Dundas v. Schafer, 2012 MBCA 22

Citation: Dundas v. Schafer, 2012 MBCA 22 Date: 20120307 Docket: AF 11-30-07640 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN: JENNIFER LYNNE DUNDAS ) G. J. Orle, Q.C. and ) C. Shire (Petitioner) Appellant ) for the Appellant ) - and - ) E.

Hirsch ) for the RespondentARTHUR MELVIN SCHAFER ) ) Appeal heard and (Respondent) Respondent ) Decision pronounced: ) March 7, 2012 MONNIN J.A. (for the Court): 1 We are all of the view that this appeal should be dismissed. 2 This is an appeal by the petitioner in a family proceeding with respect to a decision of a motions court judgedismissing appeals of two orders made by the master. In the first order, the master dismissed a motion to consolidate a civil proceedingwith the family proceeding. The second order imposed costs of $1,700.

The petitioner filed notices of appeal from both orders but failedto perfect the appeals for hearing before a judge of the Family Division. 3 Shortly before the trial in the Family Division, the respondent moved to dismiss the appeals for delay. At the hearingof the motion to dismiss, the petitioner acknowledged that she was not proceeding with the appeal of the order refusing consolidation, butwas intending to challenge the validity of the cost order. The motions court judge granted the motion to dismiss both appeals.

Theprincipal ground of this appeal is whether the motions court judge had the jurisdiction to dismiss the appeals, and if he did, whether heproperly exercised his discretion. 4 The trial in the Family Division has been completed and a decision is currently under reserve. A consolidation ofthose proceedings with the civil proceeding still outstanding in the General Division is no longer possible. Therefore, the substantivemotion to appeal the master’s decision to refuse the consolidation is moot.

The petitioner, if successful on this appeal, wishes to return tothe trial court to contest the $1,700 in costs awarded by the master, arguing, amongst other things, the correctness of the master’sdecision on the substantive motion. 5 We are of the view that this case does not meet the test set out in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, and later decisions of this court for us to hear and decide issues which are moot.

Neither thiscourt nor the trial court should be expending judicial resources to determine the correctness of a decision where “the substratum” of thelitigation has disappeared (see Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), (SCC),[1995] 2 S.C.R. 97). We decline to do so in this case. 6 Given our decision, we express no view on the reasons and decision of the motions court judge in relation to the

motion to dismiss. The appeal is dismissed with costs. J.A. J.A. J.A.