Lenko v Government of Manitoba et al, 2015 MBCA 93

Citation: Lenko v Government of Manitoba et al, 2015 MBCA 93 Date: 20151006 Docket: AI14-30-08253 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) G. D. Lenko ) on his own behalf GARY D. LENKO ) ) A. J. Ladyka (Plaintiff) Appellant ) for the Respondents ) Government of Manitoba and ) Manitoba Housing and ) Renewal Corporation - and - ) ) M. K. Muller ) for the Respondent City of ) Winnipeg THE GOVERNMENT OF MANITOBA, ) THE MANITOBA HOUSING AND ) W. M.

Onchulenko RENEWAL CORPORATION, THE CITY ) for the Respondent OF WINNIPEG and THE CANADA ) Canada Mortgage and MORTGAGE AND HOUSING ) Housing Corporation CORPORATION ) ) Chambers motion heard: (Defendants) Respondents ) September 10, 2015 ) ) Decision pronounced: ) October 6, 2015 MICHEL A.

MONNIN JA [ 1 ] The plaintiff seeks leave to be granted an extension of time within which to perfect his appeal, and file his appeal book and factum. [ 2 ] On October 6, 2014, the plaintiff filed a notice of appeal seeking to set aside an order granted on June 12, 2014, dismissing an application by the plaintiff seeking various remedies against the defendants including a request that a new case conference judge be appointed. [ 3 ] The action was being tried under the provisions of Queen’s Bench Rule 20A, ManReg 553/88.

That rule provides that motions such as the plaintiff’s are to be heard by the case conference judge. At that time, there had already been numerous appearances before the case conference judge.

The motion judge dismissed the application and awarded costs against the plaintiff. [ 4 ] On December 1, 2014, the plaintiff was served with a notice by a Deputy Registrar of this Court that his appeal book and factum were to be filed within 45 days. [ 5 ] On April 23, 2015, the plaintiff was served with a further notice by the Registrar advising him that he had exceeded the filing time limits and that unless his appeal was perfected, it would be deemed abandoned within 30 days of the notice, namely, May 23, 2015. [ 6 ] On May 15, 2015, the plaintiff filed a notice of motion seeking an extension of time to perfect his appeal.

On May 28, 2015, that application was adjourned to September 10, 2015. [ 7 ] In order to be successful on his application, the plaintiff must establish that: 1) he had a continuous intention to appeal from the time the order being appealed was made; 2) that he provides a reasonable explanation for the delay; and 3) that he has arguable grounds of appeal.

See Bohemier et al v CIBC Mortgages Inc , 2001 MBCA 161 , 160 ManR (2d) 39. [ 8 ] Although not set out in his affidavit in support of his motion, the plaintiff argues that he had a continuous intention of appealing and that he delayed in perfecting his appeal because he was attempting to consolidate this present appeal with two other appeals, which he alleges were interrelated.

[ 9 ] The plaintiff seeks to appeal from a discretionary procedural order. In my view, there are no arguable grounds on which the plaintiff can base his appeal. In point of fact, I find it to be without merit. [ 10 ] It is clear that from the earliest instance, the plaintiff has failed to adhere to any of the time lines provided by the rules and that his actions are simply an abuse of judicial resources and time. [ 11 ] His application for an extension of time to perfect his appeal and file his materials is accordingly dismissed with costs. JA