Cite as: Nova Scotia (Attorney General) v. Bowater Mersey Paper Company, 1992 NSCA 111 S.C.A. No. 02640 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION I BETWEEN: I THE ATTORNEY GENERAL OF NOVA ) John D. Wood, Esq. SCOTIA, representing Her Majesty) for the Appellant the Queen in Right of the I Province of Nova Scotia Ronald N. Pugsley, Q.C. for the Respondent Appellant I - and -Application Heard: BOWATER MERSEY PAPER COMPANY March 26, 1992 I , , LIMITED Decision Delivered: Respondent April 7, 1992 I I I I BEFORE THE HONOURABLE MR. JUSTICE J.D. HALLETT IN CHAMBERS I I I l I [
. t HALLETT, J.A. This is an application quash a notice of appeal filed I March 4th, 1992, appealing a Justice Tidman of the Trial I on February 4th, 1992. The the decision related to an I therefore the appellant was required I of appeal within 10 days of the decision. relies on the provisions of I 62.02(l)(a). On the other hand the as an order was not taken out Rule rather than (a) applies within 30 days. I Rule 62.02(1) is not as I The Rule provides as follows: "62.02(1) An appeal, other than a tribunal I appeal, shall be brought notice of appeal with the Registrar (a) in the case of I interlocutory order or an order as to costs only, within ten days, and I ( b) in the case of an under the Divorce and I (c) in the case of an judgment, within thirty days, l [ [ by the respondent to by the appellant on decision rendered by Mr. Division of this Court respondent asserts that interlocutory matter and to file a notice The respondent Civil Procedure Rule appellant asserts that sub-section ( c) of the and the notice was filed clear as it might be. by filing a an appeal from an appeal from a judgment Act, within thirty days, appeal from any other
2 from the date of the appealed from or, if made from the date of the decision. Attempting to ascertain of the draftsman it is helpful to look at Rule 51 which relates to "Orders". Rule relevant. It provides as follows: " Drawing up of order 51.03.(1) Subject an order shall be drawn by the successful party, settled as 51.05(1), and entered prothonotary, provided that when is not entered within the judgment, decision given, any other party may draw up, settle and enter the order. (2) Unless the court an order need not be addition to providing merely grants leave to, (a) extend the time required or authorized or direction to any act; (b) issue an originating one for service out of the jurisdiction; (c) amend an originating notice or pleading; (d) file a document; Rule 51.03 makes it clear that the of an order is contemplated to give effect to a decision of a trial judge except in mundane matters as provided I ~I .J ] order for judgment no order has been " what was the intention I 51.03 is particularly J J to paragraph (2), J provided by rule with the an order l ten days after or direction is -J otherwise orders, ] drawn up that, in for costs, if any, ] within which a person is by a rule, order do or ref rain from doing ] notice, other than ] [E. 42/4)" taking out l J I ]
. t 3 [, \.. I for in sub-Rule 2. Furthermore, sub-Rule (1) requires the successful party to draw the order and by implication I arrange that the terms of the order be settled and I the order entered with the prothonotary. Sub-Rule 1 provides that if the successful party has not caused I the order to be entered within ten days after the judgment any other party "may draw up, settle and enter I the order". I I do not agree with the appellant's argument that this ยทwas not an interlocutory matter~ it was I a decision dealing with an evidentiary issue that was rendered in the course of a proceeding. The decision ~ did not finally dispose of the proceeding which related I to an appeal from a decision of the Minister of Finance made under the Health Services Tax Act. I In this case the respondent, the successful party on the application before Justice Tidman, did I not do what was required by sub-Rule (1). The respondent I did not enter the order within ten days of Justice Tidman' s decision. The respondent has not yet entered I the order yet asserts that as the notice of appeal was not filed within ten days of Justice Tidman's I decision the appellant is out of time. l In my opinion the judges of this court in passing Rule 62.02(l)(a) could not have intended to deprive I I
4 a party of a right of appeal in an interlocutory matter was not filed within ten days 51.03 required the respondent order. The respondent did to take advantage of his own the rules by asserting that against the appellant as soon as the decision of Justice Tidman was filed. Rule 51.12 provides: "Appeals from orders 51.12. A party may appeal in the manner provided in Rule 62." In my opinion, as the successful party is required by Rule 51. 03 to take out the order and to do so before another party has the right to it would be unreasonable to to mean that an appeal from must be started within ten days of the decision. 62.02(1) provides for an appeal order by filing a notice within ten days of the Order. Considering the wording of this provisions of Rules 51. 03 and Rule 62.02(1) as requiring a interlocutory matter to be J from a decision rendered if the notice of appeal ] of the decision. Rule to draw and enter an I not do so and now seeks failure to comply with J the clock began to run ] l l from an order -J l has ten days do so, l interpret Rule 62.02(1) ] an interlocutory matter Rule l from an interlocutory J paragraph and of the ] 51.12 I would interpret notice of appeal in an ] filed within ten days of J J ]
ยทt: 5 the Order and failing the taking out of an Order within I thirty days of the decision. is consistent with the requirement I drawn, settled and entered or decision of a trial division I mundane matters. I As the respondent did not enter an Order following I Justice Tidman's decision, I am satisfied the appellant filed its notice of appeal within I under Rule 62.02. The ten-day to tick, however, the thirty The notice of appeal was filed within thirty days. I application to quash the notice of appeal is dismissed. I I I I I l [ [ Paragraph 62.02(l}(a) that an order be to formalize a judgment judge other than in the time permitted clock did not begin day clock was running. The ,( WJ ~\ ~ V."' ___;J I J.A.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.