McDonald v. Hickey, 2011 NLCA 60

Date: 20110920 Docket: 10/137 Citation: McDonald v. Hickey , 2011 NLCA 60 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : RICHARD MCDONALD APPELLANT AND : SUE HICKEY RESPONDENT/APPLICANT Coram: Green, C.J.N.L., Barry and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador General Division 201003G0162 Application Heard: September 7, 2011 Judgment Rendered: September 20, 2011 Reasons for Judgment by Green, C.J.N.L. Concurred in by: Barry and Harrington, JJ.A.

The Appellant appearing by teleconference on his own behalf Counsel for the Respondent/Applicant: David Eaton, Q.C. Green, C.J.N.L.: [ 1 ] The respondent, Sue Hickey, applied for an order striking out the notice of appeal on the grounds that the appellant has taken no steps to advance the appeal since filing the notice of appeal almost nine months ago, and that the appeal is frivolous and without merit. [ 2 ] The appeal relates to an order made by an applications judge in the Trial Division striking out the appellant’s statement of claim on the ground that it disclosed no reasonable cause of action.

The claim was for damage to and destruction of certain articles stored on premises in the Town of Grand Falls-Windsor which were demolished pursuant to municipal order. The claim alleged that the respondent wrote an

article in a local newspaper indicating that residents of Grand Falls-Windsor were concerned about a rodent infestation at the premises in question and that the town would be taking action to resolve the problem. The statement of claim asserted that an inspection requested by the appellant by a pest control company showed that the building was rodent free. It claimed $32,185.

Attached to the statement of claim were extracts from a newspaper

article written by the respondent and containing a picture of a rat,stating that residents had seen rodents in the area and that the building was an eyesore. [3] The applications judge noted that the statement of claim asserted that the building was demolished pursuant to an orderissued by the town and that the building was in a dilapidated condition.

He stated: [10] … there is no assertion that these contents were destroyed by or during demolition of the building; that is, there are no particularsgiven linking the loss of the contents – including such items as a van and pickup truck – to the demolition of the building. … [12] Nowhere in the statement of claim is there any reference to the Town’s having been influenced by the newspaper story andphotograph in its decision to issue a removal/demolition order.

As noted, there is reference in the pleading to a visual inspection by thetown engineer and to the physical condition of the building. [13] There is no assertion that Hickey acted in a manner that could give rise to a legal remedy – i.e. negligently, maliciously orotherwise. … [A]ny information in Hickey’s report was not information that, according to the pleadings, was new to the Town; rather,she was reporting on information already in the hands of the Town. [14] One may well question why it was necessary to include a picture of a rat with the story; but doing so does not create a cause ofaction.

As it presently stands, the statement of claim makes no assertion that Sue Hickey did anything in the nature of a legal wrong orbreached any legal duty owed to Richard McDonald… [4] As a result, the judge concluded that it was plain and obvious that, as presently pleaded, the claim against the respondentcould not succeed. He then went on to consider whether the defects in pleading could be cured by an amendment.

He concluded,however, that because no evidence had been presented from which he could conclude that there were facts in existence which could bepleaded to support any assertions such as breach of contract or duty of care, that the issuance of the demolition order would not have beenmade but for Hickey’s actions or that the loss was caused by carrying out the demolition order, he would not allow time for anamendment.

He struck out the claim with costs to Hickey on a party and party basis. [5] The notice of appeal, handwritten, reads in pertinent part: Richard McDonald has sued Sue Hickey for her part [in] the demolition of a building leased to McDonald for a period of five years.McDonald was only in the building for 1 ½ years before it was demolished with help of GFW Town Council. Sue Hickey played a majorpart in the demolition and displayed a picture of a rodent in the Grand Falls Advertiser also stating the building full of [rodents]. This wassaid by Hickey without having a [rodent] investigation of the building.

At that time, McDonald requested and paid for the Avalon PestControl of St. John’s NL. They came inspected the building, and the report was that it was found to be [rodent] free, and no indication ofany [rodent] activity in the past. Conclusion: As Sue Hickey published the picture of the [Rodent] either came from a book or possibly computer. [It is] evident Sue Hickey plannedand was present at the building to add to her [false] popularity which certainly is a criminal matter + possible should be criminallycharged, as the [rodent] situation added greatly to the [demolition] of the building.

