Tucker v. AXA General Insurance

Date: 20141008 Docket: 14/25 & 14/26 Citation: Tucker v. AXA General Insurance, 2014 NLCA 36 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: IAN TUCKER INTENDED APPELLANT AND: UNKNOWN PERSON INTENDED RESPONDENT - AND - BETWEEN: IAN TUCKER APPELLANT AND: AXA GENERAL INSURANCE RESPONDENT Coram: White, J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 2009 01T 4612 & 2011 01G 7191 (2012 NLTD(G) 132 & 2012 NLTD(G) 133) Application Heard: June 10, 2014 Judgment Rendered: June 10, 2014 (Orally) Written Reasons Filed: October 8, 2014 Page: 2 Counsel for the Appellant: Peter Shea Counsel for the Respondent: Edward J. Vanderkloet REASONS FOR ORAL DECISION White J.A.: [1] An inter partes interlocutory application to reinstate pursuant to rule 57.20(8) of the Rules of the Supreme Court, 1986 was made in relation to the notice of application for leave to appeal in matter 2012 01H 0067 (the “tort case”) and the notice of appeal in matter 2012 01H 0068 (the “contract case”). As 12 months had passed since the last step was taken in each case, these matters were deemed abandoned by administrative action under rule 57.20(4). [2] In these reasons I will refer to Ian Tucker, the intended appellant in the tort case and the appellant in the contract case, as Mr. Tucker or the applicant. I will refer to Unknown Person, the intended respondent in the tort case, and AXA General Insurance, the respondent in the contract case, collectively as the respondent or AXA. [3] A short time before the day set to hear the application, counsel for AXA indicated to the Court Registry that he wished to cross-examine the solicitor for the applicant on his affidavit filed in support of the applications to reinstate. The Court advised that in such circumstances another solicitor would have to appear for the applicant on the application. This was done and different counsel appeared for the applicant at the reinstatement hearing. [4] At the conclusion of the hearing, I exercised my discretion to allow the reinstatement applications, denied the request for cross-examination, and granted costs to the respondent. I indicated that written reasons would follow. These are those reasons. Factual Background [5] Mr. Tucker claims to have been struck and injured while walking in St. John’s on October 13, 2007. The driver of the vehicle, the vehicle itself, and the owner of the vehicle have never been identified. Mr. Tucker commenced the tort case on October 13, 2009. As Mr. Tucker had an automobile insurance policy through AXA which included coverage for damages caused by an uninsured or unidentified driver, he issued a claim Page: 3 against his insurers on November 18, 2011. AXA then applied for a determination of whether the limitation period to bring a claim under the policy had expired. Mr. Tucker also made an interlocutory application to add AXA as a defendant to the pleadings in the tort case. Both applications were heard together on August 28, 2012. [6] The applications judge dismissed the application to add AXA as a party to the tort case with costs to AXA. The trial judge also dismissed Mr. Tucker’s claim against AXA in the contract case, with costs to AXA, on the basis that the action had been commenced more than two years after the cause of action arose and was therefore outside the applicable limitation period. [7] Mr. Tucker filed the notice of application for leave to appeal the tort case and the notice of appeal from the contract case on October 3, 2012. The appeal book was filed on April 23, 2013. This was the last step taken in the appeal before the Deputy Registrar sent a notice to the parties stating that the appeal had been deemed abandoned pursuant to rule 57.20(4) on April 30, 2014. Counsel for Mr. Tucker received this notice on May 6, 2014 and filed the within interlocutory applications for reinstatement on May 7, 2014. Merits [8] At the hearing of the applications, the Court was asked to permit cross-examination on the affidavit filed by counsel for Mr. Tucker in support of his applications for reinstatement. [9] While I dealt with the request to cross-examine counsel for Mr. Tucker on his affidavit in support of reinstatement prior to hearing full argument on the merits of reinstatement, in these reasons I will deal with the merits first as AXA’s argument seeking cross-examination involves some of the factors to be considered on the merits of the applications for reinstatement. [10] Both parties agree that the approach to be taken by this Court with respect to applications for reinstatement is set out by Wells C.J.N. in Fahey v. Law Society of Newfoundland and Labrador, 2003 NLCA 8, 221 Nfld. & P.E.I.R. 79: [13] I agree with McEachern, C.J.B.C. that, ultimately, the decision to be made is “whether, considering the merits of the case and all other relevant matters, it is in the interest of justice that the appeal be reinstated or left Page: 4 [abandoned]”. That is, essentially, another way of saying where, in the opinion of the Court, refusal to do so would create an injustice. In either case, the decision can only be judicially arrived at as a result of consideration of factors such as: 1. Whether the appeal can be said to be frivolous or vexatious, in the sense that there is no arguable case; 2. Whether, prior to its deemed abandonment, the appellant had a bona fide intention to proceed with the appeal; 3. Whether there is a reasonable excuse for the failure to proceed with the appeal prior to the deemed abandonment; 4. Timeliness of the application for reinstatement after receipt of notice of deemed abandonment; and 5. The presence of any exceptional or