John J. Henley First Applicant And: Christopher M. Henley Second Applicant And: Brian A. Henley First Respondent And: Janet M. Henley, K.C. Second Respondent, 2023 NLSC 47

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Henley Estate (Re) , 2023 NLSC 47 Date : March 28, 2023 Docket : 201301E12144 In The Matter of the Estate of Alec G. Henley, late of the City of St. John's, in the Province of Newfoundland and Labrador, retired businessman Between: John J. Henley First Applicant And: Christopher M. Henley Second Applicant And: Brian A. Henley First Respondent And: Janet M. Henley, K.C. Second Respondent Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 21 and 24, 2023

Summary:

The Application to Strike the Respondents’ Rule 20A Application was dismissed. Appearances: Allison S. Conway Appearing on behalf of the Applicants Douglas W. Wright Appearing on behalf of the First Respondent Janet M. Henley, K.C. Appearing on behalf of herself Authorities Cited: CASES CONSIDERED: Henley Estate (Re) , 2022 NLSC 103 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Khaladkar J. : INTRODUCTION [ 1 ] I wrote a decision in this matter on June 23, 2022. It is reported as Henley Estate (Re) , 2022 NLSC 103 .

In that decision I exercised my discretion to refrain from awarding costs to any of the parties in an effort to put an end to some divisive intra-familial bickering that had persisted for much too long. [ 2 ] The Respondents filed a Rule 20A application (the “Application”), pursuant to the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D (the “ Rules ”), to have my decision relating to costs suspended on the basis that they had made a formal Offer to Settle in accordance with the Rules that would have been more favourable to the Offerees than what they obtained as a result of my Order. [ 3 ] The Applicants herein take the position that, in contravention of Rule 20A.08(3), the Respondents were out of time in filing their Application. [ 4 ] The Applicants argue that I am, therefore, functus officio and have no jurisdiction to entertain the Application. facts [ 5 ] On July 6, 2022 counsel for the Respondents, Douglas W.

Wright, communicated by email with the then counsel for the Applicants, John A. Bruce, and forwarded his Application with supporting Affidavit – which he indicated he would be filing with the Court that afternoon. [ 6 ] On July 6, 2022 a letter was drafted by Mr. Wright addressed to the Supreme Court of Newfoundland and Labrador. The letter referenced the Application, supporting Affidavit and a draft Order. It included a cheque in the amount of $73.00 on account of the filing fee. [ 7 ] On July 6, 2022 Mr. Bruce emailed Mr.

Wright indicating that the Style of Cause ought to be amended to match the Style of Cause in my decision of June 23, 2022. [ 8 ] On July 6, 2022 Mr. Wright attended to revising the Style of Cause and forwarded the revised Application to Mr. Bruce. He indicated that he would get the Application filed the following morning.

[ 9 ] On July 6, 2022 Mr. Wright emailed his client and informed him that the Application was completed and served on Mr. Bruce that day, and indicated that it would be filed with the Court the following day. Mr. Wright indicated to his client that “The deadline is Friday”. Friday would have been July 8, 2022. [ 10 ] The

Summary of Current Document table on the cover of the Application indicates that the Date of Filing of Document was July 7, 2022. [ 11 ] The Court’s “Filed” stamp shows: July 13, 2022. [ 12 ] The 15 days contemplated by Rule 20A.08(3) expired on July 8, 2022. [ 13 ] In her second affidavit filed with the Court, Christina Dwyer, a paralegal with Mr. Wright’s office, avers: 12.

I arranged for delivery of the updated Application and supporting documents to the Court Registry on July 7, 2022 and compiled the package for filing, using the Cox & Palmer cheque and the cover letter that had been prepared and dated the day before. 13.

I verily believe that the Application and supporting documents were delivered to the Registry of the Supreme Court of Newfoundland and Labrador on July 7, 2022 by a staff member or articling student of Cox & Palmer. [ 14 ] Counsel for the Applicants submitted that if there had been evidence from the person who filed the documents at the Court House indicating that they had done so on July 7, 2022 she would not have brought the within Application to Strike. However, counsel argued that in the absence of such evidence the filing date noted on the document, namely July 13, 2022 must be taken as the date of filing.

