L.C. v. Family & Children's Services of Queens County

L.C. v. Family & Children's Services of Queens County Court Court of Appeal Date 1996-02-09 Citation 1996 NSCA 16 Docket CA 124678 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 124678 NOVA SCOTIA COURT OF APPEAL Cite as L.C. v. Family & Children’s Services of Queens County, 1996 NSCA 16 BETWEEN: L. C. ) Robert D. Chipman ) for the Appellant Applicant ) ) - and - ) ) Alan G. Ferrier ) for the Respondent FAMILY & CHILDREN'S SERVICES ) OF QUEENS COUNTY ) ) Respondent ) Application Heard: ) February 8, 1996 ) ) ) Decision Delivered: ) February 9, 1996 ) Editorial Notice Identifying information has been removed from this electronic version of the judgment. BEFORE THE HONOURABLE JUSTICE NANCY BATEMAN IN CHAMBERS Revised Decision : The text of this decision has been corrected according to the erratum attached to the end of this decision. BATEMAN, J.A.: This is an application by the intended appellant, L. C., to extend the time for filing a Notice of Appeal. She seeks to appeal the June 5, 1995 decision of a Family Court judge made pursuant to the Children and Family Services Act, S.N.S. 1990, c. 5. On that date the trial judge, after a Disposition Hearing, ordered that the three children of the intended appellant be in the permanent care and custody of the agency, pursuant to s. 42(1)(f) of the Act. The intended appellant, through her then counsel, filed a Notice of Appeal on June 22, 1995, with the Supreme Court. On July 27, her current lawyer appeared on her behalf in the Supreme Court and obtained a date for the hearing of the appeal. The Court directed that a pre-hearing brief be filed by the appellant by December 15, 1995 and by the respondent by January 25, 1996. On January 15, 1996 counsel for the appellant was contacted by counsel for the respondent and advised that the appeal should have been commenced in the Court of Appeal. Counsel for the intended appellant then made application to this Court to extend the time for filing the Notice of Appeal. Apparently neither counsel had turned their minds to the requirements of s. 49 of the Children and Family Services Act which provides: (1) An order of the court pursuant to any of Sections 32 to 48 may be appealed by a party to the Appeal Division of the Supreme Court by filing a notice of appeal with the Registrar of the Appeal Division within thirty days of the order. (4) Where a notice of appeal is filed pursuant to this Section, the Minister is responsible for the timely preparation of the transcript and the appeal shall be heard by the Appeal Division of the Supreme Court within ninety days of the filing of the notice of appeal. The intended appellant has not complied with s. 49(1) of the Act requiring the filing of the Notice of Appeal within 30 days of the Order. The intended appellant submits that I have the authority to extend the time for filing the Notice of Appeal. Counsel cites D.G. v. Family and Children's Services of Kings County et al. (1994), 133 N.S.R. (2d) 303 (C.A.). Roscoe, J.A., sitting in Chambers, wrote at p 306: As I mentioned during the argument, I believe that the combined effect of s. 50 of the Judicature Act and Rule 62.31 (7)(e) [now 62.31(8)(e)] provide, in limited cases, for extensions of the time for the hearing of appeals but as I also indicated there is a test that has to be met and the test consists of three parts: 1) that there was a continuing intention to appeal; 2) that there is an arguable ground of appeal; and 3) that there is a reasonable excuse for the delay in advancing the appeal. Section 50 of the Judicature Act states: Where an enactment authorizes an appeal to the Supreme Court or to the Court of Appeal and prescribes the time period during which (a) the appeal is to be commenced (b) an application for leave to appeal is to be made (c) a notice is to be given; or (d) any other procedural step preliminary to the appeal is to be taken, the judges of the Court may make rules respecting extension of the time period, notwithstanding that the time period expired. (emphasis added) Civil Procedure Rule 62.31(8)(e), provides: A judge may order that 'any time period prescribed by this Rule be extended or abridged before or after the expiration thereof'. (emphasis added) I respectfully disagree with Justice Roscoe that the combination of Rule 62.31(8)(e) and s. 50 of the Judicature Act empowers this Court to extend the statutorily prescribed appeal period. Rule 62.31(8)(e) permits extension of any time period, but only if it is a time period "prescribed by" Rule 62. The time for filing the Notice of Appeal here is prescribed by the Children and Family Services Act, not Rule 62. Civil Procedure Rule 62.34 states, however: (1) For the purposes of Section 50 of the Judicature Act, a Judge of the court having power to hear an appeal may extend or abridge the time periods pursuant to that section either before or after the expiration of the period. (2) The application shall be made upon two clear days notice to the parties to the proceedings and be supported by an affidavit. (3) The judge may extend or abridge the time on such terms as he thinks just. This Rule, in combination with s. 50 of the Judicature Act, enables this Court to extend the time for filing the notice of appeal. I realize that this result