Burgess v. Burgess, 2015 NLCA 39

Date: 20150825 Docket: 15/38 Citation: Burgess v. Burgess , 2015 NLCA 39 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: JUDY BURGESS APPLICANT AND: JAMES BURGESS RESPONDENT Coram: Green C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 200902U0415 Application Heard: August 25, 2015 Decision Rendered: August 25, 2015 (Orally) Written Reasons Filed: September 3, 2015 Reasons for Decision by Green C.J.N.L. Counsel for Applicant: Randell L. Wellon Counsel for Respondent: James J. Smyth, Q.C.

Green, C.J.N.L.: [ 1 ] The applicant, Judy Burgess, applied under Rule 57.20(8) of the Rules of the Supreme Court, 1986 for an order reinstating her appeal which had previously been deemed abandoned for inactivity under rule 57.20(4). Following the hearing, I reinstated the appeal

and made certain consequential orders, for the reasons following. Background [ 2 ] The matter involves a claim for child support. Reasons for judgment were filed by the trial judge on September 11, 2013. Neither party was happy with the decision. Counsel for the parties attended on the trial judge seeking certain corrections of some of the calculations which, it was suggested, had been incorrectly made. Some amendments were made, but other issues remained outstanding. Counsel for the mother indicated to father’s counsel that she intended to appeal the decision.

Counsel for the father decided to file a cross appeal if the mother did in fact appeal. [ 3 ] Delays were encountered in finalizing the formal order. It was not filed until March 3, 2014. The mother’s notice of appeal was filed on March 19, 2014 but, through inadvertence, the notice was not served on counsel for the father. [1] Thinking the matter was at an end, the father’s counsel did not file a cross appeal.

In fact, he did not find out that an appeal had been filed until he received the notice of deemed abandonment sometime later. [ 4 ] In preparation for the appeal, the mother requisitioned, obtained and paid for a transcript of the trial proceeding but did not file it in the Court. Her counsel also conducted certain legal research and took steps preparatory to completing a factum.

Counsel did not, however, file an appeal book. [ 5 ] Because the Court record did not reflect any activity, in the form of further steps towards perfection of the appeal for more than twelve months since the filing of the notice of appeal, the Registrar issued a notice of deemed abandonment under rule 57.20(4) on April 21, 2015. [ 6 ] Counsel for the mother filed an application to reinstate on June 10, 2015. Principles [ 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.

Application to the Case [ 10 ] In this case, the mother raises a number of legal issues relating to the approach taken by the trial judge to the application of the Federal Child Support Guidelines, SOR/97-175 the judge’s treatment of a pre-existing separation agreement and the consistency of the resulting order with the purposes and principles applicable to determination of child support issues. I am satisfied that the appeal is not in any way frivolous or vexatious. In fact, counsel for the father acknowledges that there may be arguable grounds of appeal.

As previously indicated, he also was not satisfied with the original trial judgment, in particular with some of critical factual findings. While his client was prepared to live with the amounts of child support ordered if there was no appeal, he fully expected that the mother would launch an appeal.

Fearing that the appeal might result in an increase in child support, he would have then felt compelled to attack, by way of cross appeal, some of the trial judge’s other findings that formed the basis of his financial calculations and conclusions. [ 11 ] I was also informed that since the trial decision, the custodial arrangements involving the children have changed by agreement, thereby making the trial judge’s child support order possibly inappropriate on a go-forward basis.

Nevertheless, the parties agree that there is still a live issue as to the appropriateness of the judge’s analysis and calculations with respect to retroactive support, which could be substantial. I am therefore satisfied that real and substantial issues remain engaged on the appeal. The issues defined in the notice of appeal are not moot. [ 12 ] There can be little doubt that the mother had a bona fide intention to proceed with her appeal.

Through her counsel, she had requested, obtained and paid for a transcript of the trial evidence, and her counsel was working (though without much alacrity) towards perfection of the appeal.

This factor therefore does not work against the mother’s application. [ 13 ] As to whether the appellant has given a reasonable excuse for failure to proceed with the appeal prior to its abandonment, very little was said about this at the hearing except that the mother’s counsel acknowledged that it resulted from inadvertent solicitor’s error in not keeping proper track of the twelve-month deadline. [ 14 ] There are those who might say that a solicitor’s error of this type should be fatal because the party could always obtain a remedy by suing the solicitor for negligence. I do not subscribe to this view.

In the first place, it does not follow that a mistake by a

solicitor that has procedural consequences will always amount to professional negligence. Secondly, there will not be a proper record on an application for reinstatement to decide whether the solicitor’s actions or failure to act would be of a type that necessarily will leave the party with a negligence remedy. Thirdly, the party who suffers from the negligence will face a considerably longer, more complicated and potentially costly process to obtain a remedy if forced to pursue that route.

