McCully v. Rogers Estate, 2013 NSCA 22

NOVA SCOTIA COURT OF APPEAL Citation: McCully v. Rogers Estate , 2013 NSCA 22 Date: 20130212 Docket: CA 409533 Registry: Halifax Between: Joyce McCully Applicant/Appellant v. Roxanna Rutherford Rogers Estate and Peggy Rogers, Residual Beneficiary Respondent Judge: The Honourable Justice David P.S. Farrar Motion Heard: February 7, 2013, in Halifax, Nova Scotia, in Chambers Held: Motion for an extension of time dismissed.

Counsel: Applicant/ a ppellant in person Nathan Sutherland, for the respondent Estate Ann Levangie, for the respondent Peggy Rogers Decision: Introduction [ 1 ] The applicant, who is self-represented seeks an extension of time to appeal the decision of Justice J.E. (Ted) Scanlan awarding costs to the respondents in an estate dispute. Justice Scanlan’s written decision ( McCully v. Rogers Estate, 2012 NSSC 435 ) is dated September 27, 2012 and the Order is dated October 23, 2012.

[ 2 ] The Probate Act , S.N.S. 2000, c. 31, s. 94 makes clear that Civil Procedure Rules are to govern an appeal with respect to costs. Rule 90.13(3) of the Civil Procedure Rules requires that a notice of leave to appeal and a notice of appeal must be filed within ten (10) days of the date of the order. The Order here is dated October 23 rd ; the appeal period expired on November 7 th . The applicant attempted to file her Notice of Appeal on November 26 th . [ 3 ] The applicant now seeks leave of this Court to extend the time for filing of the notice of appeal.

Background [ 4 ] Roxanna Rutherford Rogers (the deceased) passed away February 14, 2009, never having had children. She left a Will which was probated April 17 th , 2009 (the Will). The Will had the effect of devising most of the deceased’s estate to her niece, the respondent, Peggy Rogers. [ 5 ] On October 15, 2009, Ms. McCully, also a niece of the deceased, filed an application to have the Will proved in solemn form. She alleged both incapacity of the deceased and undue influence on the part of Ms. Rogers and Ms.

Rogers’ husband (who was a brother of the deceased). [ 6 ] The application for proof in solemn form took over two years and used up significant estate resources before reaching a hearing on January 16, 2012. There were multiple discoveries in both Nova Scotia and Ontario and there were several adjournments requested by the applicant.

On the first day of the hearing on January 16, 2012, by consent order, the parties agreed to dismiss the application. [ 7 ] The Consent Dismissal Order provided as follows: IT IS HEREBY ORDERED THAT: 1. the Application be and is hereby dismissed by this Honourable Court; 2. none of the Applicant’s costs, fees, disbursements, and/or expenses, of whatever nature (including but not limited to legal fees), associated with the Application will be paid out of the Estate of Roxanna Rogers; 3. the dismissal is without prejudice to the Respondents’ rights to have their respective costs, fees, disbursement and/or expenses (including legal fees) associated with this Application, paid by the Applicant, in whole or in part, on a solicitor and client scale or otherwise, whether under Probate Act (and Regulations made thereunder), other legislation, the Civil Procedure Rules , or otherwise as provided by law; and 4. a hearing as to issues relating to costs, fees, disbursements and/or expenses to be claimed by the Respondents and referable to the Application is adjourned sine die . [ 8 ] The parties were unable to reach agreement on the issues of costs.

Justice Scanlan requested written submissions. Written submissions were filed by the Estate and Ms. Rogers on July 27, 2012. Written submissions on behalf of the applicant were filed on August 30, 2012. Reply submissions were filed by the Estate and Ms. Rogers on September 14, 2012. On September 27, 2012, Justice Scanlan rendered his decision making it clear, in no uncertain terms, what he thought of the merits of the original application. He says: [3] The steps leading up to the hearing of January 16, 2012, had been long, tedious and wasteful to say the least.

