Can-Euro Investments Ltd. v. Nova Scotia (Utility and Review Board)

Can-Euro Investments Ltd. v. Nova Scotia (Utility and Review Board) Court Court of Appeal Date 2008-03-25 Citation 2008 NSCA 24 Docket CA 289704 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Can-Euro Investments Ltd. v. Nova Scotia (Utility and Review Board), 2008 NSCA 24 Date: 20080325 Docket: CA 289704 Registry: Halifax Between: Can-Euro Investments Limited Appellant v. Nova Scotia Utility and Review Board, Halifax Regional Municipality, Dexel Developments Limited Respondents Judge: The Honourable Justice Nancy Bateman Application Heard: March 20, 2008, in Halifax, Nova Scotia, in Chambers Held: Application dismissed. Counsel: William L. Mahody, for the appellant Karen Brown, for the respondent Halifax Regional Municipality Nancy G. Rubin, for the respondent (applicant) Dexel Developments Limited Decision: [1] On a Chambers application heard March 20, 2008, I declined to dismiss this appeal, with reasons to follow. These are my reasons. [2] On December 17, 2007, Can-Euro Investments Limited appealed from a November 19 order of the Nova Scotia Utility and Review Board (the “URB”). The URB had allowed Can-Euro’s appeal of a development agreement between Dexel Developments Limited and the Halifax Regional Municipality (“HRM”). The effect of the Board’s order was to approve the agreement with alterations to certain of its terms. [3] Can-Euro has not perfected its appeal. Dexel has applied on seven days’ notice to dismiss the appeal (Civil Procedure Rule 62.17(1)). [4] There is no question that Can-Euro has not complied with Civil Procedure Rule 62.14 which provides: 62.14.(1) Except in an interlocutory appeal or an appeal as to costs only or where otherwise ordered by a Judge, the appellant shall, within sixty (60) days from the filing of the notice of appeal, (a) file with the Registrar five (5) copies of the appeal book for the use of the Court; and (b) deliver to each respondent or his solicitor a copy of the appeal book. (Emphasis added) [5] Absent an application to the Court resulting in the setting of dates outside this period, Can-Euro was required to file its appeal book on or about February 15, 2008, which would be within sixty days of December 17, 2007. [6] Counsel for Can-Euro acknowledges that he failed to focus on the sixty day time limit. He was retained on the file on November 13, 2007, after the URB hearings were complete but before the final order was issued. The day after filing the Notice of Appeal he wrote to the former solicitor for Can-Euro requesting a complete copy of the file material. The file was not forthcoming and, inexplicably, he did not follow up until writing further letters on February 27 and March 6, 2008. [7] He did not order the recordings of the proceedings from the URB because it was his understanding that these were contained in the former solicitor’s file. The file materials were finally provided on March 7, 2008, which was a Friday. Counsel for Can-Euro was out of the office the following week and upon his return on Monday, March 17 learned of Dexel’s application to dismiss for want of perfection set to be heard on March 20. [8] A transcript of the URB proceedings was ordered on March 19, 2008 (Rule 62.02(4)) and is expected to be available by April 15. The Certificate respecting the preparation of the Appeal Book has now been filed (Rule 62.02(5)). [9] Dexel posits that, as Can-Euro is its competitor in the business of residential development and owns adjacent buildings, the delay in perfecting the appeal may be calculated to frustrate Dexel’s progress in moving forward with the development. Counsel for Can-Euro has assured the Court that such is not its intent. [10] Unfortunately, the delayed availability of the transcript coupled with counsels’ and the Court’s schedules means the appeal cannot now be heard until late September, 2008. Had the matter proceeded appropriately a hearing may have been held this spring. [11] Counsel for Dexel has cited, inter alia, Jollymore Estate v. Jollymore, 2001 NSCA 116, 196 N.S.R. (2d) 177 (C.A. in Chambers per Saunders, J.A.) which too involved an application to dismiss an appeal for want of perfection. While the appeal was not struck in that instance, Dexel’s counsel rightly points out that the result was attributable to the particularly sympathetic circumstances of that appellant and the financial jeopardy which she faced should the appeal be dismissed. Those factors are not present here. On the other hand, the delay in Jollymore was of several months and involved the failure to meet filing dates which had been set by this Court. [12] As Saunders, J.A. concludes in Jollymore, the objective is to do justice between the parties. It would appear that should Dexel successfully defend the appeal, it may have lost several months of progress in advancing its development due to Can-Euro’s lack of diligence. However, there is no specific evidence of prejudice to Dexel. On the other hand, should I dismiss the appeal, Can-Euro will lose its opportunity to have its appeal heard on the merits, which is a dramatic result. There is no suggestion that the appeal is frivolous or vexatious. I am satisfied that the interests of justice favour permitting the appeal to proceed. [13] Although the respondent did not succeed here, but for the appellant’s delay, this application would not have been necessary. I would therefore order that the appellant pay to Dexel costs of this application, in any event of the cause, which I would fix in the amount of $750 (all inclusive) as suggested by the respondent. This amount is payable forthwith. Bateman, J.A.