Fourthly, the remedy in a negligence action is damages which, particularly in a family case involving children, may not provide an adequate substitute for the type of remedy that is being sought on the appeal. And finally, the quantum of damages, even if appropriate as a type of remedy, will be speculative and may well have to take account of – and be reduced by – the chances of loss on the appeal if it had proceeded. I prefer, therefore, to regard solicitor’s error as simply a factor to be considered as an explanation for why the applicant did not proceed with the appeal prior to abandonment.

That said, to the extent that the solicitor’s actions can be said to be the applicant’s actions, error without a reasonable explanation as to why it occurred will be a consideration pointing to not granting reinstatement. That is the situation here. [ 15 ] As to the fourth factor (the timeliness of the application to reinstate), the application took seven weeks to be filed.

This is not indicative of a concerned eagerness to have the matter rectified, but it is not so long as to work strongly against the claim to reinstatement. [ 16 ] Finally, as to the presence of exceptional or special circumstances that might work for or against reinstatement, the father points out that the combination of the failure of the appellant to serve him with the original notice of appeal and lack of subsequent communication with counsel for the mother essentially led him into a false sense of security that he would not have to face an appeal.

As a result, he did not file a cross-appeal to challenge some of the other findings of the trial judge, which he would have done as a response to the mother’s appeal had he known about it. He says he would be prejudiced if the appeal were to be reinstated, and he was not allowed, even at this late date, to raise his cross-appeal issues. I am not persuaded that this, in itself, is a sufficient reason to deny reinstatement. In the first place, counsel for the mother made it clear to counsel for the father that the mother intended to appeal.

Counsel for the father could have communicated with the mother’s counsel to verify the status of the indicated appeal or checked with the Court before concluding that the matter was a dead issue. In any event, the father’s concerns can be ameliorated by granting him leave, as a condition of reinstatement, to file a cross-appeal. [ 17 ] Another consideration that is relevant in the current context is the fact that what is at issue here is the appropriate amount of financial support for children who are not parties to the litigation. They are nevertheless the beneficiaries of it.

If a potentially meritorious appeal might affect their financial circumstances positively, then that is a factor favouring allowing the issues to be determined on their merits. [ 18 ] Balancing all of the foregoing considerations, I was of the view that the substantial issues engaged on the appeal, the existence of a bona fide intention to appeal, the relative timeliness of the application to reinstate, the absence of any prejudice that could not be substantially ameliorated and the potential negative impact on the children if the appeal was not allowed to proceed, overbalanced other considerations and favoured reinstatement.

I also note that had the applicant taken the step of filing the transcript of the evidence (which the mother’s counsel had obtained as part of his work towards perfection of the appeal), either with or without the rest of the appeal book, as soon as he had obtained it, that filing in itself would have constituted a further step in the process of the appeal and postponed the running of the twelve-month deemed abandonment period beyond the date of the Registrar’s notice in any event.

Conclusion and Disposition [ 19 ] In the result, I allowed the application and ordered the notice of appeal be reinstated as of the date of the hearing, August 25, 2015. I also granted leave to the respondent to file a cross-appeal. [ 20 ] Inasmuch as our rules of court place special emphasis on dealing with appeals affecting children expeditiously (see rule 57.11(2)-(6)), which is something that has not happened in this case to date, I also ordered that: 1. The appellant shall file the Appeal Book, including the transcript on or before September 8, 2015; 2.

The respondent may file a cross-appeal on or before September 25, 2015; 3. The appellant shall file her factum on the appeal and cross appeal [2] on or before October 16, 2015; 4. The respondent shall file his factum on the appeal and cross-appeal on or before November 6, 2015; and 5. The appeal shall be heard on November 19, 2015 commencing at 10:00 A.M. [3] [ 21 ] As to costs of the application, the mother’s counsel sought an order that costs be in the cause. Respondent’s counsel asked that there be no order as to costs.

Inasmuch as the application would not have been necessary at all if the appeal had been perfected in a timely manner, it is inappropriate for the appellant to be given the opportunity to recoup the costs of the application indirectly as part of an order for costs on the appeal if she is ultimately successful. In fact, rule 57.20(8) contemplates a possible order that the applicant for reinstatement, or his or her solicitor, pay the costs of the application on a solicitor-client basis even if successful on the application.

Counsel for the respondent did not seek that here but did submit that his client should have no exposure to costs relating to the application. In the circumstances, a provision that there be no order as to costs was made. This means that even if the appellant is successful on the appeal and is awarded costs, those costs should not include anything related to the current application. ______________________________ J. D. Green C.J.N.L.