special circumstances justifying or working against the fairness of reinstatement. I also agree with McEachern C.J.B.C. that such factors should not be considered to constitute, exclusively, “the test” for every case. However, the first four are clearly core considerations properly to be applied in virtually every case. The fifth category, borrowed from Cameron, J.A. in Fahey v. The Law Society of Newfoundland, supra, should be broad enough to include prejudice to a party, in the specific circumstances of the case, as well as any other special circumstance which justice would require should be considered in a particular case. (Emphasis in original.) [11] Both parties also agree that the broad issue to be determined is whether it is in the interests of justice to reinstate the appeal and that the onus rests on the applicant. [12] The standard to be met is relatively low unless reinstatement involves prejudice to another party or deliberate delaying tactics by the applicant (see Fahey at paragraph 14 and Performance Factory Inc. v. Atlantic Insurance Company Limited, 2012 NLCA 15, 318 Nfld. & P.E.I.R. 297 at paras. 6-10). 1. arguable case [13] AXA concedes that with respect to the tort case there is seemingly inconsistent jurisprudence from this Court and that it would be overstating the matter to describe this appeal as frivolous or vexatious or lacking an arguable case. Page: 5 [14] As to the contract case, AXA states that the decision of the applications judge “is in harmony with the statutory and regulatory provisions, and with appellate authority from Ontario”. AXA argues this appeal is frivolous and there is no arguable case. [15] Mr. Tucker argues that the grounds of appeal in both matters disclose an arguable case in that they are questions of law involving interpretation and application of rule 7.04 and rule 15.01 of the Rules, the standard automobile policy prescribed by the Automobile Insurance Act, RSNL 1990, c. A-22 and the Limitations Act, SNL, 1995, c. L-16.1. [16] In my view, as both matters arise from the same factual circumstances, and as it is conceded that there is an arguable case in one, it is best left to the panel of this Court that will hear both matters together to determine whether there is any overlap or possible inter-relationship between the respective merits of each appeal. Accordingly, I cannot conclude there is no arguable case in the contract case. 2. bona fide intention to appeal [17] AXA concedes that there was a bona fide intention to appeal. 3. reasonable excuse for failure to proceed [18] As to reasonable excuse for failure to proceed prior to deemed abandonment, AXA argues that no explanation for the delay has been given and that counsel for the appellant was reminded by AXA’s counsel about moving the appeal along. [19] In his affidavit in support of the application to reinstate, his factum, and his oral argument, counsel for Mr. Tucker states that the failure to proceed with completing and filing his factum for the appeal within 12 months of filing the appeal book “was the result of an omission by counsel for the applicant to recognize that the anniversary of the last step was approaching, and then had passed, on April 19, 2014”. Counsel further notes that the deemed abandonment resulted from administrative action rather than judicial determination and argues that since the threshold for reinstatement is low, it is met on this application. My conclusion on reasonable excuse is outlined later in these reasons. Page: 6 4. timeliness of the application for reinstatement [20] AXA concedes that there is no issue of timeliness of the reinstatement applications as they were brought on as soon as reasonably possible. 5. prejudice or other special or exceptional circumstances [21] AXA argues that other than a bald statement in the applicant counsel’s affidavit that there is no prejudice, there is no evidence of a lack of prejudice. [22] While it is accurate to state that no evidence of a lack of prejudice was put forward by Mr. Tucker, it is difficult to see what such evidence could be. Mr. Tucker had a year to perfect his appeal so nothing pertaining to possible prejudice that arose during that year would ever come to light or be considered if the appeal had been perfected up to the last day prior to deemed abandonment. That being so, the one time where there could be prejudice to AXA would be during the very brief period between deemed abandonment and the point at which this Court was seized of applications it was prepared to hear seeking reinstatement. [23] In any event, while the onus on the broad issue of whether it is in the interests of justice to reinstate is on the applicant, the onus is on the party resisting reinstatement to assert and show prejudice. The party seeking reinstatement need only assert that there is no prejudice. [24] Since such little time was involved, and since this Court, considering the Fahey factors, has on previous occasions granted reinstatement after deemed abandonment (see for example Performance Factory Inc.), I could not in this case have come to the conclusion that the abandonment should be upheld simply because the one-year time period had expired. [25] If, however, Mr. Tucker had not acted quickly to seek reinstatement, it might have been open to me to take a different view based on lack of a timely application to reinstate. That being said, and as there is clearly an arguable case with respect to the tort case, as was conceded by AXA through acknowledgment that there is seemingly inconsistent jurisprudence from this Court on the joinder issue, it is clearly in the interests of justice to allow reinstatement. The