Briand v. Coachman Insurance, 2003 NSCA 39

NOVA SCOTIA COURT OF APPEAL Citation: Briand v. Coachman Insurance , 2003 NSCA 39 Date: 20030403 Docket: CA 188994 Registry: Halifax Between: Troy Briand Appellant - and - Coachman Insurance and RCMP Respondents Judges: Glube, C.J.S.C.; Bateman & Hamilton, JJ.A. Appeal Heard: April 1, 2003 Held: Appeal dismissed with costs , as per reasons of Hamilton, J.A., Glube, C.J.N.S. & Bateman, J.A. concurring Counsel: Mr. Troy Briand, Self-Represented Appellant Mr. Michael R. Brooker, Q.C., for Coachman Insurance Co. Ms. Melissa R.

Cameron, for the RCMP Reasons for judgment : [ 1 ] This was an appeal from the October 10, 2002 decision of Justice K. Peter Richard dismissing Mr. Briand’s application to extend the time for him to file a notice of appeal from the July 16, 2001 decision of Adjudicator Alexander S. Beveridge, of the Small Claims Court. [ 2 ] On October 12, 1999, Mr. Briand was involved in a motor vehicle accident where the car he was driving, a 1985 Sunbird, rear-ended a car leased by the RCMP. Three actions were heard in Small Claims Court as a result of this accident.

[ 3 ] First, Mr. Briand sued Parkway Insurance Services Inc. (Parkway), his insurance agent, for return of all insurance premiums paid and the increased cost to him when his insurer, Coachman Insurance Company (Coachman), cancelled his insurance and/or coverage. This matter was heard by Adjudicator Beveridge on September 25, 2000. The adjudicator found as a fact, based on credibility, that Mr. Briand “ ...did not instruct the Defendant to delete coverage for the 1988 Sunbird back to the 1985 Sunbird on October 5, 1999.” Hence Mr. Briand’s claim was dismissed. [ 4 ] Second, Mr.

Briand claimed payment of an indefinite amount from Coachman in connection with the accident, prior to any damage claim being made against him by the RCMP. Mr. Briand did not appear at the hearing which was before a different adjudicator. That adjudicator, indicating that the court could not make statements of principle, determined that the claim was premature and dismissed the claim. [ 5 ] Third, the Attorney General of Canada, on behalf of the RCMP, sued Mr. Briand claiming damages. The hearing of this action, on April 30, 2001, was also before Adjudicator Beveridge.

Part way through, this hearing was adjourned to allow Mr. Briand an opportunity to amend his earlier action against Coachman, since a damage claim had now been brought against him for which he alleged he had insurance coverage. The hearing of both matters continued on or about June 6, 2001. Again, based on credibility, the adjudicator found Mr. Briand liable for the accident, awarded damages against him in the amount of $2,185.45, and found that Mr. Briand was not covered by insurance for the 1985 Sunbird he was driving. [ 6 ] In a separate

summary offence proceeding under s. 230(1) of the Motor Vehicle Act , R.S.N.S. 1989, c. 298, relating to the same accident, Mr. Briand was convicted in Provincial Court on August 21, 2000, of driving without insurance. This conviction was subsequently overturned by this court on January 9, 2002. At the new trial ordered, scheduled for August 2, 2002, no evidence was offered and the charge was dismissed. [ 7 ] On September 15, 2002, Coachman served Mr. Briand with collection documents in relation to the July 16, 2001 Small Claims Court decision. On October 1, 2002, Mr.

Briand applied for an extension to file a notice of appeal of the July 16, 2001 Small Claims Court decision. It is the chambers judge’s decision not to extend the time to appeal that is now on appeal before us. [ 8 ] The standard of review is whether the chambers judge made an error of law resulting in an injustice, since his decision results in a final disposition. Purdy Estate v. Frank [1995] N.S.J.

No. 243 , ¶ 10 (N.S.C.A.) . [ 9 ] The regulations to the Small Claims Court Act , R.S.N.S. 1989, c. 430 , provide that an appeal from the decision of an adjudicator shall be commenced not later than 30 days after the adjudicator’s order or determination is filed. Here, the adjudicator’s decision was filed July 16, 2001 and the application to extend the time to file an appeal was filed October1, 2002, over 14 months later. [ 10 ] In Spence v. Nantucket Investor Group (1998), 1998 CanLII 1626 (NS CA) , 169 N.S.R. (2d) 176 (N.S.C.A.) , Cromwell, J.A. states: 14 In Nova Scotia (Attorney General) v.

Mossman, et al. (1994), 1994 NSCA 9 (CanLII) , 133 N.S.R. (2d) 229, Roscoe, J.A. referred at p. 231 to the well-established three part test which states: The time period for filing a notice of appeal should only be extended where: (1)The appeal has sufficient merit, on the basis that it is arguable that the trial judge made a clear error in his perception and evaluation of the evidence; (2)There was a bona fide intention to appeal while the right to appeal existed; (3)A reasonable excuse for the delay in launching the appeal is advanced. 15 In addition, as Hallett, J.A. pointed out in Tibbetts v.

Tibbetts (1992), 1992 CanLII 2625 (NS CA) , 112 N.S.R. (2d) 173, the three part test is not the only test for determining whether the time for appeal should be extended. An overriding question in all cases is whether the court is satisfied that justice requires that an application for extension of time be granted. There is no precise rule; the circumstances in each case must be considered so that justice can be done. [ 11 ] Mr. Briand did not file an affidavit in support of his application before the chambers judge. He indicated before the chambers judge that the extension should be granted because his

summary offence conviction for driving without insurance had been overturned and no evidence was offered at his new trial, resulting in a dismissal of the charge. No other reason was given by Mr. Briand for the 14 month delay. Mr. Briand did not address the issue of whether there was an arguable issue raised on appeal or whether he intended to appeal within the time limit provided for appeals.

[ 12 ] Considering the limited information provided by Mr. Briand, he has not satisfied me that he met any of the three parts of the test. This being the case, the chambers judge did not err in refusing to grant the extension sought after considering this test. I must then consider whether the chambers judge erred in his consideration of whether justice required that an extension be granted. [ 13 ] Mr. Briand has not satisfied me justice required the chambers judge to grant the extension sought. As the chambers judge noted, the

summary offence proceedings are separate from the Small Claims Court action. The fact that the Crown did not proceed on the retrial of the driving without insurance charge does not mean, contrary to what Mr. Briand thinks, that he was insured while driving. The dismissal of the

summary offence proceeding was not based on a finding of fact or credibility. The adjudicator did not refer to Mr. Briand’s

summary offence conviction in his decision, but instead relied on his own determination of credibility to find that Mr. Briand caused the accident and that Mr. Briand had no insurance coverage for the car he was driving at the time of the accident. The adjudicator’s careful decision indicates he explored possible ways Mr. Briand could be covered even without this car being designated, such as under clause 5 of the General Provisions,

Definitions and Exclusions of the standard automobile policy and by considering whether the insurer was obliged to notify Mr. Briand in writing of a change in the vehicle insured. [ 14 ] While it would not necessarily be dispositive of this appeal, I would note that proceedings in Small Claims Court are not recorded. Once a decision is appealed, the adjudicator is required to create a record from his or her notes and memory of the hearing.

After 14 months it could be hard for the adjudicator to create such a record accurately, which could result in prejudice. [ 15 ] Accordingly, I am not satisfied the trial judge erred, and I would dismiss the appeal, with costs payable by the appellant to the respondents, in the amount of $250 including disbursements each. Hamilton, J.A. Concurred in: Glube, C.J.N.S. Bateman, J.A.