Douglas Babstock and Fred Small applied in the Supreme Court, Trial Division for certification of a class action against the Atlantic Lottery Corporation.

The remaining named parties are third parties to the certification application. [ 2 ] The Lottery Corporation applied to have the statement of claim struck under rule 14.24 of the Rules of the Supreme Court, 1986 . That application was dismissed by order dated October 1, 2014. [ 3 ] By application dated October 17, 2014, the Lottery Corporation sought leave to appeal that decision.

On July 10, 2015, the Lottery Corporation advised this Court that the parties had agreed to await the decision of the Trial Division on the certification application before proceeding with the application for leave to appeal the rule 14.24 decision. [ 4 ] On September 29, 2015, the hearing of the certification application was completed, with the decision being reserved. That decision had not been filed by November 8, 2016 when the order discussed below was made.

On January 15, 2016, the Lottery Corporation reiterated the parties’ intention to await the decision on certification before proceeding with the rule 14.24 leave application. [ 5 ] On October 14, 2016, this Court issued a notice under rule 57.20(4) that the appeal had been deemed abandoned. The notice was received by the Lottery Corporation on October 19, 2016. [ 6 ] On October 17, 2016, the Court of Appeal Rules , NLR 38/16 (the “new rules”), came into force, replacing rule 57 of the Rules of the Supreme Court, 1986 (the “former rules”).

Rule 60(1) of the new rules provides: Proceedings commenced, but not completed, prior to the coming into force of these rules shall be governed by these rules without prejudice to anything lawfully done under the former rules. [ 7 ] Rule 60(2) provides for situations where application of the new rules may be problematic: A party may make a request or an application for directions or an order if there is doubt about the application or operation of these rules to a proceeding under subsection (1) or if any difficulty, injustice or impossibility arises as a result. [ 8 ] As applied to the application by the Lottery Corporation, I am satisfied that rule 60(1) is engaged.

Under rule 57 of the former rules, an appeal was automatically deemed abandoned after the passage of a specified period of time, with the possibility of reinstatement. That rule does not preclude the operation of rule 17 of the new rules which provides a new procedure whereby an appeal may be deemed abandoned and reinstated. [ 9 ] Under the new rules, the appellant receives notice from the Court that the appeal will be deemed abandoned unless, within sixty days, the appellant delivers a written explanation and proposed plan or, in the alternative, makes an application to have the appeal adjourned indefinitely.

Where an appeal has been deemed abandoned, rule 17(9) provides for reinstatement upon terms the Court considers just. [ 10 ] In this case, the Lottery Corporation applied to have the appeal reinstated pursuant to rule 17(9) . An explanation and plan as provided for under rule 17(2) were filed. The Lottery Corporation also filed consents to the reinstatement and to the plan by all parties. At the hearing of the application, the explanation and plan were approved and the appeal was reinstated.

In addition, counsel agreed to proceed without delay with the rule 14.24 issue and leave to appeal the class action certification once the certification decision has been filed. If the class action is not certified, it is expected that the Lottery Corporation will file a notice of discontinuance under rule 18. [ 11 ] Finally, I would draw a distinction between the circumstances in this case and those in Evans v. Evans , 2016 NLCA 62 , which involved an application to reinstate an appeal that had been deemed abandoned on January 13, 2016.

In Evans , the application was heard on October 12 and 14, 2016, prior to the new rules coming into force, though the decision was not given until November 9, 2016, after the new rules came into force. Where there has been a hearing of an application or appeal prior to October 17, 2016, but the decision has not been given until after that date, rule 60(2) will be engaged, subject to direction or order from the Court. [ 12 ] In

summary, on November 8, 2016, the appeal that was deemed abandoned under the former rules was reinstated under rule 17(9) of the new rules, with the explanation and plan as provided for under rule 17(2) being approved. Application allowed.