Date: 19980529
Docket: T-245-86
BETWEEN:
SHIRLEY LARDEN,
Plaintiff/Appellant,
- and -
HER MAJESTY THE QUEEN, THE MINISTER OF INDIAN AND
NORTHERN AFFAIRS OF CANADA, MARVIN ANDREW JOE,
DAVID JAMES JOE, EDITH BAIRD, NORMA JACOBS,
LEILEAN KOLLER, BRIAN CARDINAL, RENE CARDINAL,
JEANNE CARDINAL, CINDY WATSON AND H. ERVIN,
Defendants,
- and -
THE MINISTER OF INDIAN AND NORTHERN
AFFAIRS OF CANADA AND H. ERVIN,
Respondents.
REASONS FOR ORDER
JOHN. A. HARGRAVE,
PROTHONOTARY
BACKGROUND
1� These reasons arise out of the Plaintiff's motion for an extension of time within which to appeal my Order of 1 April 1998 whereby I struck out this action, without leave to amend.
2� I struck out the action because it was clearly frivolous, vexatious and an abuse of the Court's process. I noted it was an action which "... cannot lead to any practical result, but rather has and continues to drag the Defendants through long and expensive litigation for no possible benefit." (page 16 of Reasons of 1 April 1998). I went on to deny leave to amend, for the only apparent amendment was that the settlement of an estate, between the Plaintiff and her sibling Defendants, was made under duress. The amendment was bad at law and absent even a scintilla of a chance of success.
CONSIDERATION
3� A potential appellant ought not to be deprived of his or her day for an appeal on a mere technicality. However the courts do not look upon a failure to file an appeal in a timely manner as a mere technicality. It is a serious matter of procedural law, for time limits are to be observed. The courts therefore look for special elements and reasons which might justify an extension of time within which to appeal.
4� In assessing an application for an extension of time within which to appeal the prime consideration is that justice be done for all of the parties to the proceeding. Outside of that element there are no rigid rules for determining when an extension ought to be granted: see for example The Queen v. Guaranteed Homes [1979] C.T.C. 190 at 191 (F.C.T.D.). There are some basic considerations which an applicant for an extension of time must satisfy. Here I have in mind that the applicant must show a bona fide intention to appeal arising when he or she had that right; that the delay was the result of special circumstances which serve to excuse or justify the failure to file the appeal in a timely manner; and that it must be at least arguable that the decision appealed from is wrong: see Guaranteed Homes (supra) at 191 - 193 and Pierre J. LeBel v. The Queen [1987] 2 C.T.C. 86 at 88, where Mr. Justice Teitelbaum, of the Trial Division, sets out the test applied in the Guaranteed Homes case. In addition to a consideration of the interests of justice, the continuing intention to appeal, the special circumstances of the instance and whether there is an arguable case, the courts have also looked at the length of the delay and the prejudice not only to the appellant, but also to the potential respondents: see for example Karon Resources Inc. v. Minister of National Revenue (1994) 71 F.T.R. 232 at 235 - 236 (T.D.).
5� In the present instance Mrs. Larden sets out, in her affidavit in support of the motion, that on receiving my Order she immediately requested her then counsel to appeal. Counsel advised she was unwilling to take the appeal, but that she would deliver the file to Mrs. Larden so that she might proceed with an appeal on her own if she so wished. Mrs. Larden deposes that she did not receive the file from her lawyers until 15 April, four days after the time for appeal had run out. She says that while she was waiting for the file she attempted to contact new counsel, but without success. She also goes on to explain why she did nothing on the file between about 1990 and the date on which the action was struck out, however that was well canvassed at the hearing of the motion to strike out and is not relevant in the present instance.
6� Mrs. Larden denies in her affidavit that her claim is vexatious and an abuse of process. It is her view that she would not require a lengthy extension of time and that it would be in the interests of justice to allow the extension.
7� Dealing first with the delay, it is minimal in this instance. Thus there is no basis to refuse the extension by reason of excessive delay.
8� Similarly I accept that Mrs. Larden formed a continuing intention to appeal at an early stage.
9� The only relevant evidence of special circumstances, in Mrs. Larden's affidavit, is that she was unable to file an appeal within the time allowed because of counsel's unwillingness to act for her and her inability to retain new counsel, in part by reason of the intervention of the Easter weekend and in part by a delay of just over two weeks in obtaining her file from the firm that had acted for her. The affidavit evidence is a little thin. Indeed the delay is symptomatic of what has happened over the past dozen years on the file as a whole. On balance I am not prepared to say that there are special circumstances which, alone, might justify an extension of time.
10� Where this application completely fails is on examination of the merits of the appeal. The action was struck out, without leave to amend, as frivolous, vexatious and an abuse, in short, an action without merit which could not be assisted by amendment of the statement of claim. Mrs. Larden, in her affidavit, makes the bare statement that she believes the claim has merit and that the interests of justice would be best served by granting an extension of time within which to appeal. There is no elaboration on this. Mrs. Larden gives no factual background and sheds no light on the appeal's merits. I am not persuaded that there are any arguable issues upon which Mrs. Larden might rely on an appeal.
11� The Defendants would be prejudiced if this matter were reopened. That prejudice is not the possibility of losing the certainty of the 1 April 1998 decision striking out the Plaintiff's action. Rather, Ms. Edith Baird, one of the Defendants and a sister of Mrs. Larden sets out, in an affidavit in opposition to the motion, that the uncertainty is disrupting her life, that the prolonging of the action is causing stress to her and to her family, that she is becoming depressed by the whole of the litigation and that she wishes to get on with her life. She also points to the fact that Mrs. Larden has received everything for which she bargained, including substantial land and money from the estate of their parents, but that she, Ms. Baird, and her family, have limited financial resources by which to continue defending this proceeding.
12� There being no chance of a successful outcome of the action, from Mrs. Larden's point of view, she suffers no prejudice through the denial of this motion.
CONCLUSION
13� In the present instance, given all of the circumstances, there are no factors sufficient to justify an extension of time, thus depriving the successful Defendants of the benefit of the time limit for filing an appeal. It is not in the interests of justice to grant an extension.
14� Costs to the non-governmental Defendants.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
29 May 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-245-86
STYLE OF CAUSE: Shirley Larden
v.
HMQ and others
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF
JOHN A. HARGRAVE, PROTHONOTARY
dated May 29, 1998
APPEARANCES:
Ms. Alisa Noda for Plaintiff/Appellant
Ms. Shirley LardenPlaintiff/Appellant
Mr. Darwin Hanna for Defendants
SOLICITORS OF RECORD:
Ms. Alisa Noda
Burnaby, BC for Plaintiff/Appellant
Callison & Hanna
Vancouver, BC for Defendants