As understood come from Irving Oil of St. John N.B. [6] It is to be noted that this is an application to strike the notice of appeal, not to dismiss the appeal itself. As to the distinction,see Barter v. Barter, 2006 NLCA 13 at para. 3 and Walsh v. Johnson, 2010 NLCA 6 at para. 13.

With respect to applications to strike,this Court in Walsh stated: [13] In the case of an application to strike out a notice of appeal, the process is essentially a formalistic one: are there grounds of appealstated in the notice of appeal that on their face disclose an arguable basis for interfering with the decision of the trial judge? If there arenot, then a striking out will follow unless the appellant can put forward a basis for being allowed to amend the notice to set forth anarguable ground.

An order striking out a notice of appeal is not, however, a disposition of the appeal on its merits. [7] The threshold an appellant must meet to show a potentially arguable ground of appeal so as to keep the notice of appeal aliveis a low one.

In Walsh, the test was stated as follows: “a notice of appeal will only be struck out if it is plain and obvious that the groundsof appeal cannot succeed” (para. 15). [8] A frivolous appeal is one that has no substance in the sense that it presents no justiciable question to be dealt with, raises noarguable points of law or is otherwise devoid of merit or an abuse of the court’s process. [9] The notice of appeal in this case contains no assertion whatsoever of error on the part of the applications judge. It essentiallyrepeats the allegations in the statement of claim with possibly some elaboration.

There is no submission that the applications judgeexceeded his jurisdiction or failed to apply or misapplied an applicable principle or made any palpable or overriding error in appreciationof the facts or that failure by this Court to interfere would cause a manifest injustice (See Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (Nfld.C.A.) at para. 33 for the test for appellate review of discretionary orders). Accordingly, thereare no arguable points of law or other justiciable questions to be dealt with.

The appeal on the face of the notice of appeal is devoid ofmerit. [10] There also does not appear, from a review of the decision of the applications judge, that there is any apparent basis foramending the notice of appeal to keep it alive. The applications judge appears to have applied the correct, “plain and obvious” test fordetermining whether, for the purpose of rule 14.24 of the Rules of the Supreme Court, 1986, a statement of claim discloses a reasonablecause of action. See Walsh v. TRA Co. Ltd. et al, 2007 NLCA 50 at para. 15.

[11] Furthermore, he appears, properly, to have considered, in accordance with this Court’s decision in Montreal Trust Co. ofCanada v. Hickman, 2001 NFCA 42 at para. 11, whether, instead of striking the claim, any defects in the pleading could be cured by anamendment. In considering the possibility of an amendment, he also, again properly, applied the principle that there should be someevidence before the court supporting the facts grounding any proposed amendment. See, Montreal Trust at para. 13 and SeadaneInternational Inc. v.

Morgan International Marketing Co. et al. (1999), (NL CA), 180 Nfld. & P.E.I.R. 97(Nfld.C.A.) at para. 16. These are all long-standing, well-established principles. There is nothing on the face of the record, therefore, toindicate a basis for alleging error on the part of the applications judge; certainly, the appellant did not point to any. Consequently, thereis no basis for amending the notice of appeal rather than striking it. [12] It also appears that the appellant has taken no steps, since filing the notice of appeal, to advance the proceeding.

He has notfiled the transcript of the proceedings below, an appeal book or factum and has not sought to set the matter down for hearing. Thisamounts to delay in the preparation and perfection of the appeal within the meaning of rule 57.17(1)(

e) of the Rules of the SupremeCourt, 1986. This fact, coupled with the absence of any merit in the grounds of appeal, justifies striking out the notice. [13] In the result, therefore, the notice of appeal will be struck out with costs payable by the appellant to the respondent. With theconsent of the respondent’s counsel, I would exercise my discretion under rule 55.02(1)(

a) and award a gross sum of $400 in lieu of anyother taxed costs in this Court. J. D. Green, C. J.N.L. I concur: L. D. Barry, J.A. I concur: M. F. Harrington, J.A.