Bartlett v. Simmonds, 2014 NLCA 27

Date: 20140704 Docket: 14/36 Citation: Bartlett v. Simmonds , 2014 NLCA 27 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DONALD JOHN BARTLETT APPLICANT AND : TERRY SIMMONDS RESPONDENT Coram: Rowe J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201204G0185 (2013 NLTD(G) 90) Application Heard: June 24, 2014 Decision Rendered: July 4, 2014 Counsel for the Applicant: Self Represented Counsel for the Respondent: Donald J. Gallant

Rowe J.A.: [ 1 ] This is an application by Donald Bartlett for an extension of time to file a Notice of Appeal. The decision he seeks to appeal was made by a judge of the Trial Division (2013 NLTD(G) 90) on June 13, 2013. Mr. Bartlett made his application on May 29, 2014. [ 2 ] In considering this application it is important to understand the decision that Mr. Bartlett seeks to appeal. The Trial judge gave a concise

summary at paragraphs 1-5 of his decision: [1] The Plaintiff, Terry Simmonds, asks the Court to confirm that his July 15, 2000 contract (lease with purchase option) for residential premises at 3 Pierceys Lane, Corner Brook is valid, enforceable and in good standing. The Defendant, Donald Bartlett, owner of the premises, asks the Court to declare the contract illegal or in breach. The premises have almost tripled in value since the contract was signed and that is an obvious factor in the background of this litigation. [2] During 1999 and 2000 Mr.

Bartlett had been actively attempting to sell the premises at a list price of $69,900.00. No offers were received. In the early summer of 2000 he approached Mr. Simmonds with a deal that could lead to a sale of his premises. Mr. Bartlett proposed that Mr. Simmonds make monthly payments, plus costs for maintenance and any capital improvements, for 25 years. At the end of the 25-year term Mr. Simmonds would have the option to acquire the premises for $1.00 consideration. Mr. Bartlett believed at the time that Mr. Simmonds was on social assistance and correctly concluded that Mr.

Simmonds had no capacity to purchase the premises by borrowing the purchase price from conventional lenders. After discussing the matter with his wife, Mr. Simmonds accepted Mr. Bartlett's proposal. No lawyers were involved; Mr. Bartlett prepared a contract as a cut and paste from the internet; both parties signed the contract. [ 3 ] After 12 years of on-time monthly payments and good rapport between the parties, Mr. Bartlett raised issues of contract breach and contract illegality and eventually served Mr. Simmonds with a Notice to Vacate. Mr.

Bartlett says the contract is in breach because of maintenance deficiencies and the failure by Mr. Simmonds to obtain a signed consent prior to construction of fixtures at the premises. Mr. Bartlett also raises illegality of contract because the 25-year term exceeds the 12-month maximum term allowed under

section 6 of the Residential Tenancies Act, 2000 , S.N.L. 2000, c. R-14.1. [ 4 ] For the reasons detailed below, I find: * the contract is valid, enforceable and in good standing; * the premises were maintained in good repair by Mr. Simmonds; * the maintenance items identified by Mr. Bartlett during the summer of 2012 were remedied within the 30-day timeline requested; * until June 11, 2012 the formality of written consent prior to construction of fixtures at the premises was waived by Mr.

Bartlett; * specific oral consents were provided in most cases prior to construction of fixtures at the premises (I add that the absence of consents in this situation would not constitute a fundamental breach justifying contract termination); * there has been no breach of the contract by Mr. Simmonds and * the contract is not subject to the provisions of the Residential Tenancies Act . [5] The grounds that Mr. Bartlett relied upon to end the contract are without merit. [3] In Law Society of Newfoundland v.

Fahey , 2000 NFCA 19 at para. 3 , this Court (per Cameron J.A.) set out the test for an application to extend the time for filing a notice of appeal: 1. whether the appellant had a bona fide intention to appeal within the appeal period; 2. whether there is a reasonable excuse for the failure to comply with the rule; 3. the potential merits of the appeal; and 4. the presence of any exception or special circumstances justifying or working against the fairness of an extension. I will deal with each in turn. Bona Fide Intention to Appeal [4] In his affidavit, Mr.

Bartlett states in paragraph 5 that he, … did not file an application for Leave to Appeal within the allowed time [30 days] even though his intention was to apply, because of

stress related to the trial. This he repeated at the oral hearing. [ 5 ] In reply, counsel for Mr. Simmonds stated at para. 2 of his Factum: There was little indication prior to the [May 29, 2014] Application being filed that the Appellant intended to appeal the Order. The Appellant did not assert at the date that the decision was made on June 13, 2013 that he intended to appeal the decision. Instead it was only following several months of meetings, correspondence and discussion with the Respondent and his solicitor that the Appellant filed his Application.