It should have been apparent to the Applicant at the very earliest stages the application was completely without merit. The Applicant had made serious allegations of fraud in that she alleged that the signature on the Will was not that of Roxanna Rogers. This allegation of fraud challenged the discovery of a Solicitor, Mr. Ellis, who indicated he had witnessed the Will being executed . [4] The parties had exchanged respective affidavits disclosing documents and they had extensive discoveries in Nova Scotia and Ontario.

I am satisfied that at just about every juncture the Applicant should have been aware that her case was without merit . The actions of the Applicant delayed the settling of the estate. This resulted in extensive ongoing costs. The expenses included solicitor’s fees and costs related to storage and management of the estate. The Applicant refused various offers to settle which were substantially more generous than the final consent order for dismissal.

That consent order provided that the Applicant’s own costs were not to be paid out of the estate but it did not settle the issue of costs as between the Applicant, the estate and the cost to be residual beneficiaries. (My emphasis) [ 9 ] Although Justice Scanlan is critical of the merits of the claim being put forward by the applicant and her actions in delaying the settling of the estate he did not award costs on a solicitor-client basis as the respondents requested. However, he expressed the view that “the actions of the Applicant ... are deserving of rebuke” (¶10).

He further found that the applicant’s “baseless application has resulted in an extraordinary wasting of the estate” (¶14). Ultimately, he awarded a lump sum amount of costs to the respondent estate in the amount of $50,000 plus contribution to storage fees of $5,000. He also ordered a contribution to the fees of Canada Trust, the estate’s administrator, of $2,000. Finally, he awarded Ms.

Rogers costs of $45,000 inclusive of disbursement. [ 10 ] The evidence before him was that Canada Trust had incurred legal fees and disbursements totalling $70,435.70 (inclusive of HST) plus Canada Trust’s own fees for services over the course of litigation of $4,816.31 and $5,795 representing the storage fees paid by the estate for storage of the deceased’s items during the litigation. [ 11 ] The costs to Ms.

Rogers of the litigation including air fare, disbursements, experts’ reports, etc. totalled $55,873.51. [ 12 ] The applicant now seeks leave to extend the time for filing of a Notice of Application for Leave to Appeal and Notice of Appeal (Costs Only). Analysis

[13] In her Notice of Motion, Ms. McCully does not reference the Rule upon which she relies upon, however, I will assume that it isRule 90.37(12)(

h) which gives a judge of this Court authority to extend any time period prescribed for filing of an appeal. [14] There are other deficiencies in the motion filed on behalf of the applicant (no brief, no draft form of order). The respondents askme to dismiss the motion summarily because of her failure to comply with the Rules. I would not dismiss the motion on that basis alone. I will address the merits. [15] Recently, Beveridge, J.A. in Farrell v. Casavant, 2010 NSCA 71, undertook a helpful

summary of the law which must guidethis Court’s consideration of a request to extend the time to file an appeal.

He explained the approach to be taken with respect to suchrequests as follows: [17] Given the myriad of circumstances that can surround the failure by a prospective appellant to meet the prescribed time limits toperfect an appeal, it is appropriate that the so called three-part test has since clearly morphed into being more properly considered asguidelines or factors which a Chambers judge should consider in determining the ultimate question as to whether or not justice requiresthat an extension of time be granted. (See Mitchell v.

Massey Estate (1997), 1997 NSCA 9 , 163 N.S.R. (2d) 278; Robert HatchRetail Inc. v. Canadian Auto Workers Union Local 4624, 1999 NSCA 107.) From these, and other cases, common factors considered tobe relevant are the length of delay, the reason for the delay, the presence or absence of prejudice, the apparent strength or merit in theproposed appeal and the good faith intention of the applicant to exercise his right of appeal within the prescribed time period. Therelative weight to be given to these or other factors may vary.

As Hallett J.A. stressed, the test is a flexible one, uninhibited by rigidguidelines. (My emphasis) [16] It is within this context that the applicant’s motion must be analyzed. [17] For the purposes of this analysis, I will assume the applicant had a good faith intention to exercise her right of appeal, that thedelay is not so inordinate as to cause prejudice to the respondents and there are valid reasons for the delay.

