Levy v Levy, 2022 SKCA 126

Court of Appeal for Saskatchewan Docket: CACV3952 Citation: Levy v Levy , 2022 SKCA 126 Date: 2022-11-02 Between: Gisele Marie Levy Appellant (Respondent) And Paul James Levy Respondent (Petitioner) Before: Schwann, Tholl and McCreary JJ.A. Disposition: Application to adduce fresh evidence denied; Appeal dismissed Written reasons by: The Honourable Madam Justice McCreary In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Tholl On appeal from: DIV 127 of 2019, Battleford Appeal heard: October 7, 2022 Counsel: Gisele Marie Levy on her own behalf Paul James Levy on his own behalf McCreary J.A. I. INTRODUCTION [ 1 ] Gisele Levy appeals from a judgment of a judge of the Court of Queen’s Bench, sitting in Chambers: Levy v Levy (25 November 2021) Battleford, DIV 127 of 2019 (Sask QB) [ Judgment ]. The Judgment disposed of a number of issues arising from the parties’ marital breakdown. Specifically, it: (

a) granted the divorce of Paul Levy and Ms. Levy; (

b) directed that the primary residence of the parties’ disabled adult son, Mathew, would be with Ms. Levy; (

c) granted joint-decision making authority for Mathew with respect to most matters, but conferred sole-decision making authority on Mr. Levy for any matters arising under The Adult Guardianship and Co-decision-making Act , SS 2000, c A-5.3 , or for any applications made for Saskatchewan Assured Income for Disability Benefits; (

d) scheduled parenting time for Mr. Levy with Mathew; (

e) directed an unequal division of family property, which, according to Mr. Levy, favoured Ms. Levy; and (

f) expressly provided that Ms. Levy could bring an application for spousal support at a later date. [ 2 ] Mr. Levy’s petition was issued October 21, 2019, and personally served on Ms. Levy on February 23, 2020. On May 10, 2021, Ms. Levy was noted in default for failing to file a reply to the petition. Because Ms. Levy was noted in default, Mr. Levy applied for judgment on a without notice basis, although Ms. Levy was provided with a copy of that application by email on October 5, 2021.

On October 26, 2021, the Chambers judge reviewed the without notice application and issued a fiat requiring the application to be brought with notice, and for Ms. Levy to be “served in accordance with” The Queen’s Bench Rules [ Rules ]. Three unsuccessful attempts were made to personally serve Ms. Levy with the application for judgment. On November 10, 2021, the application for judgment was sent to Ms. Levy via email, with the application returnable on November 25, 2021. [ 3 ] In her fiat of November 25, 2021, the Chambers judge determined that Ms.

Levy had received notice of the application for judgment and granted judgment in Ms. Levy’s absence. [ 4 ] Ms. Levy’s grounds of appeal were not set out clearly in the notice of appeal, but from her oral submissions she can be understood as seeking to appeal the Judgment ’s division of property and parenting directives on the ground that the Chambers judge erred by granting judgment in her absence because she had not received notice of the application for judgment. [ 5 ] Ms. Levy also seeks to adduce fresh evidence consisting of medical records relating to issues with her nose, an email from Mr.

Levy’s current partner, and an affidavit attesting to the fact that Mr. Levy has not lived in the family home since May 2019 and that his current spouse has never lived there. [ 6 ] For the reasons that follow, the application to adduce fresh evidence is denied and the appeal is dismissed. II. STANDARD OF REVIEW [ 7 ] The first issue in this appeal involves the proper

interpretation of the Rules with respect to the service of documents. That decision is to be reviewed for correctness: Lorencz v Talukdar , 2020 SKCA 28 at para 51 , 446 DLR (4th) 487; and Regina Bypass Design

Builders v Supreme Steel LP, 2021 SKCA 82. The second issue for review is whether the Chambers judge erred when she found that Ms.Levy had received notice of the application for judgment. This is a question of fact. A finding of fact will only be disturbed by this Courtwhere there is a palpable and overriding error: Yorkton (City) v Mi-Sask Industries Ltd., 2021 SKCA 43 at paras 24–28, [2021] 6 WWR18.

