Veno v. Ensor Estate, 2014 NSCA 72

Nova Scotia Court of Appeal Citation: Veno v. Ensor Estate , 2014 NSCA 72 Date: 20140704 Docket: CA 426645 Registry: Halifax Between: Neil Veno Applicant v. Estate of Jill Ensor, by personal representatives, Rose Marie Sampson and Darrell Sampson Respondent Judge: The Honourable Justice J.E. (Ted) Scanlan Motion Heard: June 19, 2014, in Halifax, Nova Scotia, in Chambers Held: Motion dismissed. Counsel: Michael K. Power, Q.C., for the appellant Allan C.

Fownes, for the respondent Decision: [ 1 ] The applicant seeks leave to extend the time to file an appeal of a decision of Nova Scotia Supreme Court Justice Patrick J. Duncan (the motions judge). He granted a motion to dismiss Mr. Veno’s claim based his failure to have the action set for trial within a reasonable time ( Veno v. Ensor Estate , 2013 NSSC 335 ). The applicant sought to appeal that decision but he missed the appeal deadline and now asks this Court to extend the time for the filing of the notice of appeal.

He asserts that he intended to appeal the decision of the motions judge, but he missed the appeal period by one or two days. [ 2 ] For the reasons set out below I would dismiss the motion. Background [ 3 ] On March 11, 2005 the applicant filed an action related to an alleged common law relationship between him, as plaintiff, and now deceased Jill Florence Ensor as defendant. This action referenced a common law relationship between 1998 and 2004.

He claimed a share of the value of her assets based upon principles of unjust enrichment, quantum meruit , resulting and constructive trust, and s. 41 of the Judicature Act , R.S.N.S. 1989, c. 240. [ 4 ] The motions judge noted three phases of activity in the history of the claim: • 2004 - 2006 Active prosecution of the claim ending with completion of two days of discovery on August 18, 2006; • 2007 – 2012 inactivity other than the plaintiff filing a notice of intention to proceed in October 2008 and the defendant, in May 2009, filing a notice of intention to act on her own and requesting a transfer of the proceeding to a place nearer where she was obtaining medical treatment; • March 4, 2013 The Prothonotary issued a motion to dismiss pursuant to Rule 4.22 of the Nova Scotia Civil Procedure Rules .

In April that motion was denied because the defendant had been notified in 2009 of the plaintiff’s intent to proceed. The plaintiff then requested a date assignment conference. By that time the defendant had died and the plaintiff was advised to take steps to join the Estate of the defendant. [ 5 ] After the death of Ms. Ensor on January 30, 2013 her personal representatives, on behalf of the estate, moved for an order requesting dismissal of the action pursuant to Civil Procedure Rule 82.18, on the basis that the matter had not been brought to trial within a reasonable time.

In total, the period of inactivity was approximately six years. What activity there was, was essentially triggered by the Prothonotary’s motion, not the plaintiff.

[6] The motions judge held that the delay, from August 2006 to April 2013, constituted an unreasonable delay, and that theresponsibility for the delay rested with the plaintiff (¶13). [7] The motions judge found that there was a serious lack of diligence in prosecuting this claim and no reasonable excuse for thatdelay (¶22). The nature of the claim was noted by the motions judge to be one where the plaintiff was seeking to effect an equal orunequal division of assets in favor of the plaintiff, and that the case was very much dependant on the evidence of the parties anddocumentary evidence.

The motions judge said that, because of her demise, the defendant is not able to tell her story to the court inperson. He determined that the defendant is likely to be seriously prejudiced at trial on account of the inordinate and inexcusable delayof the plaintiff. The excuses the plaintiff offered in terms of the reasons for the delay were not accepted by the motions judge as beingaccurate or valid. [8] The motions judge ordered the plaintiff to pay costs in the amount of $2,000 plus disbursements to be taxed.

At the time of thehearing of this motion, the parties advised me there had been no payment on the costs amount as ordered. [9] As to the issue of the filing of the notice of appeal to the Court, the applicant’s position is that the delay in filing the appealwas largely the result of the delay in the processing of the final court order, which was then forwarded to the plaintiff’s solicitor byregular mail.

Counsel then appears to have miscalculated the time limits for filing of the appeal so that he filed one, probably two daysafter the expiry of the appeal period. [10] The respondent’s position is that the limitation period for filing of the appeal should not be extended and that the motion shouldbe dismissed. Analysis [11] The law on extension of time for filing of appeal’s has been considered recently in two cases: Beveridge, J.A. in Farrell v.Casavant, 2010 NSCA 71, and Farrar, J.A. in McCully v.