In my view, this applicationfails because the applicant has not shown that there are circumstances present which would warrant an extension of time, in particular,she has not shown that there is a strong case for error at trial and real grounds of appeal justifying appellate interference (Jollimore v.Jollimore Estate, 2001 NSCA 116, ¶22). [18] In the Notice of Motion the applicant set out ten paragraphs she relies upon on this motion. I will set them out in their entirety: 1. We are without counsel at this time but looking. 2.

Joyce McCully and Sharon Sheppard received Judge Scanlan’s final written submission on costs, dated September 14, 2012. Joyce and Sharon believed they had 25 clear working days from this date to submit an appeal. They completed an appeal form aroundthe end of September 2012 and submitted it to the Appeal Court. As they did not have Counsel at that time, they relied on assistancefrom the Appeal Court to ensure they followed correct procedures, and were not late submitting same. Joyce received a call from theAppeal Court informing her they required the Judge’s Order of Costs in order to complete the appeal.

She immediately contacted theappropriate source to inquire if the Cost Order had been processed. Joyce learned that the Cost Order had been issued on October 25,2012. She received this document shortly afterwards and called the Appeal Court to inform them she would be bringing in the CostOrder to complete the appeal. Subsequently Joyce received a voicemail from the Appeal Court stating, if the order was dated October25, 2012, that changes our timelines to 25 clear business days from that date. Based on this, we ensured the appeal process wascompleted a few days early.

This was stamped by the Prothonotary and dropped off to Andrew Fraser and Ann Levangie. The AppealCourt then received correspondence from Andrew Fraser, Counsel for TD Canada Trust, dated December 6, 2012, stating the appealperiod for costs was 10 days. Joyce McCully subsequently received a letter from the Appeal Court, dated December 11, 2012, advisingof this information. Joyce and Sharon are currently seeking Counsel. The Appeal Court did not realize we were appealing cost only. 3.

Lawyer, Brian Church, deserted his clients, Joyce McCully and Sharon Sheppard, one week before the trial (at a critical stage),placing them in a position of disadvantage and peril (Section 2.07(1) of the Code of Professional Conduct. 4. We were forced to seek a new lawyer one week before trial. On the Thursday we hired Rob Sutherland. At one point in the trial,Judge Scanlan sent him out to speak to opposing counsel on what would be acceptable to them in court. When he came back to courtafter the meeting he advised Joyce McCully to quit the case. 5.

Joyce McCully and Sharon Sheppard had no intention of going into court on January 16, 2012 to abandon their claim. 6. Ann Levangie, Counsel for the Respondent, has not provided a breakdown of her costs. 7. The offers to settle were not made in good faith – the first two offers included another separate estate and the final offer was madeone day before the trial. 8. The Applicants did not cause all the delays as alleged by the opposing counsel. We can defend this. 9. To this day there remain outstanding and incomplete undertakings from Ann Levangie and Andrew Fraser. 10.

Our case has merit and we can provide the documentation to support this statement. [19] She has also referenced, in her motion, her wish to have the judgment “rescinded” based upon the “reasons for appeal”. Thereasons for appeal appear in the original Notice of Appeal sought to be filed by the applicant on November 26, 2012. Again, I will setthese out in their entirety: REASONS FOR APPEAL 1. the judge erred in law and denied us natural justice by not granting sufficient time to instruct new counsel

2. incompetence of counsel Mr. Church in withdrawing at the last moment 3. incompetence of Counsel Mr. Sutherland in not being prepared or understanding the law 4. The Judge erred in law and in fact in disregarding the plaintiffs’ defence 5. We were not given the opportunity to respond to the allegations of Ann Levangie and Andrew Fraser in the Bill of Costs. We were not advised of the allegations prior to Rob Sutherland submitting his response to the costs. 6. All undertakings were not provided by Ann Levangie and Andrew Fraser. [ 20 ] I will deal first with the 10 reasons that appear in the Notice of Motion.

The first two explain Ms. McCully’s reasons for her failure to file the appeal within the appropriate time. I have already assumed that she had a good faith intention to appeal. These paragraphs are irrelevant for the purposes of deciding the strength of the appeal. [ 21 ] Paragraphs 3, 4, 5 and 9 relate to issues that arose during the litigation of the applicant’s application for proof in solemn form.