The question of the sufficiency of the evidence is also a question of fact, reviewable for palpable and overriding error: R v SunbeamCorporation (Canada) Limited, (SCC), [1969] SCR 221 at 231; and Redhead Equipment v Canada (Attorney General),2016 SKCA 115 at para 25, 402 DLR (4th) 649. III. ANALYSIS [8] On the first issue, the Chambers judge correctly interpreted the Rules when she validated service of the application forjudgment on Ms. Levy after finding that Ms. Levy had notice of the application. [9] Ms.

Levy was originally represented by legal counsel, who withdrew on May 18, 2021, and provided, in the notice ofwithdrawal, Ms. Levy’s home address as her address for service. The notice of withdrawal did not list an email address for Ms. Levy.Nevertheless, Mr. Levy’s counsel first provided the application for judgment without notice to Ms. Levy by sending it to her at her emailaddress. Thereafter, the Chambers judge required Ms. Levy to be served with the application in accordance with the Rules, with a returndate for a hearing. Because the last address for service for Ms.

Levy was her home address, service in accordance with Rule 12-4 requiredMs. Levy to be served at her home by personal service, mail or courier. [10] Mr. Levy attempted to personally serve Ms. Levy at her home, using a process server. However, despite making three attemptsand once observing that someone was home when he knocked, the process server was unsuccessful. Thereafter, on November 10, 2021,Mr. Levy’s legal counsel sent the application for judgment to Ms.

Levy at her email address, and that email was successfully transmitted. [11] On the return date in Chambers, the Chambers judge reviewed affidavits filed by Mr. Levy, including one demonstrating thatthe email enclosing the application for judgment was successfully sent to Ms. Levy’s email address, another showing that Ms. Levy hadcorresponded on multiple occasions with Mr. Levy’s counsel during the relevant time period from her email address, and an affidavit fromthe process server demonstrating that three unsuccessful attempts had been made to personally serve Ms. Levy at her home.

On the basisof this evidence, the Chambers judge validated service on Ms. Levy, deeming her to have been served by email on November 10, 2021. [12] Pursuant to Rule 12-1(1) of the Rules, the Chambers judge was entitled to validate service of the application for judgment if theconditions of Rule 12-1(2)(

a) or (

b) were met. Rule 12-1(2)(

a) and (

b) provide that the “primary consideration” for the court in theexercise of its discretion to determine that a person has been served is whether the person “received notice of the document” or “wouldhave received notice except for the attempts of that person to evade service”. The Chambers judge correctly interpreted Rules 12-1(1) and12-1(2) when she deemed Ms. Levy to have been served by relying on the affidavit evidence that demonstrated Ms. Levy had receivednotice of the application: McAdam v Grimard, 2017 SKQB 39 at paras 22 and 24, 7 CPC (8th) 123.

Having correctly interpreted theRules, the Chambers judge was entitled to exercise her discretion to validate service as she did. As I discuss below, nothing in the recordsuggests that the Chambers judge exercised her discretion improperly by failing to correctly identify the legal criteria which governed theexercise of her discretion or by misapplying those criteria, or by making a palpable and overriding error in her assessment of the facts: Kotv Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161. [13] On the second issue, Ms.

Levy argues that she did not have notice of the application for judgment and that, consequently, theChambers judge erred by finding that she did and by issuing the Judgment in her absence. [14] However, the record from the court below demonstrates that there was ample evidence to support the finding by the Chambersjudge that Ms. Levy received notice of the application for judgment.

She was served with the application twice by email: first, onOctober 5, 2021, when the application was brought on a without notice basis; and second, on November 10, 2021, when she was servedwith notice of the application with a November 25, 2021 return date for a Chambers hearing. In both these instances, the evidence showsthat Ms. Levy was successfully served by email at the same address that she had been using to communicate with legal counsel forMr. Levy. Ms. Levy’s email communications with Mr.

Levy’s legal counsel included: (1) three emails from her on October 5, 2021, atleast one of which was written in direct reply to the email attaching the application for judgment without notice; (2) an email onOctober 28, 2021, in which Ms. Levy indicated that the divorce was not uncontested; and (3) an email of November 1, 2021, in whichMs. Levy again noted that she contested the divorce. The email address at which Ms.

