NOVA SCOTIA COURT OF APPEAL
Citation: Tabensky v. Hope, 2008 NSCA 66
Date: 20080710
Docket: CA 298110
Registry: Halifax
Between:
Marie Tabensky
Appellant
v.
Donald Bernard Hope and Rosamond Hope
Respondents
Judge: The Honourable Justice Jamie W. S. Saunders
Application Heard: July 10, 2008, in Halifax, Nova Scotia, In Chambers
Written Decision: July 10, 2008
Held: Application to extend time granted
Counsel: Adam D. Rodgers, for the appellant
P. Gregory MacIsaac, for the respondents
Decision: (Orally)
[1] Ms. Tabensky hopes to appeal the decision and order of Nova Scotia Supreme Court Justice Frank C. Edwards, 2007 NSSC 21, the effect of which was to find that Ms. Tabensky, and the respondents Donald Hope and Rosamond Hope hold title to the subject property situate in River Denys Basin, Inverness County, as tenants-in-common, and obliging Ms. Tabensky to execute a deed conveying a fifty percent (50%) interest in the property to the Hopes.
[2] In her affidavit Ms. Tabensky swears that she always intended to appeal Justice Edwards’ decision, and that her intentions were well known, but that through a suspected administrative glitch in the local prothonotary’s office, she and her counsel were not made aware an order had been issued until mid-February, 2008. Ms. Tabensky then took immediate steps to instruct her counsel to rectify the situation and bring an application to extend the time for filing her notice of appeal.
[3] Ms. Tabensky had thirty days from the date of Justice Edwards’ November 10, 2007 order to file her notice of appeal (CPR 62.02(1)(c)). In order to pursue her appeal which is more than six months out of time, she requires my leave. CPR 62.31(7)(e) provides:
62.31(7) a Judge may order that
(e) any time prescribed by this rule be extended or abridged before or after the expiration thereof; . . .
In addition to this specific provision there is of course a general power respecting the extension of time limitations found in CPR 3.03, which provides in part:
3.03. (1) The court may, on such terms as it thinks just, extend or abridge the period within which a person is required or authorized by these Rules, or by any order, to do or abstain from doing any act in a proceeding.
(2) The court may extend any period referred to in paragraph (1) although the application for extension is not made until after the expiration of the period. . . .
[4] The factors to be considered when deciding whether time limits for bringing an appeal should be extended, have been described by this court on many occasions, and I need not repeat them here. See, for example, Tibbetts v. Tibbetts (1992) 112 N.S.R. (2d) 173, and Jollymore Estate v. Jollymore 2001 NSCA 116.
[5] After considering the record before me and the submissions of counsel I am persuaded that time should be extended so as to enable Ms. Tabensky to pursue her intended appeal.
[6] It is obvious that she has persistently expressed a clear intention to appeal the trial judge’s decision, from the time she and her counsel first received it. She gives a reasonable explanation for her delay in not commencing the appeal within the prescribed time as being unaware that the order had been signed and issued by the court, believing on advice of counsel that time would not start to run until that order had been executed. Although the order was issued November 10, 2007, neither Ms. Tabensky nor her counsel learned of its existence until they made inquiries on February 11, 2008. Whatever the explanation for the glitch in delivery, no fault can be assigned to Ms. Tabensky personally.
[7] The result of the impugned decision is that she is now a co-owner of the land, with the respondents. The parcel of land is too small to subdivide, and the parties are not able to amicably share the parcel. Ms. Tabensky had a bona fide intention to appeal the decision at an early stage before the appeal period commenced. Mr. and Mrs. Hope were notified at an early stage of Ms. Tabensky’s intention to appeal. There is nothing in the record to suggest that the respondents have taken any steps with respect to the land that could be interpreted as relying upon the appeal not being pursued. The single issue raised in the proposed notice of appeal is that the trial judge erred in law in deciding that an earlier conveyance between the parties satisfied the requirements of the Statute of Frauds, R.S.N.S. 1989, c. 442. Taking a flexible approach in my consideration of these circumstances I am satisfied that the interests of justice require an extension of the time limits prescribed in the Rules.
[8] Accordingly Ms. Tabensky will have until the close of business, Wednesday, July 16, 2008 to file her notice of appeal. I will also direct that the following dates be fixed:
Appeal Book is Due: August 22, 2008
Appellant’s Factum is Due: September 26, 2008
Respondents’ Factum is Due: October 24, 2008
Appeal to be Heard: December 11, 2008 @ 2:00 p.m.
[9] I fix costs of today’s application in the amount of $750.00, inclusive of disbursements as being costs in the eventual appeal, but in addition to whatever costs may be awarded when the appeal is ultimately heard and decided.
Saunders, J. A.