2016 MBCA 84, 2016 MBCA 84

Citation: Lenko v Government of Manitoba et al, Date: 20160902 2016 MBCA 84 Docket: AI15-30-08495 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : ) G. D. Lenko ) on his own behalf GARY D. LENKO ) ) A. J. Ladyka ) for the Respondents (Plaintiff) Appellant ) Government of Manitoba ) and Manitoba Housing ) and Renewal Corporation - and - ) ) W. M. Onchulenko ) for the Respondent ) Canada Mortgage THE GOVERNMENT OF MANITOBA, ) and Housing Corporation THE MANITOBA HOUSING ) AND RENEWAL CORPORATION, ) J. D.

Hall THE CITY OF WINNIPEG and THE ) on a watching brief for CANADA MORTGAGE AND ) the Respondent HOUSING CORPORATION ) City of Winnipeg ) ) Appeal heard and (Defendants) Respondents ) Decision pronounced: ) September 2, 2016 On appeal from 2015 MBCA 93 HAMILTON JA (for the Court): [ 1 ] The appellant appealed the decision of a judge of this Court, sitting in chambers, denying the appellant’s motion for an extension of time to perfect his appeal. We dismissed the appeal at the hearing, indicating that our brief reasons would follow.

These are those reasons. [ 2 ] The appellant filed a notice of appeal of an order of a judge of the Court of the Queen’s Bench presiding over the civil motions list. The motion judge dismissed the appellant’s motion seeking various orders related to his action, which is governed by Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, r 20A, including the appointment of a new case conference judge, and the cancellation of the date set for the hearing of motions for

summary judgment dismissing the action brought by each defendant. [ 3 ] The appellant did not file his factum or appeal book within the time required by the Manitoba, Court of Appeal Rules , Man Reg 555/88R. [ 4 ] In his written decision, the chambers judge noted that the Registrar of the Court of Appeal gave the appellant two notices with respect to the requirements to perfect the appeal. He identified the three well-known factors that the appellant had to establish to be successful in his motion to extend time to perfect his appeal (see Bohemier et al v CIBC Mortgages Inc , 2001 MBCA 161 , 160 ManR (2d) 39 ).

He concluded that the appeal is “without merit” (at para 9) and that the appellant “failed to adhere to any of the time lines

provided by the rules” (at para 10). [ 5 ] The appellant argued that the chambers judge misapprehended the evidence concerning his action and the reasons for his delay, and erred in law by failing to consider the importance of clarifying the law with respect to proceedings under r 20A of the Court of Queen’s Bench Rules . [ 6 ] The decision of the chambers judge was a discretionary decision. It is entitled to deference unless he erred in principle or the decision is so clearly wrong as to amount to an injustice.

See Brandt v Brandt , 2000 MBCA 46 , 148 ManR (2d) 134 ; and Munro et al v Canada (Attorney General) et al , 2016 MBCA 31 . [ 7 ] The appellant’s action has involved numerous case conferences and court proceedings. These include his appeal of the order of a judge of the Court of Queen’s Bench (not the motion judge or the case conference judge), granting

summary judgment dismissing his action in which the appellant was partially successful with respect to his claim in negligent misrepresentation against the City of Winnipeg. See Lenko v The Government of Manitoba et al , 2016 MBCA 52 . [ 8 ] We agree with the chambers judge that the decision of the motion judge was a discretionary one, and that the appellant did not identify any arguable grounds of appeal of that decision.

The appellant has not demonstrated that the chambers judge misapprehended any evidence relevant to his motion to perfect his appeal, erred in principle or that the decision is so clearly wrong as to amount to an injustice. [ 9 ] For these reasons, the appeal was dismissed with costs in the amount of $2,020 (in accordance with Tariff B of the Court of Appeal Rules ) in favour of each of The Manitoba Housing and Renewal Corporation and The Canada Mortgage and Housing Corporation. The requirement for the appellant to sign the certificate of decision and the bill of costs was waived. JA JA JA