Levy was served is also the same email address shehas used to communicate with this Court. [15] In addition, as I previously noted, the record shows that three unsuccessful attempts were made to personally serve Ms. Levywith the application for judgment at her home between November 4 and November 6, 2021. The affidavit evidence from the processserver indicates that, on the first occasion, someone appeared to be at home because a light turned on in the home when he knocked, butthe door was not answered. [16] At the appeal hearing, Ms.

Levy was asked for her position respecting the emails sent to her email address on October 5, 2021,and November 10, 2021, which attached the application for judgment. She responded that she could not remember if she had receivedthem. [17] In the Chambers judge’s November 25, 2021 fiat that accompanied the Judgment, she stated: “The court accepts that Ms. Levyhad notice of this application, certainly by email on November 10th, 2021”. I am not persuaded that this finding of fact constitutes apalpable and overriding error. On the contrary, the record demonstrates that Ms.

Levy was served with the application for judgment on atleast two occasions at the email address she had consistently used, and that on one occasion she replied to Mr. Levy’s legal counsel indirect response to service of the application. [18] Ms. Levy had an opportunity to respond to the petition and to the application for judgment, but she did not do so. She has notprovided an explanation for why she did not respond, despite the record demonstrating that she corresponded electronically several timeswith Mr.

Levy’s counsel from the email address at which she was served with the application for judgment during the relevant timeperiod. Respectfully, the Court of Appeal is not empowered to overturn lower court decisions simply because a litigant failed or refused to

participate in the lower court process and, having judgment entered against them, does not like the result. The Judgment was not issued onthe basis of any palpable and overriding errors of fact, which would allow this Court to intervene. [19] In addition, for these same reasons I am satisfied that in entering the judgment in the absence of any response from Ms.

Levy,the Chambers judge did not err in her exercise of discretion. [20] Thus, there is no basis for this Court to intervene given the record from the court below. [21] Turning last to the application to adduce fresh evidence, Rule 59(1) of The Court of Appeal Rules, as it was when Ms. Levyfiled her notice of application, provided that a “party desiring to adduce fresh evidence on appeal shall, in accordance with existing law,apply to the court for leave to do so by notice of motion returnable on the date fixed for hearing the appeal”.

I note the substance of newRule 59(1), which came into effect on October 3, 2022, remains the same. The principles that usually govern Rule 59(1) applications are: (

a) Fresh evidence will not be admitted if, by due diligence, it could have been adduced in Chambers; (

b) The evidence must be relevant, in the sense that it bears upon a decisive or potentially decisive issue in the action; (

c) The evidence must be credible in the sense that it is reasonably capable of belief; and (

d) The evidence must be practically conclusive of a decisive or potentially decisive issue, or it must be such that, if believed, itcould reasonably be expected to have affected the result when taken with the other evidence adduced at trial: Maitland v Drozda (1983), (SK CA), 22 Sask R 1 (CA); and Turbo Resources Ltd. v Gibson (1987), (SK CA), 60 Sask R 221(CA). [22] I am not persuaded that the fresh evidence Ms. Levy seeks to adduce is at all relevant to the issue on appeal. The proposedfresh evidence does not address the notice issue in any manner.

Although the irrelevance of the proposed fresh evidence disposes of thematter, I also find that the proposed evidence could have been adduced in Chambers with due diligence on Ms. Levy’s part. Theapplication to adduce fresh evidence is dismissed. IV. CONCLUSION [23] In the result, the appeal is dismissed, as is the application to adduce fresh evidence. [24] Ms. Levy’s appeal had the benefit of the automatic stay of the Judgment, which in part required her to vacate the family homeby February 28, 2022. The appeal is now dismissed, but Ms. Levy still needs time to prepare to vacate the home.

I therefore order that Ms.Levy vacate the home by no later than January 8, 2023. [25] Regarding costs, Leurer J.A. referred the issue of costs on Ms. Levy’s application to extend the time to appeal to this panel. Ms.Levy shall pay Mr. Levy costs, fixed at $100 for the leave application. For the appeal proper, costs are fixed at $250. These awards takeinto account that Mr. Levy is self-represented, but nonetheless incurred some costs to prepare this matter. “McCreary J.A.” McCreary J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “Tholl J.A.” Tholl J.A.