An Jager v. Jager

An Jager v. Jager Court Court of Appeal Date 2018-07-23 Citation 2018 NSCA 66 Docket CA 472720 Judge/Registrar/Adjudicator Bourgeois, Cindy A. (Honourable Justice) (CA) Document Type Decision Relations See also - An Jager v. Jager - 2019 NSCA 9 - 2019-01-31 - Decision Decision Content Nova Scotia Court of Appeal Citation: An Jager v. Jager, 2018 NSCA 66 Date: 20180723 Docket: CA 472720 Registry: Halifax Between: Julie Deborah An Jager Applicant v. Wiebo Kevin Jager Respondent Judge: The Honourable Justice Cindy A. Bourgeois Motion Heard: July 19, 2018 in Halifax, Nova Scotia in Chambers Held: Motion to extend time to file Notice of Appeal granted Counsel: Julie Deborah An Jager, applicant in person Jennifer K. Reid, for the respondent Decision: Introduction [1] On July 19, 2018, I heard a motion brought by the applicant, Ms. An Jager, seeking an order extending the time to file a Notice of Appeal. In support of the motion was an affidavit sworn by Ms. An Jager. The motion is opposed by Mr. Jager, who also provided affidavit evidence. Background [2] Ms. An Jager wants to appeal a Parenting and Support Order issued by the Honourable Justice Jesudason on December 19, 2017. It followed an oral decision rendered on November 24, 2017. [3] What is unusual in this matter is that Ms. An Jager has already filed a Notice of Appeal. It was filed by her on January 29, 2018, and accepted by court administration. In fact, Ms. An Jager took other steps in advancing her appeal, including filing a motion for date and directions to be heard June 7, 2018, and a Certificate of Readiness. It would appear that at some point following the filing of the motion for date and directions it was discovered that Ms. An Jager’s Notice of Appeal had been filed outside the timeframe outlined in the Nova Scotia Civil Procedure Rules. [4] On June 7, 2018, Ms. An Jager was advised her appeal had been filed out of time and, as such, she would be required to bring a motion to extend the time for filing. Ms. An Jager complied with that direction. She asks that she be permitted to file a Notice of Appeal identical to that filed in January. Analysis [5] There is no question that a judge of this Court is given authority to extend the time to appeal by virtue of Civil Procedure Rule 90.37(12)(h). There is also no dispute as to what ought to guide a chambers judge in exercising that discretion. This was nicely set out by Bryson J.A. in Raymond v. Brauer, 2014 NSCA 43 as follows: [10] Justice Bateman described the usual three-part test when exercising discretion to extend time in Bellefontaine v. Schneiderman, 2006 NSCA 96: [3] A three-part test is generally applied by this Court on an application to extend the time for filing a notice of appeal, requiring that the applicant demonstrate (Jollymore Estate Re (2001), 196 N.S.R. (2d) 177 (C.A. in Chambers) at para. 22): (1) the applicant had a bona fide intention to appeal when the right to appeal existed; (2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and (3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of which being that there is a strong case for error at trial and real grounds justifying appellate interference. [11] The three-part test described in Schneiderman is not conclusive. Residuary discretion remains in the Court to extend time where it would be just to do so: [5] Although courts most commonly allude to the three-part test in Jollymore, supra, the ultimate question is whether justice requires that an extension be granted: Farrell v. Casavant, 2010 NSCA 71, at para. 17 and Cummings v. Nova Scotia (Community Services), 2011 NSCA 2, at para. 19. Accordingly, the three-part Jollymore test is an appropriate guide for the exercise of the court’s discretion but it is not an exhaustive description of that discretion. (Brooks v. Soto, 2013 NSCA 7) [6] Counsel for Mr. Jager concedes that Ms. An Jager had a bona fide intention to appeal and has a reasonable excuse given the unusual circumstances surrounding the filing of her original ill-fated Notice of Appeal. The real contest is whether the Notice of Appeal she now seeks to file discloses a “strong case for error at trial and real grounds justifying appellate intervention.” [7] I would note at this time that although Mr. Jager was served with the original Notice of Appeal shortly after it was filed on January 29th, he did not raise any concerns about the adequacy of the grounds of appeal until recently. His counsel argues that the lengthy grounds do not disclose “a strong case for error at trial” and, at most, are submissions seeking to challenge the supportable factual findings of the trial judge. Counsel further points to the fulsome oral decision of the trial judge, now transcribed and before me, as supporting Mr. Jager’s assertion that the decision is entirely reasonable. [8] I have carefully reviewed and considered the Notice of Appeal Ms. An Jager seeks to file. It lacks the preciseness the Court expects of a Notice drafted by counsel. It is, however, not atypical of many Notices filed by self-represented litigants. I agree with counsel that it appears to contain assertions of facts and allegations that are likely not within the jurisdiction of this Court to address. [9] In my view, Ms. An Jager has not made out a “strong case for error at trial”. However, I am mindful that the decision under appeal followed a number of pre-hearing appearances conducted over several days between October 3, 2016 and June 9, 2017. It would be difficult for a party in these circumstances to show a “strong case” in the absence of a transcript. [10] I am satisfied that Ms. An Jager’s proposed Notice of Appeal does, amidst the questionable opinions and factual assertions, identify alleged errors made by the trial judge. For example: • It is clear Ms. An Jager is asserting the trial judge failed to consider the best interests of the children; rather, focusing on the desires of Mr. Jager. • Ms. An Jager says she was not privy to all attendances and communications between Mr. Jager and the court and was prevented from calling evidence central to the issues in dispute, thus raising concerns of procedural fairness and natural justice. • Ms. An Jager questions the trial judge’s admission and acceptance of expert evidence, thus challenging the proper exercise of his gatekeeping function. • Ms. An Jager asserts the trial judge ignored relevant evidence. [11] In setting out the above identifiable issues, it is not my intention to confirm or reject any grounds of appeal. A panel of this Court will, upon fulsome review of the record, be tasked with identifying the arguable issues raised on appeal. What has been filed, however, is sufficient to satisfy me that Ms. An Jager should have the opportunity to advance her appeal. Conclusion [12] The motion is granted. In these circumstances, it is not necessary for Ms. An Jager to refile her Notice of Appeal. The Notice of Appeal already in the Court file will be considered to be filed effective July 23, 2018. In the circumstances, there will be no order for costs. Bourgeois J.A.