Tremblett v. Tremblett, 2013 NLCA 34

Date: 201305 14 Docket: 13/34 Citation: Tremblett v. Tremblett , 2013 NLCA 34 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: WILLIAM TREMBLETT APPELLANT AND: DOUGLAS TREMBLETT RESPONDENT Coram: Welsh, Rowe and White JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200806T0087 Application Heard: May 14, 2013 Decision Rendered: May 14, 2013 (Orally) Memorandum of Disposition Filed: May 16, 2013 Counsel for the Appellant: John Drover Counsel for the Respondent: Corwin Mills Q.C. and Gregory French MEMORANDUM OF DISPOSITION Welsh J.A.: [ 1 ] In November 2012, it was determined at trial that William and his brother, Douglas Tremblett, were partners in a fishing enterprise from 1988 to 2004.

The Court found that the partnership was dissolved on April 26, 2004, and that Douglas Tremblett was entitled to monetary relief as a result of the dissolution. An appeal of that decision by William Tremblett was abandoned. [ 2 ] Subsequently, Douglas Tremblett applied for directions regarding the relief granted by the November decision. By order dated March 4, 2013, the trial judge ordered that William Tremblett pay to Douglas Tremblett $614,150 plus taxed costs no later than

March 31, 2013. Failure to pay the amount by the specified date would result in sale of the relevant fishing licence. Upon applicationsby William Tremblett, the date was advanced to April 30, 2013. Again, William Tremblett sought additional time within which to obtainfinancing to enable payment of the amount owing to Douglas Tremblett. However, by order dated May 1, 2013, the trial judge dismissed the “Application for a Stay”.

On May 2, 2013, William Tremblett filed a notice of appeal challenging the May 1st order. [3] On May 7, 2013, Douglas Tremblett filed an application in this Court requesting either that William Tremblett’s appeal bedismissed or that the notice of appeal be struck on the grounds that the appeal is frivolous, vexatious or without merit. [4] After hearing submissions from counsel, the Court dismissed that application. The law to be applied on such an application issummarized in Stacey v.

Seabright, 2010 NLCA 72, 302 Nfld. & P.E.I.R. 189: [25] The test for determining whether a notice of appeal should be struck out on the grounds that it is without merit is whether it isplain and obvious that the grounds of appeal cannot succeed: Walsh v. Johnson et al. (2010), 2010 NLCA 6 , 293 Nfld. &P.E.I.R. 101; 906 A.P.R. 101; 2010 NLCA 6. Although the threshold that an appellant must meet to keep the appeal alive is a low one,the appellant must at least state a ground of appeal that is justiciable and engages, on some basis known to the law, the correctness of thedecision under appeal: Walsh, para. 15.

An appeal that is obviously unsustainable and without arguable merit will also generally beregarded as frivolous: Walsh, para. 21. [5] It was clear from the explanation provided by William Tremblett’s counsel, regarding the grounds listed in his notice ofappeal, that the appeal could not be said to be frivolous, vexatious or without merit. [6] Accordingly, the application was dismissed. William Tremblett shall have his costs of the application on a party and partybasis. ____________________________ B. G. Welsh J.A.