r v Montcalm, 2020 MBCA 97

Citation: Penner v Montcalm (Rural Municipality), Date: 20201006 2020 MBCA 97 Docket: AI20-30-09422 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : douglas john penner ) ) (Plaintiff) Appellant ) D. J. Penner ) on his own behalf - and - ) ) A. M.

Friesen richard boon ) for the Respondent ) (Plaintiff) ) Chambers motion heard: ) September 24, 2020 - and - ) ) Decision pronounced: rural municipality of montcalm ) October 6, 2020 ) (Defendant) Respondent ) mainella JA [ 1 ] The plaintiff, Douglas John Penner (Penner) , moves, pursuant to r 28.1 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R (the CA Rules ), for an extension of time to file his appeal book and factum. The background to this motion is as follows. [ 2 ] The motion judge granted

summary judgment in favour of the defendant, dismissing a consolidated action filed by Penner and the plaintiff, Richard Boon (Boon), in relation to a tax sale of two properties near Morris, Manitoba (see 2019 MBQB 122 ). The defendant was also awarded solicitor/client costs. The order was ultimately entered on January 27, 2020. [ 3 ] On February 25, 2020, Penner filed a notice of appeal. Boon did not appeal.

According to the CA Rules , Penner’s appeal book and factum had to be filed on or before April 10, 2020. [ 4 ] On May 12, 2020, the registrar wrote to Penner, advising him that he had not filed his appeal book and factum in accordance with the time limits set by the CA Rules and that, if he failed to do so by June 11, 2020, the appeal would be deemed abandoned pursuant to r 33(4). [ 5 ] Between June 8-10, 2020, Penner wrote three letters to the registrar asking for an extension of time of “two or three month[s]”.

He advised he intended to proceed with the appeal but was having difficulties preparing his materials due to the COVID-19 pandemic and the lack of access to the internet from his rural residence.

He told the registrar, “don’t allow the pandemic to stampede our justice system.” In terms of the pandemic, Penner provided a note from his physician, indicating that he had been in strict isolation, and he further advised that the pandemic had restricted his ability to physically visit libraries to do research on his appeal or to access the internet from the library. [ 6 ] On July 6, 2000, the registrar wrote to Penner and granted him an extension of time to perfect his appeal until September 11, 2020; otherwise, the appeal would be deemed abandoned.

Penner failed to meet the extended deadline. [ 7 ] In the affidavit filed in support of the motion, Penner deposes that he is 78 years old with several health conditions making him susceptible to the effects of COVID-19. Based on his experience with the polio epidemic in the 1950s, he knows the importance of staying close to home and keeping his personal contacts to the bare essentials. His lack of internet access and physical access to libraries during the pandemic has prevented his ability to prepare his appeal materials.

He also has had to devote his time to deal with the clean-up of his property as a result of orders issued by local bylaw officials because his property was deemed unsightly. He also says he has two years of work to prune trees on his property to deal with a snow storm from October 2019. [ 8 ] Penner advised the Court that he could not commit to a firm date to perfect his appeal. As he explained in his affidavit and his submissions, his intention for the next two to three months, before the onset of winter, is to focus his attention on improvements to his property and winterization, such as cleaning his chimney.

He did not take issue with defence counsel’s assertion that he has prepared none of the necessary documentation to perfect his appeal despite having a paper copy of the materials in the lower

court and the motion’s judge’s written decision delivered over a year ago on August 23, 2019. [ 9 ] The defendant is opposed to the request for an extension of time. It says Penner has not presented a reasonable explanation for the delay and there are no arguable grounds of appeal. [ 10 ] The criteria for an extension of time to perfect an appeal are well-known. The applicant must demonstrate: (

i) there was a continuous intention to appeal; (ii) there is a reasonable explanation for the delay; (iii) there are arguable grounds of appeal; and (iv) any prejudice suffered by the other party can be addressed. (See Finley et al v Tines , 2011 MBCA 101 at para 2 ; and Delichte v Rogers , 2018 MBCA 79 , aff’d 2019 MBCA 69 .) [ 11 ] The defendant only contests the second and third criteria.

These four criteria, however, are not a rigid test to be mechanically applied; the ultimate question for the Court is whether it is right and just in all of the circumstances to grant or refuse the extension of time ( ibid at para 17). [ 12 ] In terms of the reasonableness of the delay, I accept, for the purposes of this motion, that the COVID-19 pandemic has impaired Penner’s ability to perfect his appeal to some degree. While he has had an additional five months since his filing deadline in April to prepare his materials, he still has not done so.

