Date: 20011001
NOVA SCOTIA COURT OF APPEAL
[Cite as: Jollymore Estate v. Jollymore, 2001 NSCA 133]
BETWEEN:
Estate of Thomas Jollymore and
Della Harnish, Executrix
Appellants/Cross-Applicants
- and -
Eric Jollymore, Marion Jollymore,
David Jollymore and Percy Jollymore
Respondents/Applicants
DECISION
Counsel: Albert E. Bremner, Q.C. , for the appellants/cross- applicants
Janus E. Naugler for the respondents/applicants
Application heard
by teleconference: September 18, 2001
Decision Delivered: October 1, 2001
BEFORE THE HONOURABLE JUSTICE JAMIE W.S. SAUNDERS,
IN CHAMBERS
Saunders, J.A.: (In Chambers)
[1] This decision follows my consideration of the submissions made by counsel during a teleconference on Tuesday, September 18, 2001. The within application and cross-application stem from counsels’ initial appearance before me in Chambers on July 26, 2001. That appearance in July also concerned parallel applications. The first was brought on behalf of the respondents to strike the appellants’ appeal for non-compliance pursuant to Civil Procedure Rule 62.17. The second application was brought on behalf of the appellant estate and executrix seeking an extension of time within which the appeal might be perfected.
[2] In written reasons, filed August 2nd, I denied the respondents’ application to strike and allowed the appellants’ application to extend time and perfect the appeal upon strict terms. I said, in part:
[20] Ms. Harnish faces personal liability of more than $40,000. The record indicates that she is now 81. From what I have read, she either deliberately ignores court appearances and the courts’ directions, or she is so old or unaccustomed to dealing with matters of this kind, that she is disinclined to treat them seriously. Whatever the history or the reason, should counsel’s handling of the appeal since April defeat her chance to be heard?
[21] I find that it ought not. Ms. Harnish should be given one last opportunity to appear before the court and argue her appeal, provided she meets the strict terms I am about to impose.
. . .
[25] The approach I take to this matter this morning is to seek to do justice between the parties, to find some solution which would respect the position of the respondents while giving one last chance to Ms. Harnish to get on with her appeal. Delay after all is relative. Thomas Jollymore died five years ago. Another few months delay will undoubtedly frustrate and inconvenience the respondents and their counsel but their disappointment can be assuaged with costs. By contrast, to allow the respondents’ motion would be to forever deprive Ms. Harnish of the chance to escape the sizable judgment facing her.
[26] The terms to be imposed are as follows. The respondents, represented by Ms. Naugler, shall have their costs of $1,500.00 payable forthwith. Second, there will be no further extensions of time given. Third, noncompliance by the appellant with any of these terms will result in the immediate striking of her appeals. Fourth, the following dates will be fixed.
[27] The appeal will be heard on November 27, 2001 at 2:00 in the afternoon. The appellant will file the appeal book and her factum on September 4, 2001. The respondents will file their factum on September 25, 2001.
[3] No order was ever taken out by counsel confirming these directions.
[4] On July 31, 2001 I granted an order, consented to by the parties, consolidating the appeals in the two actions, C.A. No. 170266 and C.A. No. 170434, to be heard as one appeal under C.A. No. 170434. That hearing is scheduled to take place before a panel of this court on November 27, 2001.
[5] The appellant, Ms. Harnish, did not file her appeal book and her factum on September 4th. She has not yet paid $1,500.00 costs which were ordered “payable forthwith.” Not surprisingly Ms. Naugler, counsel for the respondents, has filed her second application to strike the appeals. At my direction the Registrar informed counsel that I was prepared to hear them by teleconference provided written memoranda and supporting affidavits were filed in advance as directed.
[6] In support of her application to strike the appeals Ms. Naugler filed her affidavit sworn September 11, 2001 and a memorandum.
