NOVA SCOTIA COURT OF APPEAL
Citation: MacGillivary v. Smith, 2003 NSCA 46
Date: 20030425
Docket: CA 189018
Registry: Halifax
Between:
Donald MacGillivary and Brian Heron
Appellants/Applicants
v.
Charles A. Smith
Respondent
Judge: The Honourable Justice M. Jill Hamilton, in Chambers
Application Heard: March 27, 2003
Held: Application for extension of time to serve Notice of Appeal granted, extending the time to the date of actual service, November 6, 2002. Costs on the application will be costs in the appeal.
Counsel: Mr. Brian Heron, for the Appellants (self-represented)
Mr. John E. MacDonell, for the Respondent
Decision:
[1] These are my reasons with respect to an application by the appellants to prove they served their notice of appeal on the respondent in accordance with Civil Procedure Rule 62.02(2), or in the alternative, for an extension of time to serve their notice of appeal on the respondent. This application was heard by telephone by agreement of the parties on March 27, 2003.
[2] The appellants filed a notice of appeal with the court by fax on October 18, 2002, appealing the decision and orders of Justice Gerald R. P. Moir of the Supreme Court, filed September 18, 2002, and his subsequent supplementary decision dated September 25, 2002. Justice Moir’s decisions were made pursuant to Rule 20.09, on the basis the appellants had failed to comply with the disclosure requirements of that Rule, despite Justice Suzanne Hood having previously ordered such disclosure. On the basis the appellants failed to disclose as required, Justice Moir struck the appellants’ defence to Mr. Smith’s application to set aside a conveyance from one appellant, Brian Heron, to the other appellant, Donald MacGillivary, of a parcel of real property in Richmond County, Cape Breton. His decision entered judgement against the appellants jointly and severally, declared the conveyance void and set it aside.
[3] The notice of appeal filed by the appellants lists thirteen grounds of appeal ranging from lack of jurisdiction, procedural unfairness, ineffective assistance of counsel and failing to provide the appellants with an opportunity to be represented by counsel. In his decision Justice Moir stated:
“So from the deed, to the conduct of the defence, to the response to this application, the defendants have demonstrated an intention to obstruct.”
[4] The evidence submitted on the applications before me indicates that Mr. Heron and Mr. Smith have been involved in substantial litigation arising from a rental agreement they entered into in 1987 for a house in California. This agreement required Mr. Smith to offer to sell the house to Mr. Heron at the end of the rental term for US$115,000. There have been at least 14 concluded court proceedings in California arising from this one agreement, all but one of which favoured Mr. Smith. There is also an ongoing court proceeding in California and one in the Supreme Court of the United States relating to the same matter commenced by Mr. Heron. In addition to the American court proceedings there have been at least four separate court proceedings in Canada, two in Nova Scotia and two in the Supreme Court of Canada, involving several court appearances.
[5] The substantial materials filed by the respondent with respect to this application and a second application that was scheduled to be heard at the same time, were not filed with the court until March 21, 2003. During the telephone conference, Mr. Smith’s counsel indicated these materials had only been delivered to the appellants’ address for service, which is not his home, the day before the telephone conference, since his courier was not able to deliver them on March 24 and 25 because no one was home at that address. In light of these delivery problems, the first issue I dealt with during the telephone conference was whether these materials should be considered by me on the applications, given the time of their delivery to the appellants’ address for service and whether we should proceed or adjourn.
[6] On this preliminary issue I decided I would consider Mr. Smith’s materials. After I gave my decision, Mr. Heron indicated he wanted to proceed with at least the appellants’ application concerning the time of service of the notice of appeal, despite the fact he had not seen Mr. Smith’s materials. At Mr. Heron’s request we proceeded with the hearing of this application. I was comfortable Mr. Heron knew the consequences of his request even though he is not a member of the Nova Scotia Barristers Society, since he was a practicing member of the Florida bar a few years ago and has recently written the examinations to allow him to practice law in California.
[7] After hearing Mr. Heron and counsel for Mr. Smith on the appellants’ application, I indicated the appellants had not satisfied me that the notice of appeal was served on Mr. Smith in accordance with the Rules, and I granted an extension of time to the appellants to serve their notice of appeal on Mr. Smith, to the date of actual service, namely November 6, 2002, and indicated that my reasons would follow. These are my reasons.
[8] I first want to make it clear this decision only extends the time for the appellants to serve the notice of appeal faxed to the court on October 18, 2002. I did not interpret the appellants’ application as counsel for Mr. Smith did, to be seeking to amend the filed notice of appeal to include prior decisions of the Supreme and Appeal courts of Nova Scotia. My decision is limited to the notice of appeal as faxed which, as acknowledged by Mr. Heron, does not extend to any decisions besides those of Justice Moir referred to in the filed notice of appeal.
[9] The procedure to be followed in commencing an appeal is set out in Rule 62.02(1) which provides as follows:
62.02. (1) An appeal, other than a tribunal appeal, shall be brought by filing a notice of appeal with the Registrar
(a) in the case of an appeal from an interlocutory order, an interim order or an order as to costs only, within ten (10) days, and
(b) in the case of an appeal from a judgment under the Divorce Act, within thirty (30) days, and
(c) in the case of an appeal from any other judgment, within thirty (30) days, from the date of the order for judgment appealed from or, if no order has been made from the date of the decision.
