Date: 19990122
Docket: A-233-98
OTTAWA, ONTARIO, FRIDAY, JANUARY 22, 1999
C O R A M: STRAYER J.A.
B E T W E E N:
GRACE CHISHOLM
Appellant
-and -
THE BANK OF NOVA SCOTIA
Respondent
ORDER
IT IS HEREBY ORDERED THAT:
(1) on consent the time be extended for the bringing of this motion by the appellant filed on December 3, 1998, nunc pro tunc;
(2) the appeal book consist of
(a) a table of contents;
(b) the notice of appeal to this Court;
(c) the judgment of the Trial Division appealed from, and any reasons given therefor;
(d) the originating notice of motion or application filed in the Trial Division by which the appellant herein sought judicial review;
(e) the affidavit of Grace Chisholm as filed in the Trial Division, with exhibits;
(f) any other affidavits with exhibits filed in the Trial Division in the proceeding leading to the judgment appealed from;
(g) this order and the reasons therefor;
(3) the appeal book be prepared, filed, and served by the appellant on or before February 26, 1999, failing which the respondent may apply under rules 167 and 369 for dismissal of this appeal; and
(4) the said motion be otherwise dismissed.
J.A.
Date: 1999
Docket: A-233-98
CORAM: STRAYER J.A.
B E T W E E N:
GRACE CHISHOLM
Appellant
-and -
THE BANK OF NOVA SCOTIA
Respondent
369 MOTION HEARD at Ottawa, Ontario on Friday, January 22, 1999
ORDER delivered at Ottawa, Ontario on Friday, January 22, 1999
REASONS FOR ORDER BY: STRAYER J.A.
Date: 19990122
Docket: A-233-98
C O R A M: STRAYER J.A.
B E T W E E N:
GRACE CHISHOLM
Appellant
-and -
THE BANK OF NOVA SCOTIA
Respondent
REASONS FOR ORDER
STRAYER J.A.
This file demonstrates a failure by both counsel to understand the rules of the Court, and to avoid unnecessary wastage of their time and that of the Court.
The appellant was entitled, under the rules as they then existed, to file a notice of appeal on April 6, 1998 which did not state the grounds of the appeal. Regrettable as that practice was, it was sanctioned by the old rules. Counsel for the respondent has wasted much time and effort in insisting that grounds should have been provided, initially it appears because they believed the new rules already to be in effect at the date of filing. (They came into effect on April 25, 1998). It was also wrong for the respondent's counsel to insist that the contents of the appeal book could not be determined until the grounds of appeal were known. This had never been the rule or practice in this Court under the old rules and I see nothing in the new rules which specifically requires that (although as a practical matter the new rules will ensure that the grounds are known before the appeal book is prepared). In the circumstances of the transition, where this appeal was started in accordance with the old rules, it was quite unjustified for the respondent to refuse to settle the contents of the appeal book without knowing the grounds of appeal.
As for counsel for the appellant, he has ignored the time requirements in the new rules which applied to all further steps required after April 25, 1998. It was made clear to him by the Registry on August 7, 1998 that, given the change in rules since this appeal was launched, the registry would prepare the appeal book if he could provide an agreement as to contents by September 7, 1998. This he could not do because of the position taken by the respondent and by his refusal to give to the respondent a proper statement of the grounds of his appeal (the correspondence he says stated the grounds is virtually meaningless on this point). Having failed by September 7 to obtain an agreement, he should have moved at once for directions. He did not do so for another 3 months, filing his motion on December 3, 1998. Nor has he afforded the Court the courtesy or the basic assistance of proposing a list of materials for inclusion in the appeal book.
Neither of the parties have focussed on the current requirements for the contents of an appeal book as set out in Rule 344. It is these rules which now apply to any further steps in the appeal. Lacking the trial record or the tribunal record I am giving a direction as to contents which may be more extensive than required but I have no basis for doing otherwise. In particular I am requiring, notwithstanding the objections of the respondent, that the affidavits before the Trial Division be included complete with exhibits. It is, after all, the decision of the Trial Division that we are reviewing on this appeal and in the absence of agreement by the parties to the contrary I must assume that we may require the whole record before the Trial Division. We may have to consider whether the disputed evidence was properly admitted, interpreted, or ignored for irrelevance by the motions judge. Inclusion in the appeal book at this stage is not a determination of admissibility or relevance.
I have ordered no costs on this motion as I believe both parties have been at fault in refusing even a modicum of cooperation for the advancement of this appeal. Nor am I attempting to set out a schedule for further steps, none having been proposed to me, but have indicated a definite time limit for the filing of the appeal book. All time limits set by the new rules, following the filing of an appeal book, must be strictly adhered to. It should be clear to the parties that any further frivolous delays by either of them will not be sympathetically regarded by the Court.
J.A.
FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-233-98
STYLE OF CAUSE: Grace Chisholm v. The Bank of Nova Scotia
REASONS FOR ORDER BY: Strayer, J. A.
DATED: January 22, 1999
WRITTEN REPRESENTATIONSBY:
Mr. Osborne G. Barnwell for the Appellant
Ms. Peigi R. Ross for the Respondent
SOLICITORS OF RECORD:
Ferguson, Barnwell for the Appellant North York, Ontario
Hicks Morley Hamilton for the Respondent Stewart Storie
Toronto, Ontario