2011 NLCA 48, 2011 NLCA 48

Date: 20110629 Docket: 10/46 Citation: Humby v. Newfoundland and Labrador Housing Corporation, 2011 NLCA 48 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : ELI HUMBY FIRST APPELLANT/APPLICANT AND : CENTRAL SPRINGS LIMITED SECOND APPELLANT/APPLICANT AND : NEWFOUNDLAND AND LABRADOR HOUSING CORPORATION RESPONDENT/APPLICANT Coram: Welsh, Barry and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General), 200701T4090 Applications Heard: June 14, 2011 Decision Rendered: June 29, 2011 Reasons for Decision by Harrington, J.A.

Concurred in by Welsh and Barry, JJ.A. Counsel for the Appellants: Robert Anstey Counsel for the Respondent: David Hurley, Q.C.

Harrington, J.A.: [ 1 ] The appellants have appealed a decision of the Trial Division regarding ownership of property at Gander. Although the notice of appeal was filed April 5, 2010, the appeal book has not yet been filed. [ 2 ] On April 1, 2011, shortly before the appeal would have been deemed abandoned because of the expiry of the twelve month period prescribed in Rule 57.20(4) of the Rules of the Supreme Court, 1986 , appellants’ counsel filed an application, returnable June 28, 2011, to dispense with a trial transcript for the hearing of the appeal because of the lack of funds to pay the cost of preparation. On June 6, 2011, the respondent applied for an order (

i) striking the appeal or (ii) granting security for costs in the amount of $10,000 and (iii) setting aside the stay of an advertised sale of the Gander property granted by a Trial Division judge on application by the appellants in May, 2011.

Both applications were heard together by order of the Court on June 14, 2011 and judgment was reserved. [ 3 ] At the hearing of the appellants’ application for an order dispensing with a trial transcript for the appeal book, counsel submitted that his impecunious clients would prefer to obtain a transcript if funds are forthcoming from ongoing Federal Court litigation between the appellants and the Canada Revenue Agency (CRA).

Counsel requested that the Court permit an extension of time for the filing of the trial transcript for a period of three months in the expectation of obtaining a favourable ruling regarding the recovery of taxed costs from the Crown for his clients.

If that goal is not achieved he would file the appeal book without a trial transcript within a further thirty days. [ 4 ] Respondent’s counsel was content to let the Court decide whether the appellants should be entitled to dispense with the preparation of a trial transcript and to set time lines for the filing of the appeal book provided there would not be undue delay.

However, respondent’s counsel further submitted that security for costs should be granted due to the appellants’ acknowledged impecuniosity. [ 5 ] Respondent’s counsel also requested that the stay ordered by the Trial Division of the property sale should be set aside in order to permit the land subject to litigation to be sold, since the metal structure on the property is deteriorating. The sale proceeds would be held in escrow pending disposition of the appeal. Appellants’ counsel responded that the property in question is unique in that it is the last building lot in the main industrial park in Gander.

He also alleges that there is an outstanding issue of whether the owner of the freehold is a third party company associated with the appellants, whose interest would be irreparably harmed if the sale proceedings took place before the appeal is adjudicated. [ 6 ] With respect to the respondent’s application to strike and the appellants’ application for a time extension for the filing of the appeal book, the current circumstances justify an extension of the time for the completion of the appeal book with or without a trial transcript.

In the result the appellants shall have an extension of four months from the date of filing of this decision to file the appeal book with or without a trial transcript. [ 7 ] With regard to the respondent’s application to vacate the stay order, the respondent did not appeal this order and the application is therefore not properly before this Court. [ 8 ] Consideration of the respondent’s application for security for costs is deferred until the filing of the appeal book.

The respondent shall have leave should it wish to bring on its application based on the circumstances existing at that time. [ 9 ] Appellants’ counsel seeks solicitor-client costs on the present applications. The criteria for an award of solicitor-client costs were reviewed in Holloway v. Holloway , 2001 NFCA 17 .

The Court in Holloway at para. 69, affirmed that a high threshold should be set for the granting of such awards, requiring evidence of impropriety or unnecessary harm in the nature of: … scandalous, outrageous, reprehensible, deserving of reproof or rebuke, bad faith, serious misconduct, flagrant acts meriting censure, acting on improper motives, serious dereliction of duty and gross neglect – conduct bordering on abuse of the court and its process, not merely negligence or mistake in bona fide assuming a case has some merit when in fact it does not… [Underlining in original deleted] [ 10 ] Here the notice of sale was first published on May 5, 2011, more than twelve months after the filing of the notice of appeal.

Counsel states that he did not become aware that the appellants had filed an application with the Court to dispense with the transcript until late May, 2011. The sale notice went out on the mistaken assumption that a deemed abandonment of the appeal had occurred pursuant to Rule 57.20(4) because of a perceived lack of any action by the appellants within the prescribed time period. Given these circumstances and the delay by the appellants in taking any steps, the appellants have not established that the conduct of the respondent warrants an award of solicitor-client costs. [ 11 ] In

summary, the following orders are made:

(1) The appeal book with or without a transcript shall be filed not later than four months from the date of the filing of this decision after which the appellants shall promptly proceed with the appeal in accordance with the Rules.

(2) The respondent’s application to strike the notice of appeal and to vacate the Trial Division stay of the sale of the property at 25 Baird Place, Gander, NL is dismissed.

(3) Given the current circumstances of this appeal, the respondent’s application for security for costs is deferred until the filing of the appeal book at which time the respondent shall have leave to bring on its application.

(4) Costs shall be costs in the cause. _________________________

M. F. Harrington, J.A. I Concur: ____________________________ B. G. Welsh, J.A. I Concur: ____________________________ L. D. Barry, J.A.