[7] For the appellants Mr. Bremner filed a memorandum together with an affidavit sworn September l7, 2001 to which were attached several exhibits including a legal opinion from John W. Chandler, Q.C., of Halifax, which opinion - among other documentation - Mr. Bremner now gives notice of his intention to apply for leave to introduce as “new evidence” before the panel hearing the matter in November.
[8] Any request that the panel consider evidence other than that which was before the court in first instance is, of course, a matter for the full panel to address. Such is beyond the authority of a judge of this court sitting in Chambers. Nothing in this decision should be taken as a comment upon the “new” documentation sought to be introduced by Mr. Bremner, nor the merits of any such application. To the extent that I refer to any of these documents or “new evidence” it will only be to lend context to the issues placed before me in the present application and cross-application.
[9] Ms. Naugler correctly points out that the terms imposed in my decision filed August 2, 2001 were clear and straight forward. The relevant provisions were as follows:
(a) the respondents, represented by Ms. Naugler, were to have their costs of $1,500.00, payable forthwith,
(b) there were to be no further extensions of time given,
(c) the appellant, Ms. Harnish, was to file her appeal book and her factum on or before September 4, 2001 and
(d) non-compliance by the appellant, Ms. Harnish, with any of those terms was to result in the immediate striking of her appeals.
[10] Ms. Naugler advises that the appeal book and factum were not filed as directed. They bear a date stamp as received by the court administration office, September 6, 2001. The costs of $1,500.00 were ordered payable to her clients forthwith. That has not been done. More than six weeks have passed since the costs were ordered to be paid.
[11] For these reasons it is not surprising that Ms. Naugler would argue vigorously and persuasively that her clients ought not to be put to any further expense or delay. She suggests that the matters disclosed in Mr. Bremner’s affidavit are nothing more than excuses or otherwise irrelevant.
[12] Mr. Bremner explained during our teleconference that he had just visited his client at her home. While he had not filed an affidavit from her attesting to her own financial circumstances, he declared “. . . as an officer of the court that she had no ability to pay $1,500.00 or any other sum of money for costs.”
[13] In Mr. Bremner’s submission his client has a genuine interest in the matter and as a matter of justice she ought to be heard. The respondents have effectively taken a judgment against her in excess of $40,000.00. Mr. Bremner said he believed that the fair market value of her property is less than that. I was told the land is assessed at $35,000.00. The trailer and its contents are not worth anything, in counsel’s opinion.
[14] Mr. Bremner said that he had inquired of her children and they are disabled or unemployed or otherwise incapable of providing financial assistance to their mother.
[15] In the result Mr. Bremner in his cross-application asked for an extension of time to the close of business September 6, 2001 so as to authorize the late filing of the appeal book and his factum as filed on that date.
Reasons
[16] One cannot dispute the fact that the appellants have failed to comply with the terms and directions set out in my decision dated August 2nd. Counsel for the respondents is perfectly justified in seeking, yet again, to strike out the appellants’ appeal and to insist upon immediate payment of the $1,500.00 costs outstanding to her clients. That would be the strict result following a failure to abide by the directions that I had imposed. Such a “black letter” approach would be virtually unassailable.
[17] But I cannot, in good conscience, judicially endorse such a result in light of the circumstances now apparent from the record. Such would be a harsh remedy that virtually ignored any consideration or weighing of the interests of these parties. It would hardly bring about a just result.
[18] As Mr. Bremner’s affidavit sworn September 17th makes plain, there were several technical and mechanical difficulties that arose in his office that made it impossible for him to file the appeal book and the factum on its due date, Tuesday, September 4, 2001. He alerted court staff and explained the reasons for his delay. He went to great lengths to see that the factum was typed and printed by 8:00 p.m. on Wednesday, September 5 and then drove to a 24 hour printing company in Halifax to ensure that multiple copies were printed, covered and bound, leaving them, by prearrangement, with the commissionaire on duty at the Law Courts shortly before midnight on September 5. After being assured by the Registrar of the Court of Appeal that such steps had been taken, I approved the late filing and authorized the reception of the appeal book and the appellants’ factum as soon as the office opened September 6, 2001. There had been substantial compliance with the direction I had given for filing. I was satisfied that the interests of justice required its, albeit tardy, reception.
