2016 NLCA 62, 2016 NLCA 62

Donald J. Evans (applicant) v. Joanne Mahaney Evans (respondent) (16/12) Indexed As: Evans v. Evans 2016 NLCA 62 1 C.A.N.L.R. 254 Court of Appeal of Newfoundland and Labrador Rowe J.A. November 9, 2016

Summary: Mr. Evans applied to reinstate an appeal which had been deemed abandoned after no steps were taken and no determination was made after the passage of 12 months. Held: Application dismissed without prejudice to re-apply in a timely manner. Rowe J.A.: The correct test for reinstatement was set out in Burgess v. Burgess , 2015 NLCA 39 . At issue in the application was whether the appeal was frivolous or vexatious in the sense that there was no arguable case. Mr. Evans argued that the trial judge was biased, made derogatory remarks and erred in law on a major issue.

The record did not reveal any bias or derogatory remarks. However, being self-represented, the Court was not certain that Mr. Evans understood what he was required to demonstrate in order to show an error. The application was dismissed without prejudice to re-apply if done in a timely manner. Cases cited: Burgess v. Burgess , 2015 NLCA 39 Counsel: Appearing on his own behalf, the applicant/appellant; Brian Wentzell, for the respondent. This application was heard on October 12 and 14, 2016 before Rowe J.A.

The following judgment was delivered on November 9, 2016 by Rowe J.A. ______________________________________________________________ Rowe J.A.: [ 1 ] This is an application by Donald Evans to reinstate a notice of appeal that was deemed abandoned on January 13, 2016. The

notice of appeal related to a decision by a judge of the Unified Family Court (UFC) dealing with division of property between Donald Evans and his former spouse, Joanne Evans. The parties’ final separation occurred in October 2010. [ 2 ] The UFC judge heard the case over nine days in June 2012, May 2013 and July 2013; the judge rendered a lengthy decision on September 19, 2014. The case dealt primarily with a separation agreement (notably vis-a-vis the family home) and a small business. In general, the results favoured Ms. Evans. [ 3 ] On October 23, 2014, Mr. Evans filed a notice of appeal. In December 2014, Mr.

Evans wrote to obtain the CDs on which the trial had been recorded. Mr. Evans proceeded to have the transcript of the trial prepared; this was delayed as a result of costs. As noted above, pursuant to Rule 57.20(4), Mr. Evans’ notice of appeal was deemed abandoned on January 13, 2016, given that 12 months had passed since the last step was taken and no order had been made . [ 4 ] On February 3, 2016, Mr. Evans applied to have his notice of Appeal reinstated. There followed a series of efforts to serve notice of the hearing on Ms. Evans; Mr. Evans made submissions regarding the efforts to serve Ms. Evans.

Eventually, Ms. Evans was served and the hearing occurred before me on October 14, 2016. Mr. Evans represented himself; Ms. Evans was represented by counsel. [ 5 ] In his written submissions, Mr. Evans stated that the legal principles in relation to the reinstatement of a notice of appeal have been set out in Burgess v Burgess , 2015 NLCA 39 in which at paragraph 7 to 9, Green C.J.N.L. wrote: [7] The factors generally considered by the Court in deciding whether it is in the interests of justice to reinstate an appeal that has been deemed abandoned are (

i) whether the appeal can be said to be frivolous or vexatious in the sense that there is no arguable case; (ii) whether the appellant had a bona fide intention to proceed with the appeal prior to the deemed abandonment; (iii) whether there is a reasonable excuse for the failure to proceed with the appeal prior to the deemed abandonment; (iv) whether the appellant acted in a timely fashion in making the application for reinstatement; and (

v) the presence of exceptional and special circumstances justifying or working against the fairness of the reinstatement. See Fahey v. Law Society of Newfoundland, 2003 NLCA 8 , 221 Nfld. & P.E.I.R. 79 ; Tucker v. AXA General Insurance , 2014 NLCA 36 , 355 Nfld. & P.E.I.R. 354 . As has been noted in previous decisions, this list is not exhaustive and is not to be regarded as a series of hurdles which all have to be cleared before reinstatement can occur (although I would observe that a conclusion that the appeal is frivolous or vexatious will generally be fatal).

They are merely factors to be considered and balanced in deciding the justice of the individual case. [8] The fifth factor (the presence of exceptional or special circumstances) encompasses a variety of potential considerations including prejudice to the other party or parties that cannot be otherwise substantially ameliorated.

It also enables the Court to take into account any special circumstances that would work an injustice to any person affected by the original decision such as, in this case, the impact of denial of an appeal in a family case on children who are the potential beneficiaries of but are not actually parties to the trial order. [9] As noted by White J.A. in Tucker , the standard to be met for reinstatement is relatively low unless reinstatement would involve prejudice to another party (or, I would add, to other persons affected by the order) or deliberate delaying tactics by the applicant. [ 6 ] Counsel for Ms.

Evans agreed that the foregoing passage sets out the test for reinstatement of a notice of appeal that was deemed abandoned. Thus, the issue is the application of the test. [ 7 ] In this decision, I focus on the first factor set out in Burgess , “whether the appeal can be said to be frivolous or vexatious in the sense that there is no arguable case”. In his application for reinstatement of the notice of appeal, Mr.

Evans stated: (1) the trial judge “was in a conflict of interest” ... in that he “lived in my residence for several months in the early 1970’s”; (2) the trial judge’s “bias is evident through[out] the decision” and he “made derogatory remarks about myself in his written decision”; and (3) the trial judge “erred in law on a major issue”. [ 8 ] Regarding (1) above, Mr. Evans indicated that the trial judge had stayed in the same house as Mr. Evans for a while when both were students at Memorial University about 40 years ago.

I do not see this as constituting an arguable basis for a conflict of interest, actual or perceived. [ 9 ] Regarding (2) above, I have read the reasons for decision by the trial judge. There was no passage that would suggest bias, nor were any “derogatory remarks” made by the trial judge. On certain questions of credibility the trial judge did not find Mr. Evans’ testimony persuasive; that does not constitute an arguable ground of appeal. [ 10 ] Regarding (3) above, Mr. Evans did not elaborate, focusing instead on (1) “conflict of interest” and (2) “bias”. When I sought to encourage him to explain further, Mr.

Evans referred to findings of fact made by the trial judge, e.g. in the operation of the small business. Mr. Evans also referred to the separation agreement, which he said was “unconscionable”, without explaining. [ 11 ] It is important that there be a finality to court proceedings, so that people can put the stress, uncertainty and expense of litigation behind them and get on with their lives. This case has been before the courts for more than four years. That is a long time. The trial decision was rendered more than two years ago. Any appeal should have been disposed of by now.

That said, it is also important that every party has a proper opportunity to vindicate their rights at law. [ 12 ] At the hearing before me, Mr. Evans failed to show that he had an “arguable case” for appeal. That said, I am not confident that Mr. Evans understood that to be successful in his application he had to explain what he meant when he wrote that the trial judge “erred in law on a major issue”, that merely asserting this is not sufficient. Accordingly, while I would dismiss the application, I do so without prejudice to Mr.

Evans being able to bring on a further application for reinstatement provided he does so in a timely manner.

[ 13 ] In the event that Mr. Evans does bring on in a timely way a further application for reinstatement, the applications judge would need to have regard, as appropriate, to all the factors set out in Burgess . Application dismissed.