MacNutt v. Acadia University, 2016 NSCA 76

Nova Scotia Court of Appeal Citation: MacNutt v. Acadia University, 2016 NSCA 76 Date: 20161017 Docket: CA 455920 Registry: Halifax Between: Laura MacNutt/PIER 101 Home Designs Inc. Applicants v. Acadia University, T.A. Scott Architecture + Design Limited (3278638), and Troy A. Scott Respondents Judge: The Honourable Justice Joel Fichaud in chambers Motion Heard: October 13, 2016, in Halifax, Nova Scotia Held: Motion for extension of time to file notice of appeal granted Counsel: Laura MacNutt for the Applicants Elaina Campbell for the Respondents T.A. Scott Architecture + Design Limited and Troy A.

Scott The Respondent Acadia University not appearing Reasons for judgment: [ 1 ] Ms. Laura MacNutt moves for an extension of time to file her notice of appeal. [ 2 ] Ms. MacNutt is a building designer. In the summer of 2013, she prepared concept drawings for Acadia University’s proposed expansion of the Alumni Hall. Later Acadia retained Mr. Troy Scott and his company, T.A. Scott Architecture + Design Limited (3278638), (together “Scott”) for the project. Ms. MacNutt holds the view that Acadia and Scott used her design without proper attribution.

She applied in the Supreme Court of Nova Scotia for an order that they infringed her copyright. [ 3 ] On June 21, 2016, Justice Chipman issued a Decision that dismissed Ms. MacNutt’s application ( 2016 NSSC 160 ) (“Merits Decision”). There was no order at that time. [ 4 ] On August 9, 2016, Justice Chipman issued a costs Decision that quantified costs payable by Ms. MacNutt to Acadia and Scott ( 2016 NSSC 208 ) (“Costs Decision”). On August 26, 2016, the Supreme Court issued an Order for the costs only (“Costs Order”). [ 5 ] On September 27, 2016, Ms.

MacNutt filed with the Court of Appeal a notice of appeal from both the Merits Decision and the Costs Order. [ 6 ] Civil Procedure Rule 90.13(2) says that the deadline for appealing the Merits Decision is 25 days, and the Costs Order 10 days. The timespan is calculated according to Rule 94, which excludes weekends and holidays. Ms. MacNutt’s appeal times from the Merits Decision expired in late July, and from the Costs Order in early September.

On September 27, 2016, when she filed her Notice of Appeal, her deadlines for both had passed. [ 7 ] In correspondence, counsel for Scott and Acadia took the position that the appeal was out of time, unless Ms. MacNutt obtained an extension from a chambers judge. On October 5, 2016, Ms. MacNutt filed this motion for an extension. [ 8 ] On October 11, 2016, Justice Chipman filed an Order from his merits Decision of June 21, 2016 (“Merits Order”). The Merits Order says simply that Ms. MacNutt’s application “is hereby dismissed”. At the chambers hearing before me, Ms.

MacNutt explained that she brought the need for a Merits Order to the attention of Justice Chipman, who then attended to the Order. [ 9 ] On October 13, I heard Ms. MacNutt’s motion for the extension. Acadia University did not appear. Scott opposed the motion. [ 10 ] After the hearing on October 13, I ruled orally that: (1) there was no need for an extension to appeal the Merits Order of

October 11, 2016, and

(2) I would extend Ms. MacNutt’s time to appeal from the Costs Order. I said my written reasons would follow.These are the reasons. [11] First, the appeal from the Merits Decision and Order. [12] Rule 90.13(3) says that the appeal must be started within 25 days of the “order of judge or court”. Then Rule 90.13(4) adds: 90.13

(4) An appeal from a decision of a court or tribunal that has not issued an order must be started no more than the number of daysstated for the applicable proceeding listed in the above table, after the day the decision is made, unless legislation provides, or a judge ofthe Court of Appeal permits otherwise. [13] These Rules mean that, if there is a Decision – i.e. reasons – but no order, then the notice of appeal must be filed within 25days, calculated according to Rule 94, from the date of that Decision.

Afterward, the appeal is out of time unless there is either: (1) anextension from a chambers judge of the Court of Appeal, or (2) a lower court Order that embodies the lower court’s Decision. If thatlower court Order materializes, then the 25 days starts again. This is well-established by the authorities in this Court. Whey v. Halifax(Regional Municipality), 2006 NSCA 40, paras. 4-5, 9; MacKay v. Murray, 2006 NSCA 43, paras. 7, 14; MacDonald v. MacDonald,2010 NSCA 34, para. 18; Luke v. Luke, 2009 NSCA 23, para. 11; McGuire v. Fermini, [1984] N.S.J.