I accept the defendant’s submission that Penner has chosen to prioritise other activities, such as cleaning his yard and preparing for winter, but the pandemic, I think, has exposed what was already known—that there is a digital divide in our society between the haves and the have nots. Many take access to the internet for granted; that is not a privilege all Canadians enjoy—particularly in rural areas or amongst marginalized communities.

While it does appear that Penner could have reasonably done more to perfect the appeal in the almost seven months since it was filed, that is not the determinative factor in the circumstances. [ 13 ] The real difficulty here is the question of whether Penner has demonstrated that he has an arguable ground of appeal.

That criterion was explained this way by Monnin JA in Mann v Mitchell , 2019 MBCA 44 (at para 3 ): “ an arguable ground is one which survives a preliminary examination under the applicable standard of review and has the potential to succeed and to change the result of the hearing below (see Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 ; and Boryskiewich v Stuart , 2014 MBCA 77 ). ” [ 14 ] While demonstration of an arguable ground of appeal is a relatively low threshold to meet, I am not persuaded that an arguable ground of appeal has been identified by Penner in the materials filed on this motion.

In particular, the state of Penner’s notice of appeal is derelict. [ 15 ] Rule 4 of the CA Rules sets out the requisite content of a notice of appeal which includes that “the grounds to be argued” be set out (r 4(f)). To comply with this requirement, an appellant must particularize in the notice of appeal the nature of each alleged error being appealed in a discernible fashion, even if imperfectly done.

New grounds may not be added later without leave of the Court. [ 16 ] Penner’s notice of appeal is unintelligible as to why the motion judge erred in her 28 pages of reasons as to her decision to dismiss the consolidated action or to award solicitor/client costs.

This is despite the fact that, in her reasons, she clearly set out the relief the plaintiffs were requesting (see para 5); the allegations they were making (see para 9); the six issues she had to decide as to whether there was a genuine issue requiring a trial (see paras 10-11); and the issue of solicitor/client costs (see para 69). [ 17 ] Rather than listing grounds of appeal, as required by r 4 of the CA Rules , the notice of appeal is a meandering and incoherent document; after the journey through it, one does not know where one has been.

Penner’s submissions did little to bring clarity to the notice of appeal. He said the defendant carries on government in an “unconscionable fashion” and its officials had engaged in “criminal” actions. He envisions that his appeal take the form of a wide-ranging inquiry into the functioning of the defendant’s municipal government.

That type of review is well outside the limited jurisdiction of the Court of Appeal which, as a court of error, is concerned with “correction of errors of fact, errors of law and errors in the application of the law to the facts” ( Donald JM Brown with the assistance of David Fairlie, Civil Appeals (Toronto: Thomson Reuters, 2019) vol 1 (loose-leaf updated 2020, release 2), ch 1 at 1-3) . [ 18 ] The best that can be said about the notice of appeal is that, in it, Penner makes an oblique comment that he had a leasehold interest in one of the properties that was subject to the tax sale.

The difficulty for him is the motion judge found that the tax sale of the property in question was not challenged in the prescribed manner by the filing of an action within 30 days after the date of auction, as required by section 377(2) of The Municipal Act , CCSM c M225 (see paras 27-29). Penner was out of time to assert any legal right he allegedly had and never sought an extension of time.

Absent some reasonable prospect of success for Penner setting aside that aspect of the motion judge’s decision, the issue of the effect of his leasehold interest to the tax sale of the property does not, in my view, amount to an arguable ground of appeal. [ 19 ] In order to establish an arguable ground of appeal on a motion for an extension of time, an applicant must do more than simply rely on a bald assertion of “trust me” as to the merits of their appeal ( Delichte at para 28).

The absence of proposed grounds of appeal or a basis to support an arguable ground of appeal in the materials Penner has filed on his motion for an extension of time favours finality concerns (see Paulsson v Cooper , 2017 CarswellOnt 16613 at paras 2-3 (CA) ) . [ 20 ] In my view, it is not right and just in all of the circumstances to grant an extension of time for Penner to file his appeal book and factum. [ 21 ] In the result, the motion is dismissed with costs.

JA