Cragg v. Eisener, 2012 NSCA 38

NOVA SCOTIA COURT OF APPEAL Citation: Cragg v. Eisener , 2012 NSCA 38 Date: 20120412 Docket: CA 377951 Registry: Halifax Between: Edward Gillmor Cragg Appellant v. Randy Eisener Respondent Judge: The Honourable Justice Peter M. S. Bryson Motion Heard: April 5, 2012, in Halifax, Nova Scotia, in Chambers Held: Motion to set aside appeal dismissed. Counsel: Catherine Colville, Agent for the appellant Michael F. Feindel, for the respondent Decision : [ 1 ] On January 25, 2012

Summary Judgment was granted in favour of the respondent, Randy Eisener, against the appellant, Edward Gillmor Cragg, in a mortgage foreclosure action. [ 2 ] On February 8, 2012 Mr. Cragg appealed that decision alleging: 1. The Learned Chambers Judge erred in law and principle in granting

summary judgement against the appellant without affording

the Appellant [the opportunity] to put his full case before the court inclusive of proposed affidavit evidence of the appellant and withoutthe opportunity for cross-examination of the Plaintiff 2. The Learned Chambers Judge erred in law and principle otherwise as may appear from review of the transcript. [3] On March 15th, Mr. Cragg brought a motion for date and directions but the appeal was not set down because no certificate ofreadiness had been filed. Today Mr. Eisener moved before the Court in Chambers seeking: 1.

An order setting aside the Notice of Appeal under Rule 90.40(1) as it fails to disclose any grounds for appeal; 2. Alternatively, an order dismissing the appeal under Rule 90.40(2) because the appellant had failed to conduct the appeal incompliance with Rule 90; and 3. In the further alternative, security for costs under Rule 90.42(1). [4] In correspondence dated yesterday, Mr. Eisener sought, in the further alternative, that the court set dates for this appeal asquickly as possible. [5] Mr. Cragg did not appear on the motions. He was represented by his wife, Catherine Colville. Ms.

Colville requested anadjournment of today’s motions as her husband is seeking legal counsel. She explained what steps were being taken to that end. Shealso explained that her previous counsel withdrew just prior to the March 15th motion for directions. [6] I did not grant Ms. Colville’s request for an adjournment but I did dismiss the motions brought by Mr. Eisener. I advised theparties that I would provide brief written reasons for doing so. [7] During oral submissions, Mr. Feindel withdrew the motion for security for costs. He did make submissions with respect tohis motion to set aside the notice of appeal.

Rule 90.40(1) says: 90.40

(1) A judge of the Court of Appeal may set aside a notice of appeal if it fails to disclose any ground for an appeal. [8] A single judge lacks jurisdiction under Rule 90.40 to set aside an appeal on the basis that it lacks merit. Such a motion couldonly be made to a panel of the Court of Appeal under Rule 90.44. Rule 90.40(1) would only permit a Chambers judge to dismiss anappeal if, on its face, there was no possibility in law that the grounds could constitute any basis to sustain the appeal. In Fares v.

CIBCBank, 2009 NSCA 124, Justice Roscoe set aside a notice of appeal because the grounds were illegible and, in her words, “hardlycomprehensible”. She went on to say: [6] ...While one might decipher the first ground as a claim that there was an error of law and jurisdiction, a ground of appeal mustinclude some particularization or suggestion of what the alleged error of law or jurisdiction is.

In the context of this case, whereJustice Wright dismissed an application for a date assignment conference because, among other things, the pleadings had not closed, abare allegation of an error of law or jurisdiction is insufficient to disclose a valid ground of appeal. [Emphasis added] [9] Conceivably, Mr. Cragg’s second generic ground of appeal would offend the Rule. But in this case, Mr. Cragg alsocomplains that he was denied an opportunity to lead evidence and was denied the opportunity to cross-examine Mr. Eisener. In Guptillv.

Guptill (1987), (NS CA), 82 N.S.R. (2d) 390, the Appeal Division set aside an interlocutory decision of aChambers judge in part because the appellant had no opportunity to cross-examine the respondent on her affidavit. The appellant did not

have his “day in court”. I do not suggest that the appellant here did not receive procedural fairness before Justice Hood. That assessmentis not mine to make. Rule 90.40(1) does not permit me to assess the merits of the grounds of appeal. Typically, a judge in Chambersdoes not consider the merits of an appeal except in connection with other types of motions – and then only tentatively, (for example amotion for a stay or a motion for leave to extend time to file a notice of appeal). For the purposes of Mr. Eisener’s motion only, I mustassume that the grounds of appeal are factually accurate.

On that assumption, the grounds in item # 1 constitute sufficiently particulargrounds of appeal to satisfy the Rule. [10] In his oral submissions, Mr. Feindel did not pursue a motion under 90.40(2) that the appeal be dismissed for failing to complywith Rule 90 – specifically, that no certificate of readiness had been filed. An appellant in an interlocutory appeal would normally haveto file a certificate of readiness in conjunction with a motion to set the appeal down within 15 days of filing the notice in accordance withRule 90.25(2). But Justice Hood’s

Summary Judgment decision is a “final disposition” with respect to liability and therefore the rulesapplicable to a general appeal govern, rather than those applying to an interlocutory appeal, (Cameron v. Bank of Nova Scotia (1981), (NS CA), 45 N.S.R. (2d) 303 (S.C.A.D.); Van de Wiel v. Blaikie, 2005 NSCA 14). Rule 90.25(2) allows Mr. Cragg80 days to move to set down the appeal for hearing. A certificate of readiness is only required in support of that motion and so is not yetdue. Accordingly, Mr. Cragg is not in breach of the Rule. [11] Ms.

Colville indicated that she now has a recording of the hearing before Justice Hood. It only remains to assemble the appealbook. She has not yet filed a certificate of readiness. Ms. Coville explained that she would like the benefit of counsel to advance herhusband’s appeal. Both parties expressed a desire to have the appeal heard as soon as reasonably possible.

Accordingly, I directed theparties to re-attend in Chambers on Thursday, April 26th, at which time I will set dates for filing the appeal book, factums, and a date forthe hearing of the appeal. [12] In the circumstances, costs of today’s motions will be determined by the panel hearing the appeal. Bryson, J.A.