Campbell v. Campbell, 2011 MBCA 23

Citation: Campbell v. Campbell, 2011 MBCA 23 Date: 20110307 Docket: AF 10-30-07446 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : BRENDA MARLENE CAMPBELL ) R. H. Johnston, Q.C. ) for the Applicant (Petitioner) Respondent ) ) K. R. Ferriss ) for the Respondent - and - ) ) Chambers motion heard: ) February 17, 2011 DENIS ALLEN CAMPBELL ) ) Decision pronounced: (Respondent) Applicant ) March 7, 2011 BEARD J.A. I.

THE ISSUE 1 The applicant has applied to extend the time to file his factum, which application is opposed by the respondent on the basis that there are no arguable grounds of appeal. 2 In the underlying proceeding, the motions judge found the applicant guilty of civil contempt of court for failing to comply with the judge’s earlier order granted on June 25, 2010, but not signed and filed until August 24, 2010, to give possession of certain chattels to the respondent, and ordered him to pay solicitor/client costs of $5,000.

The applicant is not appealing the underlying order regarding the property, but he wishes to appeal the finding of contempt and the order of costs. II. FACTS 3 This file originated in Brandon, the parties reside in Brandon, and the applicant’s lawyer practises in that city. The applicant filed his notice of appeal on November 2, 2010. The transcript was ordered at that time and filed with the court on November 22, 2010. According to Rule 26(1) of the Court of Appeal Rules, the applicant was required to file his factum within 45 days after the filing of the transcript, which was by January 6, 2011.

The applicant filed the appeal book on December 10, 2010, and prepared the factum and forwarded an unfiled copy to opposing counsel before January 6, 2011. 4 According to the affidavit filed on behalf of the applicant, the failure to file the factum within time can be attributed to two causes. The support person in his lawyer’s office, who was to send the factum by courier to the Court of Appeal, left work early on January 5, 2011, for a family commitment and inadvertently forgot to make those arrangements.

The document was sent by courier on January 6, 2011, but same-day delivery was not available, so it was not delivered until 9:00 a.m. on the morning of January 7, 2011. 5 Because the document was late, it could not, according to Rule 28.1, be filed without an order from a judge. Counsel for the applicant pointed out that the Christmas and New Year’s statutory holidays took up a significant period of time immediately preceding the end-period for filing, which made it more difficult to prepare, serve and have all documents filed within the required time. III.

ANALYSIS 6 The respondent argued that the criteria for extending the time for filing a factum are the same as that for filing a notice of appeal, which are set out in Bohemier et al. v. CIBC Mortgages Inc. , 2001 MBCA 161 , 160 Man.R. (2d) 39 , as follows: - there is a continuous intention to appeal from a time within the period when the appeal should have been commenced; - there is a reasonable explanation for the delay; and - there are arguable grounds of appeal. 7 The respondent has conceded that the first two criteria have been met, and is contesting the motion on the basis of the third

criteria. 8 While the applicant has an uphill climb on his appeal, I am satisfied that there is an arguable case as to both the finding of contempt and the order for costs. For example, the order, which the applicant is alleged to have breached by not returning certain items of personal property, requires that the applicant turn over a trailer and “contents,” but the order does not list the contents to be turned over. Further, ordering solicitor/client costs is unusual and requires some reasons, which were not provided in this case.

While contemptuous behaviour may support an order for solicitor/client costs, the motions judge did not indicate that the costs were as a result of that finding and, in fact, his reasons dated September 15, 2010, appear to indicate otherwise, as he made the order for costs, without giving any reasons, and then stated as follows: As to the disposition of the contempt, I’m adjourning that to October 6th to give Mr. Campbell an opportunity to comply with the disposition made today. IV.

DECISION 9 I am satisfied that there is an arguable case and, as a result, I am granting the applicant’s motion for an extension of the time to perfect his appeal. The factum and any other required documents are to be filed and served within 14 days of the date of this decision . 10 There will be no costs to either party on this motion. J.A.