Wagstaff v. Marche, 2013 NLCA 71

Date: 201312 17 Docket: 13/11 Citation: Wagstaff v. Marche , 2013 NLCA 71 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: BARBARA ALLISON WAGSTAFF APPLICANT AND: ROY MARCHE RESPONDENT Coram: Green C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200704T0032 Application Heard: December 17, 2013 Judgment Rendered: December 17, 2013 Reasons for Oral Decision Filed: December 18, 2013 Counsel for the Applicant: Adam Crocker Counsel for the Respondent: Fred Stagg, Q.C.

REASONS FOR ORAL DECISION Green C.J.N.L.: [ 1 ] When a litigant wishes to file a document outside of the time period allowed by the rules of court, the matter is usually worked out between counsel on the basis of courtesy and convenience. In some cases, this does not occur. This is one of those cases. [ 2 ] The appellant in this family law appeal sought leave of the Court to file her factum outside of the thirty day period

presumptively applicable for that filing. The respondent refused his consent to extend the time and took the position that if, as he submits, the Court should not extend the time for filing, the matter cannot proceed and that the appeal is effectively dismissed. [ 3 ] At the conclusion of the hearing of the application, I granted an extension, with brief reasons to follow.

These are those reasons. [ 4 ] Rule 57.15(1) of the Rules of the Supreme Court, 1986 stipulates that an appellant must file her factum within 30 days after filing the appeal book or, if the appeal has not in the meantime been struck out or deemed abandoned under rule 57.20, “within such further time as the parties agree upon or the Court allows.” There are three ways, therefore, whereby an appellant may file a factum and still be in compliance with the rules: (

i) within the presumptive 30-day period; (ii) within such longer period as may be agreed by the parties; or (iii) within such further period as the Court on application may allow. [ 5 ] Here, the appellant filed an appeal book on May 7, 2013. Subsequently, counsel for the respondent agreed with appellant’s request to extend time for filing the factum for a period “in the range of one month” from June 11, 2013.

The respondent says that the appellant, by a without prejudice letter, subsequently indicated that “the appeal would be abandoned” or “was abandoned” (the choice of language varies in the materials filed by the respondent). On August 5, 2013, the appellant’s counsel indicated that he intended to make an application for admission of fresh evidence on the appeal as well as an application to extend time for filing the factum until after the fresh evidence application had been heard.

That effectively signaled that his client had reconsidered and intended to proceed with the appeal. [ 6 ] Subsequently, appellant’s counsel decided, following further research, that he would not make a fresh evidence application. He advised respondent’s counsel and on October 22, 2013 he requested a further extension of time in which to file the factum until November 7, 2013.

Counsel for the respondent refused. [ 7 ] On the current application, counsel for the appellant submitted that the failure to comply with the presumptive 30-day time limit was not egregious, can be explained by the events that subsequently occurred and that fairness supports, in these circumstances, allowing the appellant to proceed with the appeal, which is not frivolous.

He also says that upon finding out that the respondent’s counsel would not consent to a further extension, he made application for late filing in a timely manner. [ 8 ] Counsel for the respondent takes the position that non-compliance with the 30-day filing requirement, without his agreement or court sanction, effectively renders the appeal void. He also says that appellant’s counsel undertook to abandon the appeal and that he cannot now hide behind a without prejudice communication to avoid complying with his undertaking.

He says, further, that as a result of that undertaking, he closed his file on the matter and that an undertaking to discontinue has the same effect as if a formal notice of discontinuance had been filed in the court: the appeal cannot be revived. [ 9 ] Dealing with the second point first, the correspondence between counsel respecting the intention to abandon the appeal was not produced on the application. Counsel for the appellant interprets the communication differently. He says the reference to abandoning the appeal was made in the context of without prejudice communication designed to try to settle the matter.

It is not possible to resolve this difference of characterization on the existing record. I am not, therefore, prepared to treat counsel’s communication as a binding “undertaking” to abandon the appeal (the burden being on the respondent to establish that). Indeed, respondent’s counsel’s own description of what was said is not consistently reflective of an undertaking as opposed to a statement of future intention.

It was open, therefore, in the absence of the filing of a notice of discontinuance or a formal signification of abandonment to the Court, for the appellant to change her mind and proceed with the appeal. [ 10 ] It also is incorrect for the respondent to characterize the failure to comply with the 30-day presumptive rule as effectively leading to the dismissal of the appeal. Rule 2.01(1) provides that a failure in a proceeding to comply with any requirement of the rules shall, unless the Court otherwise orders, be treated as an irregularity and shall not nullify the proceeding.

Furthermore, rule 57.31(2) provides that, except with respect to reinstatement of deemed abandoned appeals, “the Court may dispense with compliance with a rule in a proceeding”. At most, therefore, the failure of the appellant to file her factum within 30-days of filing the appeal book, or to obtain opposing counsel’s consent to late filing, amounts to an irregularity which can be cured by subsequent order of the Court.

An application to the Court for extension of time in this regard, while it should be made on a timely basis, does not have to be made within the original 30-day period: rule 57.31(5)(b). [ 11 ] In this case, it is altogether too draconian to refuse to allow the appellant to file her factum or to proceed with the appeal. In R. v.

Mercer , 2005 NLCA 10 , Roberts J.A. observed, in the context of a criminal case: [67] This Court … is never likely to strike an otherwise bona fide appeal because of a relatively minor non-compliance with the rules. … [O]nly in cases where there is an egregious failure to comply with the rules will the court deprive an appellant of his or her right to be heard. [ 12 ] These comments are equally applicable to civil proceedings. [ 13 ] Even if the Court refused to allow the filing, the appellant would not ipso facto be prevented from making oral submissions at the appeal hearing itself; the Court retains a discretion to allow oral submissions in the absence of filing a factum: rule 57.18(6).

This is because failure to comply with subsequent time limits, once a notice of appeal has been validly filed, does not render the appeal a nullity. [ 14 ] The respondent has not asserted any prejudice that he has suffered as a result of the failure to file the factum earlier, other than the cost and inconvenience of now having to face an appeal which he may have thought he had fortuitously avoided as a result of rule non-compliance by the other side.

That, of course, is not the type of prejudice that is cognizable on an application such as this; rather, the prejudice must relate, for example, to detrimental actions undertaken or incurring of costs, in reliance on the rule non-compliance, or the occurrence of intervening events that would have a significant irremediable adverse impact on the respondent if the rule non-compliance were overlooked. [ 15 ] It is noteworthy that the respondent has not sought to apply to strike out the notice of appeal or to dismiss the appeal under rule

57.17 (1)(

e) on the ground that “the appellant has delayed the preparation and perfection of the appeal.” It is only by such an application that he can achieve the result asserted on the current application that the appeal cannot now proceed and should be treated as dismissed. [ 16 ] In the circumstances, I decided to exercise my discretion to allow the filing of the factum and to extend the time to Friday, December 20, 2013 for that filing to occur. Costs of this application shall be costs in the cause. J. D. Green C.J.N.L.