Upshall v. Hickey, 2013 NLCA 59

Date: 201309 30 Docket: 1 3/64 Citation: Upshall v. Hickey , 2013 NLCA 59 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: FREDERICK EUGENE UPSHALL APPLICANT AND: SARAH ANNE HICKEY RESPONDENT Coram: Green C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 1998023019 Application Heard: September 10, 2013 Judgment Rendered: September 10, 2013 Reasons for Judgment Filed: September 30, 2013 Counsel for the Appellant: Self Represented Counsel for the Respondent: No Appearance REASONS FOR ORAL DECISION

Green C.J.N.L.: [1] The Intended Appellant, Eugene Upshall, has been fighting for at least nine years to rectify what he believes is an injusticethat has occurred as a result of the manner of division of his former wife’s unadjusted pensionable earnings under the Canada PensionPlan, R.S.C. 1985, c. C-8 consequent upon their divorce in 1999. [2] He has had many hearings before the Pensions Appeals Board, the Review Tribunal, the Federal Court and the Federal Courtof Appeal.

Although he has won some procedural points along the way and has even received sympathetic acknowledgement from somejudges that the way in which the Plan operates in some cases can cause unfairness to an ex-spouse, he has lost the ultimate battle. TheFederal Court of Appeal in June of this year denied Mr. Upshall’s challenge by way of judicial review to a Review Tribunal decisionupholding the manner of division of pension credits between him and his ex-spouse: Upshall v. Attorney General of Canada, 2013 FCA174. Although denying Mr.

Upshall a remedy, the Court did comment at paragraph 7: “in our view, the only remedy for the unfairnessMr. Upshall identifies is an amendment to provisions of the Plan”. [3] Having exhausted his remedies in the Federal Court, Mr. Upshall now seeks an extension of time to make an application forleave to appeal in this Court from a consent order entered on January 3, 2001 in the Family Division (then known as the Unified FamilyCourt) following his divorce.

That order was made over twelve years ago. [4] While it is possible that an extension of time to appeal may be granted even after an extended delay (see Philpott v. Greening(1998), (NL CA), 166 Nfld. & P.E.I.R. 130 (NFCA)), it will be the rare case where such an indulgence will bejustified. After hearing Mr. Upshall and reading his submitted materials, I concluded that an extension was not justified in this case anddenied the application. I reasoned as follows. [5] The order which Mr. Upshall seeks to appeal was an order entered with his consent.

Rule 57.02(1)(b)(ii) of the Rules of theSupreme Court, 1986 provides that an appeal from a consent order may only be made with leave of the Court. Rule 57.05 allows theCourt to extend the time for filing an application for leave to appeal where “the refusal to do so would create an injustice”. [6] This Court has previously held that factors that should be considered in determining whether refusal to grant an extension oftime to file an application for leave would create an injustice include: (

i) whether the applicant had a bona fide intention to appeal withinthe appeal period; (ii) whether there is a reasonable excuse for the failure to comply with the time limit stipulated by the rule (in thecurrent case, 10 days from the entry of the order; rule 57.02(2)); (iii) the potential merits of the proposed appeal; and (iv) the presence ofany exceptional or special circumstances justifying or working against the fairness of the extension. See Law Society (Newfoundland) v.Fahey, 2000 NFCA 19 at paragraph 3; Stockwood v.

Hayden, 2010 NLCA 39 at para. 13. [7] Applying these factors leads to the conclusion that Mr. Upshall’s application to extend time in this case should be denied. [8] As the outset, it should be noted that that Mr. Upshall has indicated that he does not actually wish to overturn or vary theconsent order in question. That order essentially divided matrimonial property, including provincial government pensions, equallybetween himself and his former spouse.

He says that he is content with such a result and that his intention was that such a positionwould also apply to his and his spouse’s Canada pension (although those pensions were not specifically mentioned in the order). Theresult of all the litigation in the Federal Court is that there will not be an equal division of the Canada pensions and that, therefore, theapparent intent of the consent order entered at the time of the termination of his marriage has become frustrated. [9] Mr.

Upshall also says that he does not wish to seek a variation of the consent order by reapplying to the Family Division on thegrounds of a subsequent material change in circumstances (the Federal Court rulings) so as to ensure that the overall matrimonialdivision is still equal. [10] All he wants, he says, is for this Court to declare that the result of the Federal Court rulings is that the intended overall equaldivision of matrimonial assets cannot now be achieved and to express an opinion that the operation of the applicable legal regimes, takentogether, have resulted in unfairness to him.

In the papers filed on the application, he put it this way: The appellant is seeking the opinion and acknowledgement of this Court in a weighted manner that the results of the credit splitting[under the Canada Pension Plan] is contrary to the “Order by Consent” issued by the Unified Family Court. No change in any provisions[of] the referenced “Order by Consent” is being sought in this application. [11] In other words, he is looking for a moral, rather than a legal or financial, victory. [12] Regrettably, this cannot be a basis for this Court to entertain an appeal from the consent order.

An appeal must seek to set asideor vary the judgment appealed from by alleging material factual or legal error by the judge in the court below or, in the case of a consentorder, by alleging that the agreement upon which the consent order was based is vitiated by fraud, duress, undue influence, commonmistake, misrepresentation, lack of consent or illegality (and even then the applicable forum to raise such issues respecting validity ofconsent may be either this Court or the original court where the consent order was entered): Crowley v.

Crowley (1999), (NL CA), 176 Nfld. & P.E.I.R. 244 (NLCA) at para. 11; Stacey v. Seabright, 2010 NLCA 72 at para. 22; Barter v. Barter, 2006NLCA 13 at paras. 14-15. Mr. Upshall is not seeking to do this. Consequently, if an extension of time were granted and leave to appealwere subsequently given, there is no substantive relief that this Court could give him. [13] This is, in itself, a sufficient reason to deny the application for extension of time because there is no basis upon which anyappeal against the order in the court below could result in the setting aside or variation of the order in question.

In essence, there is nopotential merit in the appeal. [14] Applying the other factors outlined above, it also has to be said that Mr. Upshall has not established that he had a bona fideintention to appeal the consent order within the applicable appeal period. In fact, he concedes that it was only when he had exhaustedhis challenges to the Canada Pension Plan decisions in the Federal Court that he turned his mind to appealing the consent order.

[ 15 ] It is also hard for Mr. Upshall to maintain that he has a reasonable excuse for waiting twelve years to seek leave to appeal. His explanation is that he wanted to concentrate on the pension ruling and became embroiled in the appeal process related to that. No doubt that took a lot of his time and attention; however, it is not a reasonable excuse that explains the complete absence of any time for taking the steps to file the documentation in this Court. [ 16 ] The remaining factor – whether there are any exceptional or special circumstances working against or justifying an extension – also does not help.

Aside from Mr. Upshall’s plea for somebody in authority to express an opinion on the fairness or unfairness of the situation in which he finds himself embroiled, there is no other special circumstance that he has mentioned. No doubt, Mr.

Upshall’s situation is unusual, but inasmuch as he is not seeking to set aside or vary the consent order, his situation in itself cannot be considered as a justification for extending time to appeal something which is, in effect, not being appealed. [ 17 ] While the factors outlined above are not exhaustive, and the Court still retains a discretion to extend time if for other reasons it is convinced that the justice of the case demands it, I see no other consideration that would call on the Court in this situation to do so, [ 18 ] Accordingly, I denied the application for extension of time. Green C.J.N.L.