The significant events that occurred since the decision on June 13, 2013 include the following: 1. The Respondent’s solicitor and Appellant appeared at the Taxation Hearing for costs on September 11, 2013. The Bill of Costs was filed on September 25, 2013 for the amount of $6,643.00 and subsequently registered at the Sheriff’s Office. The Bill of Costs has not been paid to date …; 2. The parties attempted to negotiate the sale of 3 Piercey’s Lane, Corner Brook to the Respondent over a period of several months [correspondence appended to Factum]; 3.

The Respondent first raised his possible appeal of the decision on April 1, 2014 when he was trying to negotiate the sale price of 3 Piercey’s Lane with the Respondent; and, 4. The Respondent’s solicitor wrote the Appellant on April 2, 2014 advising the Appellant that his right to appeal expired thirty (30) days following the decision …; and, 5. The parties continued to exchange correspondence and emails thereafter in an attempt to negotiate a sale [further correspondence appended to Factum].

When the Respondent did not agree to pay for the Appellant’s price then the Appellant chose to file his Application. [ 6 ] The contents of two documents provided by counsel for Mr. Simmonds illustrate the pattern of dealing between the parties. In a letter of October 17, 2013, counsel for Mr. Simmonds set out an offer to buy the subject property for $71,897, being the “total purchase price” ($180,000), less the amount paid to date ($78,540) and the bill of costs ($6,643). In a November 20, 2013 reply, Mr.

Bartlett countered by offering to sell for $93,357, being $100,000 less the bill of costs ($6,643). [ 7 ] I find that Mr. Bartlett did not have a bona fide intention to appeal within the appeal period, but rather he is seeking to appeal now so as to enhance his leverage in negotiations with Mr. Simmonds concerning a potential sale of the subject property. Reasonable Excuse [ 8 ] As noted, Mr. Bartlett stated that his “reasonable excuse” for failure to appeal within 30 days was “stress related to the trial”.

He offered no evidence of this beyond his own statement. [ 9 ] However, the pattern of dealings between the parties shows Mr. Bartlett throughout to be a hard-nosed businessman aggressively pursuing his self-interest, as he is entitled to do. This accords entirely with how Mr. Bartlett presented before me. He was confident and direct. [ 10 ] I find that Mr. Bartlett had no reasonable excuse related to stress and that instead, as noted above, he is seeking to bring on an appeal so as to increase his leverage in negotiations with Mr. Simmonds. Potential Merits of the Appeal [ 11 ] In his affidavit, Mr.

Bartlett stated: 6. Since that time Appellant has analyzed the decision and determined that the Honourable Judge erred in his decision that the Contract is not subject to the provisions of The Residential Tenancies Act. 7. Plaintiff also determined that he made several errors in his decision related to Contract Law. I.E. (The doctrine of fundamental breach was “laid to rest” by the Supreme Court of Canada in Tercon Contractors v. British Columbia in 2010) 8.

His Decision was perverse in that he found that the contract is valid, enforceable and in good standing while at the same time essentially re-writing a term of the contract that requires “written Permission” to do construction by accepting oral evidence of verbal permission to do construction. 9. Plaintiff also says that a relevant factor (requirement of written permission for Removable of a window) was not considered. 10. Plaintiff submits that if an extension of time of time to file a notice of appeal is not granted it would create an injustice. Mr.

Bartlett repeated and to some degree expanded on the foregoing in his oral presentation. [ 12 ] I have reviewed the trial judge’s decision in light of Mr. Bartlett’s submissions. I find that none of his arguments have merit; they do little more than gainsay the judge’s disposition of the issues. (The doctrine of fundamental breach is not a key element of the trial judge’s decision.) Exceptional or Special Circumstances [ 13 ] Mr. Bartlett has shown no exceptional or special circumstances justifying an extension of time to appeal. To the contrary, I find

that the circumstances are such that it would be a significant unfairness to Mr. Simmonds were Mr. Bartlett to be permitted to bring on an appeal almost a year after the trial judge’s decision. CONCLUSION [ 14 ] The application is denied. Mr. Simmonds will have his costs of this application on a party and party scale. Those costs when taxed are to be paid by Mr. Bartlett forthwith, as are the costs awarded from the trial. ____________________________________ M. H. Rowe J.A.