No. 32, para. 13, per MacDonald,J.A.; 809039 Ontario Ltd. v. 1932455 Nova Scotia Ltd., [1992] N.S.J. No. 522, per Chipman, J.A.; Bowater Mersey Paper Co. v. NovaScotia (Minister of Finance), [1992] N.S.J. No. 165, per Hallett, J.A. [14] The proposed appellant’s simpler course is to obtain the order from the lower court. The respondent has no basis to object.Under Rule 90.15, that order is required in any event, before the Court of Appeal’s chambers justice may

schedule the appeal for ahearing. [15] Here, Justice Chipman’s Merits Order of October 11, 2016 recommenced Ms. MacNutt’s appeal period. That period has notexpired. Until her 25 days from October 11 elapses, she may file a Notice of Appeal from the Merits Order without any extension from achambers judge. [16] Next is Ms. MacNutt’s appeal from the Costs Order. This appeal is out of time. An extension is needed. [17] Rule 90.37(12)(

h) says that a chambers judge “may order … that any time prescribed by this Rule 90 be extended or abridgedbefore or after the expiration thereof”. In the exercise of this discretion, the chambers judge is to consider various factors. Ultimately, thequestion is – what is in the interests of justice? R. v. Roberge, 2005 SCC 48 , [2005] 2 S.C.R. 469, para. 6; R. v. F.H., 2016NSCA 70, paras. 11-12; Allen v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2011 NSCA 72, para. 17. [18] Ms. MacNutt’s affidavit explains her perspective: 7.

I hereby confirm that I have a genuine intention to appeal and that I first formed such an intention on the 21st of June, 2016. 8. I was not able to file my Notice of Appeal within the deadline provided in Civil procedure Rule 90.13 or 90.05 for the followingreasons: 9. I attempted to file a Notice of Appeal at Halifax law Courts, on or about July 27th, but was advised that there was no Order filedregarding Case # SK -444024, thus the Notice of Appeal could not be processed or filed, at which time I called Kentville Justice CentreProthonotary, Ms.

Reid Boudreau to inquire as to whether there had been an Order filed. 10. Ms. Reid Boudreau initiated process for Order from Justice Chipman which was issued August 26th, 2016. 11. I reviewed Civil Procedure Rules and determined deadline for Notice of Appeal following issuance of Order. 12. I filed Notice of Appeal Sept. 27th, 2016, on the understanding that all deadlines and procedures conformed to Civil ProcedureRules. 13. I immediately distributed Notice of Appeal to respondents and Justice Chipman. 14. I was not aware that there was non-compliance until Respondent’s counsel, Mr.

Jonathan Cumming raised issue with respect todeadlines for filing Notice of Appeal. 15. Following a sequence of e-mails, Prothonotary Caroline McInnes confirmed that a Motion to Extend Deadline to Appeal and an Order for the Decision of June 21st, 2016 were required. [19] The Respondents neither sought to cross-examine Ms. MacNutt, nor filed an affidavit to question her version. [20] Ms. MacNutt wished to appeal from the outset, but was confused about the time periods in the Rules. The Respondents,represented by counsel, were content to do nothing until her appeal period expired. [21] Rules 78.04(3)(

a) and (

d) say that, in the absence of specific directions, (1) “the successful party must prepare the draft order”and, after the other party either consents to form or objects, (2) “the successful party must deliver” the consented draft order or statementof objection to the judge. The Rules direct the successful party to take the initiative. The successful parties were Scott and Acadia. Scottand Acadia did not follow Rule 78.04(3). They bided their time until Ms. MacNutt’s appeal period expired, then objected to her latefiling. [22] Ms. MacNutt, unrepresented by counsel, then did the Respondents’ job by taking the initiative to obtain the Merits Order.

[ 23 ] On the extension motion, Scott contended that expiry of 25 days from the Merits Decision of June 21, 2016 scuttled Ms. MacNutt’s appeal forever, despite the Merits Order of October 11, 2016. Scott cited no authority that supported that view. As noted above, that view contradicts a series of authorities from this Court. [ 24 ] Opportunism has no station in the interests of justice. I have no hesitation in ruling that the that the extension be granted. Ms. MacNutt shall have until October 20, 2016 to file a notice of appeal from the costs Order. She has until 25 days from October 11, 2016, calculated according to Rule 94, to file a notice of appeal from the merits Order. Fichaud, J.A.