low threshold has been met in that this Court would not wish to deny the opportunity for a full merits argument and an opportunity to address the application of possibly inconsistent jurisprudence. This alone is Page: 7 a compelling reason to allow the merits of the matter to be heard by a full panel of this Court. The Application to Cross-Examine [26] AXA suggested that counsel should be permitted to cross-examine counsel for Mr. Tucker on his affidavit in support of the applications to reinstate. This request is founded on two bases arising from the Fahey factors: 1) “whether there is no reasonable excuse for failure to proceed with the appeal prior to the deemed abandonment” and 2) whether there are “any exceptional or special circumstances justifying or working against the fairness of reinstatement”, including prejudice to a party. [27] In determining whether to allow cross-examination, there is some judicial guidance as to what a court should consider: a. Whether the facts in the affidavit are in issue (see Royal Bank of Canada v. Jones, 2000 BCSC 520 at para. 42; Brown v. Garrison, (1967) 63 W.W.R. 248 (BCCA) at p. 250); b. Whether cross-examination is necessary to challenge the facts deposed to in the affidavit (see Beanland v. Beanland, (1997) 151 Nfld. & P.E.I.R. 51 (NLCA) at para. 35; Christian Brothers Institute Inc. v. John Doe (G.E.B. #36), 2004 NLCA 27, 237 Nfld. & P.E.I.R. 56 at para. 19; and /or c. Whether the affidavit is contentious or the statements deposed to are in dispute (R. v. Dean, 1996 CanLII 3102 (BCCA) at para. 9; Cadboro Invt. Ltd. v. Can. West Ins. Co. (1987), 19 B.C.L.R. (2d) 352 (BCCA) at para. 22; General Electric Company v. United States, 1980 ABCA 316 (CanLII) at para. 6. [28] The solicitor for Mr. Tucker took responsibility for the deemed abandonment in paragraph 5 of his affidavit where he states that the “failure to proceed to complete the drafting and filing of the factum … within 12 months of the filing of the appeal book … rests with me”. [29] In argument with respect to the request to cross-examine, counsel for AXA suggested that he ought to be permitted to cross-examine the applicant’s counsel on his affidavit in order to delve into the reasons for the year of inactivity on the appeal and to question the solicitor broadly to Page: 8 determine possible prejudice to AXA of which it would otherwise be unaware. [30] Any challenge of the affidavit relative to the failure to proceed with the appeal within 12 months could only go to whether or not the solicitor was truthful in stating that the fault in missing the filing period “rests with me”. There is nothing before the Court that suggests deliberate delay tactics (Fahey at paragraph 14) nor did counsel for AXA suggest that any such actions took place. I accept that the filing period was missed by oversight or inadvertence on the part of counsel for Mr. Tucker, and took that into consideration along with the other factors to be weighed in coming to my conclusion regarding the reinstatement applications. [31] As to the suggestion by counsel for AXA that there is no evidence of a lack of prejudice, this implies a reversal of onus. Accordingly, I did not consider this to be an appropriate matter to be dealt with by cross- examination of counsel on his affidavit but rather a matter to be put forward in argument on the merits relative to reinstatement. It was open to counsel for AXA in the course of his argument relative to all the factors, and in particular prejudice, to suggest that a very short delay between the end of the one-year period and the filing of the applications for reinstatement caused his client prejudice. Nothing specific was offered and I did not consider it incumbent on Mr. Tucker to establish that there was no prejudice. [32] Accordingly, I can see no basis for how cross-examination on the affidavit could have benefitted the Court in deciding the merits of the applications to reinstate. The affidavit covers only a bona fide intention to proceed, as was conceded by the parties, and a reasonable excuse, that the delay rests with counsel. [33] The application (which is affirmed in the affidavit by Mr. Tucker’s counsel to be true to the best of his knowledge, information and belief and was therefore adopted by him), deals with arguable case, bona fide intention, responsibility for the delay, prejudice, and merits. In the circumstances, there was nothing that could not be dealt with during argument on the merits of the reinstatement applications. Cross-examination was not called for. Nor did I wish to allow a potential fishing expedition, bordering on fresh evidence. [34] None of these considerations lead me to conclude that in the circumstances of these applications the unusual step of allowing cross- Page: 9 examination of a solicitor on his affidavit in support of an application to reinstate is justified. [35] As to costs, the applicant suggests that each party bear its own costs. While I have ruled to allow the applications, as it is in the interests of justice to do so, I could not conclude that it was appropriate that AXA be denied its costs. AXA was only before this Court because of applications necessary because of the inadvertence or oversight of opposing counsel. AXA has sought its costs on the applications and is entitled to party and party costs at column three of the scale. Conclusion [36] The application to cross-examine on the affidavit was not allowed. The applications for reinstatement of the notice of application for leave to appeal in the tort case and the notice of appeal in the contract case were allowed. _________________________ C. W. White J.A.