[19] I have, however, considerable difficulty understanding Mr. Bremner’s averment that part of his delay in having the factum finished before the end of August had to do with his ongoing discussions with John Chandler, Q.C., requesting that Mr. Chandler furnish an expert’s opinion, which opinion was ultimately provided on August 29. The Chandler opinion is, in the words of Mr. Bremner, relevant to at least one of the issues he hopes to canvass in argument at the appeal. He says it is a very “live” issue and one that ought to be considered by the panel in order to do justice between the parties. One would have thought that a diligent and serious litigant would have pressed to file her appeal book and factum on time and as required, leaving to later the securing of the opinion and any application for leave to adduce it.
[20] In light of the “eleventh hour” difficulties experienced by Mr. Bremner and after considering the submissions of counsel, I am prepared to grant the appellants’ cross-application formally extending time to the close of business September 6, 2001, thereby allowing the late filing of the appeal book and the factum, as filed on that date.
[21] Counsel for the appellants’ representations concerning his client Della Harnish’s “delay” in paying the $1,500 costs is a much different matter. On this point Mr. Bremner swears, in §4, 5 and 6 of his affidavit as follows:
4. That I was present at the Chambers Hearing on July 26, 2001 before Saunders J and I recall saying if a $1500 order of costs was made against my client I would have to pay as my client Della Harnish did not and does not have the means to pay costs of $1500 forthwith (emphasis added.)
5. That at the end of August, 2001 I made arrangements and had $1500 transferred to my personal bank account, but subsequent to completing the Appellants Factum herein (where I speak of paying the $1500 into court) I have had occasion to review the provisions of the Legal Ethics and Professional Conduct Handbook for lawyers practising in Nova Scotia, particularly Rule 7 g and the commentary on that Rule and Regulation 48 D of the Nova Scotia Barristers Society and now feel I cannot become involved as a professional in fronting money for costs in a non contingency fee matter.
6. That if in fact there were to be an order for security for costs or further direction that the $1500 costs awarded herein be paid before the Appeal Hearing takes place I would have to consult further with my client on whether there is a possibility of any such payment being made or what alternatives exist, if any, however I believe that consideration of the matter deposed to in the following Paragraphs 13-19 will serve to mitigate the earlier order and any move to either enforce or otherwise deal with the order short of a full Hearing on Appeal.
[22] These averments sworn by Mr. Bremner in his affidavit of September 17, were expanded somewhat during our teleconference the next day when, as noted earlier in these reasons, Mr. Bremner voiced his belief that his client had no ability to pay any sum of money for costs.
[23] Whatever the good intentions of counsel, this is not proper evidence of Mrs. Harnish’s impecuniosity or imminent financial ruin such as might persuade me to relax my earlier directions that she pay the respondents $1,500 costs forthwith. There is no affidavit from Mrs. Harnish before the court providing full and accurate details of her financial circumstances. There is no sworn statement of financial information with which to measure her ability to access cash, real or personal property or other forms of security. Mrs. Harnish has not, for example, set out what attempts, if any, she has made to borrow funds with which to pay costs. She has not provided any information under oath to verify her alleged difficulties or explain her refusal or inability to honour my previous direction. I am therefore unable to conclude that Mrs. Harnish has insufficient means to comply with the direction I gave concerning costs. My direction obliging the appellant to pay the respondents $1,500.00 costs forthwith stands. I am not, however, prepared to strike the appeal. The respondents have filed their factum and the case is ready to be argued and heard on November 27, 2001. The matter of Mrs. Harnish’s non-compliance with the order for costs - should it still be outstanding - may be assessed by the full panel hearing the appeal, as it sees fit.
[24] In order to bring an end to these intermittent, parallel applications I have prepared and signed an order giving effect to my directions. A copy will be provided to counsel by the Registrar.
Saunders, J.A.