They do not relate in any way to Justice Scanlan’s costs order and do not contain any grounds of appeal relating to that Order. [ 22 ] In paragraph 6 the applicant complains that they were not provided with a breakdown of counsel for Ms. Rogers’ costs. The applicant does not explain how this may impact on the decision of Justice Scanlan. Moreover, it is an incorrect statement. The applicant was provided with a detailed breakdown of the costs incurred by Ms. Rogers in the submissions forwarded to Justice Scanlan on July 27 th , 2012.

If this is intended to be a ground of appeal, it is entirely without merit. [ 23 ] In paragraph 7 the applicant alleges a lack of good faith in the making of the offers to settle. This is simply a bold assertion without any factual background for this Court to test the merits to the allegation. As stated by Justice Bryson, in Brooks v. Soto , 2013 NSCA 7 : 23 A bare allegation of errors of fact by a trial judge in light of these compelling findings do not give rise to "exceptional circumstances" or a strong case for error at trial.

Some evidence should be led to substantiate such a vague ground of appeal ( N.L. v. Nova Scotia (Community Services) , 2010 NSCA 84 , at para. 17 ). [ 24 ] Ms. Rogers’ counsel, in making submissions on the issue of costs, included the offers of settlement in her brief to Justice Scanlan. The applicant’s solicitor, in response, did not allege that the offers to settle were not made in good faith but rather, the applicant’s rejection of them was “understandable and not irrational”.

Again, if this is intended to be a ground of appeal it is entirely without merit. [ 25 ] In paragraph 8 the applicants say that they did not cause all the delays as alleged by opposing counsel. Again, I reference Brook, supra , and say that simply making a bald assertion without any support does not give rise to a valid ground of appeal.

If the applicants intend to rely on this to allege that the trial judge made an error in his decision, some evidence must be led to substantiate the allegation on a motion such as this. [ 26 ] Paragraph 9 references outstanding undertakings on the part of the respondents’ counsel – whether there are undertakings on the original application that were outstanding or incomplete by Ms. Levangie or Mr. Fraser is irrelevant to the proposed appeal. [ 27 ] In paragraph 10 the applicant says that the case has merit and can provide the documentation to support the statement.

With respect, if there is a ground of appeal which has merit, and there is none which appear in the Notice of Motion, and there is documentation to support it, the allegation should have been made and the documentation provided in support of it. It has not, this bold assertion does not give rise to an allegation of error on the trial judge. [ 28 ] I am unable to see from the information contained in the Notice of Motion, circumstances which would warrant an extension of time to appeal. [ 29 ] I will now turn to the reasons for appeal contained in the Notice of Appeal Ms. McCully sought to file on November 26.

Again, I have outlined the grounds of appeal above and some of them overlap with the information contained in the Notice of Motion. Reasons for Appeal #1, 2, 3, 4 and 6 all relate to matters on the original application. They do not relate to Justice Scanlan’s costs order and do not contain any grounds of appeal. [ 30 ] In Reason #5, the applicant alleges that they were not given an opportunity to respond to the allegations of counsel for the estate and Ms. Rogers’ allegations in the Bill of Costs.

Not only is this statement inaccurate, she was given an opportunity to respond and her solicitor responded to the briefs filed on behalf of both the estate and Ms. Rogers in his submissions filed on August 30, 2012. [ 31 ] The “reasons for appeal”, like the information in the motion materials do not disclose any ground of appeal with merit. Conclusion [ 32 ] In my view, the appellant has failed to demonstrate that there is any merit to the proposed appeal, such that justice would require that I exercise my discretion pursuant to Rule 90.37(12)(

h) to extend the time for filing the Notice of Application for Leave to Appeal a Notice of Appeal (Costs Only). [ 33 ] Ms. McCully’s motion to extend time to file her notice of appeal is dismissed. Costs [ 34 ] The estate and Ms. Rogers shall be entitled to costs of $500 each on the motion.

Farrar, J.A.