As such it was outside the 15-day period dictated by the Rules and the Court has no jurisdiction to deal with the matter. analysis [ 15 ] The issue on the Application to Strike is whether or not the Respondents filed their Application within the 15-day limit imposed by Rule 20A.08(3). [ 16 ] Rule 20A.08(3) states as follows:

(3) If after a trial or hearing (

a) an offer to settle had been made and not revoked or accepted prior to commencement of the trial or hearing; and (

b) an application for a determination as to costs based on the application of Rule 20A is made by a party within 15 days following the filing or delivery of the decision or order the decision of a judge with respect to costs shall be suspended pending determination of the application in clause (b). [ 17 ] The determination as to whether or not a document was filed with the Court on a particular date is a question of fact. The standard that I must apply in arriving at a decision on that issue is the balance of probabilities.

In arriving at a decision regarding the filing of documents with the Court, I am entitled to take judicial notice of the procedures and policies followed by the Court in the judicial administration of its own process. [ 18 ] It is clear to me, from the affidavit evidence submitted, that the Application, and supporting documentation, were produced, with amendments on July 6, 2022. [ 19 ] It is equally clear that Mr. Wright intended to file the Application on July 7, 2022 and was aware that the deadline for filing the document was July 8, 2022. [ 20 ] I accept the evidence of Christina Dwyer that Mr.

Wright wrote in the date of filing (July 7, 2022), and that she recognized his handwriting. The “7” on the filing date, which was written in, has a line through it: 7 after the European fashion. It is, I find, distinguishable enough that the affiant would be able to identify it as a character written by Mr. Wright. [ 21 ] The process in the Supreme Court of Newfoundland and Labrador with respect to the filing of applications is as follows: a. When an application is received, the cover page containing the Style of Cause and the

Summary of Current Document, is timestamped on the upper right hand corner. The timestamp contains the date and time, including hour and minutes, when the document was received. The stamp contains the month, date, year, am/pm and time. For example: DEC 162022 PM 4:48 b. The Date of Filing Document located in the

Summary of Current Document table is filled in by the applicant or the applicant’s counsel, as the case may be. In this case Mr. Wright. c. When the document is filed in its appropriate file, a stamp is put on the bottom right hand corner of the document indicating that it has been filed, the date on which it has been filed, and the initials of the person filing it.

[ 22 ] The filing date located on the bottom right hand corner is not the same as the date on which the document is received. [ 23 ] In the case before me now the document has no timestamp in the upper right hand corner. Staff in the Registry inadvertently missed timestamping the document. conclusion [ 24 ] I am satisfied, on a balance of probabilities, that the Application was filed on July 7, 2022.

Rule 20A.08(3) is satisfied, and I have jurisdiction to entertain the Application brought by the Respondents. [ 25 ] The Application to Strike the Respondents’ Application is dismissed. [ 26 ] Lawyers are officers of the Court. Their representations to one another have to mean something. In this case, counsel for the First Respondent clearly articulated in the Affidavit material that his Application was filed on July 7, 2022. The email correspondence with Mr.

Bruce, who was counsel for the Applicants at the time, clearly notes that the Application was served on him on July 6, 2022 and was about to be filed in Court. The email documentation clearly shows that Mr. Wright understood that the 15-day time period would run out on July 8, and that was his filing deadline. [ 27 ] Despite this knowledge the Applicants saw fit to continue with their Application to Strike and assert that the Respondents should have filed evidence of the actual delivery to the Court House by an articling clerk or a courier.

This would have elevated the applicable standard of proof from a balance of probabilities to proof beyond a reasonable doubt. This position was unwarranted and served only to obfuscate the issues before the Court. [ 28 ] Under the circumstances, it is appropriate to award costs on an elevated basis to the Respondents. Brian A. Henley shall have his costs calculated under Column V of the Scale of Costs. Janet M.

Henley, K.C. shall have her costs under Column IV because, although she is no longer practicing, she has expended a great deal of time and effort in responding to the Application to Strike. _____________________________ Vikas Khaladkar Justice