(2) A notice of appeal, other than in a tribunal appeal, shall be served within the time prescribed by rule 62.02(1) and as prescribed by rule 10.12 on any party in the proceedings in the court appealed from who may be directly affected by the appeal.
[10] There was nothing in the affidavit evidence filed that satisfied me the appellants served either Mr. Smith or his counsel with the notice of appeal within the time period set out in Rule 62.02(1). Mr. Heron suggested he faxed a copy of the notice of appeal to counsel for Mr. Smith on the same day he faxed it to the court, but he has not provided documentary proof of doing so. It is clear Mr. Smith’s counsel knew the appellants had filed a notice of appeal with the court within the time period for service set out in the Rule, but knowledge that a notice of appeal has been filed with the court is not service in accordance with the Rule. I am satisfied Rule 62.04(4), raised by Mr. Heron, which deals with amending a notice of appeal, does not apply to this application.
[11] In connection with the appellants alternate position, the test to be applied on an application for an extension of time such as this, is referred to in the case of Jollymore v. Jollymore, 2001 NSCA 116, commencing at ¶ 22:
“22 In this province, reference is often made to the so-called three part test for extensions of time in cases such as this. It is said that in order to qualify for such relief the court must be satisfied that:
(1) the applicant had a bona fide intention to appeal when the right to appeal existed;
(2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and
(3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of which being that there is a strong case for error at trial and real grounds justifying appellate interference.
See for example: Maritime Co-op Services Limited and Martin v. Maritime Processing Company Limited et al (1979), 32 N.S.R. (2d) 71 (per Macdonald, J.A.); and Federal Business Development Bank v. Springhill Bowling Alleys Limited, Bickerton and Canadian Imperial Bank of Commerce (1980), 40 N.S.R. (2d) 607 (per Pace, J.A.).
23 I note that some provinces, for example British Columbia, apply a five part test when deciding whether to extend time limits. See for example Trane Sales & Service Agency (B.C.) v. Integrated Building Corp., [1987] B.C.J. No. 1765 (B.C.C.A., in Chambers). Interestingly, the fifth "part" is to ask whether it is in the interest of justice to allow the extension.
24 I prefer a less rigid approach. Cases cannot be decided on a grid or chart. Ultimately the objective must be to do justice between the parties. I agree with the observations of Justice Hallett of this court in Tibbetts v. Tibbetts (1992), 112 N.S.R. (2d) 173 at para. 14:
There is nothing wrong with this three part test but it cannot be considered the only test for determining whether time for bringing an appeal should be extended. The basic rule of this court is as set out by Mr. Justice Cooper in the passage I have quoted from Scotia Chevrolet Oldsmobile Ltd. v. Whynot, 1 N.S.R. (2d) 1041, supra. That rule is much more flexible. The simple question the court must ask on such an application is whether justice requires the application be granted. There is no precise rule. The circumstances in each case must be considered so that justice can be done. A review of the older cases which Mr. Justice Cooper referred to in Scotia Chevrolet Oldsmobile Ltd. v. Whynot and which Mr. Justice Coffin reviewed in Blundon v. Storm, 1 N.S.R. (2d) 621, make it abundantly clear that the courts have consistently stated, for over 100 years, that this type of application cannot be bound up by rigid guidelines.”
[12] I am satisfied the appellants met the first step, that they had a bona fide intention to appeal when the right to appeal existed, since the notice of appeal was faxed to the court within the time period prescribed in the Rules.
[13] It is not as clear to me that the appellants met the second step, that they had a reasonable excuse for the delay in serving the respondent within the prescribed time. As mentioned above, Mr. Heron indicated he faxed a copy of the notice of appeal to counsel for Mr. Smith on the same day he faxed it to the court, but he has not provided documentary proof of doing so. Counsel for Mr. Smith denied receiving it. Mr. Heron pointed to the problems he has with his fax machine. Mr. Heron also suggested he is unfamiliar with the Rules, and contrasts the procedure for appeal in Nova Scotia with that in California. Mr. Heron commenced an appeal in Nova Scotia previously, and in connection with that appeal also had to apply to the court for an extension of time to file his appeal.
[14] I am not satisfied the appellants have met the third step. The evidence before me does not indicate any “compelling or exceptional circumstances” here that would warrant an extension of time.
[15] Not being satisfied the appellants should be granted an extension of time to serve the notice of appeal on the basis of the three part test, I considered what justice between the parties requires be done. I am not persuaded by the argument of Mr. Smith’s counsel that I should deny this application based solely on the large number of prior court proceedings that have all originated from the same agreement relating to the land in California. I have taken into account the fact Mr. Heron was late filing his notice of appeal the last time he appealed a decision to this court and that Mr. Heron told Mr. Smith’s counsel that the appellants were going to appeal before the time for filing and serving the notice of appeal expired. Most importantly, I am satisfied Mr. Smith has not suffered any prejudice by being served with the notice of appeal less than 20 days beyond the prescribed time. Accordingly I am satisfied the interests of justice require that I grant the application sought.
[16] The effect of my decision is that the notice of appeal filed with the court by fax on October 18, 2002, and served on Mr. Smith’s counsel by fax on November 6, 2002, is deemed to have been filed and served in accordance with the Rules.
[17] Costs on the application will be costs in the appeal as requested by Mr. Smith’s counsel.
Hamilton, J.A.