Lughas v Hebert, 2015 MBCA 110

Citation: Lughas v Hebert, 2015 MBCA 110 Date: 20151202 Docket: AI15-30-08346 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : LAMBERT LUGHAS ) ) L. Lughas (Plaintiff) (Appellant) Appellant ) on his own behalf ) - and - ) ) R. D. J.

Dawson DAVID HEBERT ) for the Respondent ) (Defendant) (Respondent) Respondent ) ) Chambers motion heard: - and - ) November 19, 2015 ) JOHN RAMSAY and RICHARD ) CASSIDY ) Decision pronounced: ) December 2, 2015 (Defendants) (Respondents) ) LEMAISTRE JA [ 1 ] The appellant seeks an extension of time to perfect his appeal. [ 2 ] Pursuant to the Manitoba, Court of Appeal Rules , Man Reg 555/88 R, the time for filing and service of an appellant’s appeal book and factum is 45 days after the filing of the notice of appeal (see r 28(1)). The notice of appeal was filed on February 23, 2015.

On October 22, 2015, the appellant appeared before the chambers judge on a motion to extend the time to file his factum and appeal book. He was granted an extension to November 12, 2015, and the matter was adjourned to November 19, 2015, for hearing if the appellant did not meet this deadline. [ 3 ] The appellant filed his factum on November 12, 2015, but did not file his appeal book. [ 4 ] In order to obtain an extension of time to perfect an appeal, the appellant must establish the following: (

i) that he had a continuous intention to appeal from a time within the period when the appeal should have been commenced; (ii) that he has a reasonable explanation for the delay; (iii) that he has arguable grounds of appeal; and (iv) that any prejudice suffered by the other party can be addressed.

See Zalizniak v Zalizniak , 2006 MBCA 161 , 212 ManR (2d) 114 ; and Lughas v Manitoba Public Insurance Corp , 2014 MBCA 63 . [ 5 ] Furthermore, the Court may grant the extension even if all of the criteria have not been met if it is “right and just in all of the circumstances” ( Hunter v Hunter , 2000 MBCA 134 at para 6 , 150 ManR (2d) 291 ). [ 6 ] The appellant seeks to appeal the decision of the motion judge endorsed on January 21, 2015, which upheld the decision of the Master granting the respondent’s motion for

summary judgment and dismissing the action against the respondent. [ 7 ] The respondent concedes that the appellant has demonstrated a continuous intention to appeal and does not take any significant issue with the reasonableness of the appellant’s explanation for the delay. However, he says that the appellant has not demonstrated any arguable grounds of appeal.

[ 8 ] The appellant asserts that the motion judge ought to have advised him he had a right to request an adjournment in order to file a motion for leave to adduce further evidence pursuant to Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, r 62.01(13)(b), and that the motion judge erred in denying the appeal and upholding the Master’s decision. [ 9 ] The appellant argues that the new evidence, in the form of affidavits, was on the court file and so the motion judge should have taken them into account when making his decision.

He quotes our Court in Coleman v Pateman Farms Ltd et al , 2001 MBCA 75 , 156 ManR (2d) 144 , in asserting his view that the rules of the court ought not to be applied strictly when a party is not represented by counsel. However, Philp JA also pointed out (at para 16): The merits of an appeal is a matter to be considered on an application to set aside the deemed abandonment of the appeal. That is an issue that governs all litigants who are faced with the consequences of their delay.

The pro se status of the appellant does not excuse him from addressing that fundamental requirement. [ 10 ] It is clear from the endorsement sheet that the motion judge considered whether to grant leave to adduce further evidence, but that the appellant had not satisfied the test regarding admissibility of the new evidence. Furthermore, there is no merit to the argument that the motion judge should have told him he could seek an adjournment to file a motion to adduce further evidence. [ 11 ] The decisions to deny further evidence and to grant

summary judgment are discretionary decisions. The standard of review in a discretionary decision is very high and permits appellate intervention only where there is palpable and overriding error, where the motion judge misdirected himself or where the decision is so clearly wrong as to amount to an injustice. See Towers Ltd v Quinton’s Cleaner’s Ltd et al , 2009 MBCA 81 , 245 ManR (2d) 70 . [ 12 ] Even though the appeal book was not filed within the time permitted by the chambers judge on October 22, 2015, it was available on November 19, 2015, when this motion was heard.

I have reviewed the appeal book and the reasons of the Master, which were not included in the appeal book, but which are a matter of public record. I see no error by the motion judge in adopting the reasons of the Master. [ 13 ] I acknowledge that the appellant does not have counsel and appears to have struggled to understand the court procedures. However, I am not persuaded that there are arguable grounds of appeal or that it is right and just in all of the circumstances that time to perfect the appeal should be extended. [ 14 ] The motion to extend time to perfect the appeal is dismissed.

There will be an order for costs of $350 in favour of the respondent in accordance with the applicable Tariff. The respondent need not obtain consent of the appellant to the form of the order before presentation to the Court. JA