Rogers Estate, 2013 NSCA 22. [12] The parties in the present case acknowledge the time for filing of an appeal was missed by one or two days. The applicant wasnotified by Court staff of the missed deadline for filing of the appeal but the applicant did not seek leave to have the appeal periodextended until a period of weeks had elapsed after he was advised by the Registrar of the missed deadline.

This relaxed approach inprosecuting the appeal is reminiscent of the applicant’s delays in prosecuting the original claim. [13] The applicant urges the court to focus on the short amount of time involved in his attempting to file a notice of appeal. If thatwere the only consideration I would have been inclined to grant an extension. It is not the only factor.

Other relevant considerations werenoted in Farrell where Beveridge, J.A. took into account things such as, the reason for the delay, the presence or absence of prejudice,the apparent strength or merit in the proposed appeal and the good faith intention of the applicant to exercise his right of appeal withinthe prescribed time period (¶17). In the present case the merits of the appeal are the most important consideration. [14] By all accounts the delay was short. A delay of two days would not be a source of prejudice to the respondent.

The reason fordelay would appear to be understandable, and, for purposes of this motion, I assume the intention to appeal was present. I am satisfiedthat this motion must fail because the applicant has not shown that there is any merit to the proposed appeal. [15] In Tibbetts v. Tibbetts, (1992), (NS CA), 112 N.S.R. (2d) 173, Justice Hallett, of this Court, noted thatultimately the objective of the court on motions such as this is to achieve justice as between the parties.

He noted the circumstances ofeach case must be considered so that justice can be done (¶14). [16] I am mindful of the fact that dismissal of the present motion will result in the applicant not having this case resolved by trial. Iam also mindful of the comments of the motions judge in relation to the failure of the plaintiff to prosecute the case in a reasonablemanner and determined that the plaintiff’s failure to prosecute the case has resulted in irreparable prejudice to the defendant.

Thedefendant is no longer alive and is unable to respond to the plaintiff’s allegations or assertions that may be made at trial. The motionsjudge noted that the fact discoveries were held is not sufficient to overcome that prejudice. The findings as to prejudice and inexcusabledelay are all reasonably supported by the record before the motions judge.

The delay between the date of filing the original claim andany attempt to prosecute that claim was determined by the motions judge to be inordinate and prejudicial to the defendant. [17] The motions judge noted that the defendant was no longer present to give instructions or testify at trial (¶31). He noted that theplaintiff now has the opportunity to now make assertions and the defendant has no opportunity to challenge or confirm the accuracy ofhis recall (¶33).

In this regard the motions judge observed the plaintiff’s memory difficulties, even with more recent events. [18] The motions judge properly noted, as have I, that a party should not lightly lose the right to pursue ones claim and to have adispute settled by trial. [19] At ¶35 the motions judge concluded: Having regard to all of the circumstances I am satisfied that the serious prejudice to the ability of the defendant to respond to the claimcreated by the inordinate and inexcusable delay outweighs the harsh consequences of terminating the right of the plaintiff to have hisclaim adjudicated.

I conclude that on the facts of this matter it is a result that is justified. [20] This passage makes it clear that the motions judge was of the view that if this case were to proceed, the defendant would sufferserious prejudice as a result of the plaintiff’s inexcusable delay. On appeal the applicant would be asking the Court of Appeal to ignoreor reverse that finding of fact, and overlook his inexcusable delay.

[ 21 ] The missed deadlines for the filing of the appeal and the unexplained delay in making the motion to extend the appeal deadline does not give any comfort to me that the applicant will be any more diligent in the future than he has been in the past. The fact that he has paid nothing against the outstanding order for costs and disbursements does not give any comfort to either. [ 22 ] The one thing that has not changed, and will not change, is the fact that the delay was inordinate, inexcusable and prejudicial. All findings of fact with which an appeal court is not likely to interfere with.

Ultimately the only issue on appeal would be the issue of which party bears the prejudicial consequences of the plaintiff’s inexcusable delay. The applicant does not suggest how the prejudice to the defendant could be undone after the lapse of so many years and the death of the defendant. The motions judge was keenly aware of the irreparable harm to the defendant, resulting from the delay, when he dismissed the claim.

The appeal is without merit. [ 23 ] This matter should be put to an end before any more of the parties’ monies and judicial resources are wasted, and before the defendant estate has to incur any more cost or delay in settling the estate. No trial court or court of appeal could do anything to assure that the parties could have a trial that was fair to both sides. [ 24 ] The applicant’s motion to extend the appeal deadline is dismissed. Costs [ 25 ] The respondent estate shall be entitled to costs in the amount of $500 inclusive of disbursements on this motion. Scanlan, J.A.