seems to be inconsistent with the decision of this Court in Re Chafe (1974), 10 N.S.R. (2d) 261 (N.S.S.C.A.D.). In that case the Court considered its power to extend the time for seeking leave to appeal under the Workmen's Compensation Act. The Court held that, as the time within which leave was to be heard was statutorily prescribed, it could not extend the time. That case, however, was distinguished in Cape Breton Development Corporation v. Workers' Compensation Appeal Board (Nova Scotia) and Ernest Butts, (1993), 124 N.S.R. (2d) 43 (N.S.C.A.), where it was held that the Court could extend the filing period. Counsel for the respondent does not object to the extension of time for filing the Notice of Appeal on the basis that the Notice is filed after the 30 days. He takes the position, however, that the extension should not be granted because the intended appellant has not demonstrated an 'arguable ground' for appeal, within the test articulated by Roscoe, J. A., above. The three part test for extension of time is more fully canvassed in Maritime Co-op. Services Ltd. v. Maritime Processing Co. (1979), 32 N.S.R. (2d) 71 (N.S.S.C.A.D.). In Tibbetts v. Tibbetts (1992), 112 N.S.R. (2d) 174 (N.S.S.C.A.D.) Hallett, J. A., in considering an application to extend the time where the solicitor had, by mistake, missed the time period, writing for the Court, extensively reviewed the law in this area. He rejects the three part test as applicable in all circumstances. He writes at p. 175: The basic rule for granting an extension of time to appeal has been stated by Cooper J.A. speaking for the court in Scotia Chevrolet Oldsmobile Ltd. v. Whynot, (1970), 1 N.S.R. 1041. Mr. Justice Cooper stated at p. 1054: The principles upon which an extension should be granted or refused were considered in In re Manchester Economic Building Society (1883), 24 Ch. D. 488, and in Kettle v. Jack, [1947] O.W.N. 267, Hogg, J.A. sets out at pp. 268‑269 the basic rule as derived from In re Manchester: Dealing with the application to extend the time for appealing, it has been held that the basic rule is that the Court, exercising its judicial discretion, should give special leave if justice requires that leave should be given: Economic Building Society (1883), 24 Ch. D. 488, per Brett M.R., referred to in Smith v. Hunt (1902), 5 O.L.R. 97. It has also been held that no precise rule can be laid down as to the exact circumstances sufficient to call for the exercise of the discretion of the Court, and therefore that, even in the case of the time for taking the step having been allowed to expire because of a mistake, there is no hard and fast rule that an extension will not be given. (emphasis added) And Hallett, J. A. writes at p. 177: There is nothing wrong with this three part test but it cannot be considered the only test for determining whether time for bringing an appeal should be extended. The basic rule of this court is as set out by Mr. Justice Cooper in the passage I have quoted from Scotia Chevrolet Oldsmobile Ltd. v. Whynot, supra. That rule is much more flexible. The simple question the court must ask on such an application is whether justice requires that the application be granted. There is no precise rule. The circumstances in each case must be considered so that justice can be done. A review of the older cases which Mr. Justice Cooper referred to in Scotia Chevrolet Oldsmobile Ltd. v. Whynot and which Mr. Justice Coffin reviewed in Blundon v. Storm make it abundantly clear that the courts have consistently stated, for over 100 years, that this type of application cannot be bound up by rigid guidelines. A further review of the case law, particular to when the appeal period has been missed due to a solicitor's mistake, is found in Blundon v. Storm (1970), 1 N.S.R. (2d) 621 (N.S.S.C.A.D.). Hallett, J. A. in Tibbetts, supra, cites, with approval, the following passage from Coffin, J. A., writing for the Court, at p. 635: In my view, however, this is a case where the interests of justice require that leave to extend time be given. There was a bona fide error on the part of the solicitor for the plaintiffs which he readily admits. The case is one of great importance involving what may be very substantial sums and the interests of the defendant can be well protected by conditions attached to the granting of leave. I would therefore grant leave to extend the time for the service of the notice of appeal. There is no question that the intended appellant had a continuing intention to appeal and that she has a reasonable excuse for failing to file the Notice of Appeal, in this Court, within the required period. The case is an important one in that it involves the lives of three children and the termination of the intended appellant's parental rights. I have examined the grounds of appeal, but do not have sufficient information before me to assess their possible merit. In these circumstances, keeping in mind the test articulated in Tibbetts, supra, it is not necessary to decide whether it is at least arguable that the judgement is wrong. I am mindful that the Children and Family Services Act prescribes tight time frames within which appeals on such matters are to be concluded. Time runs against the interests of these very young children, who have already been in care for an extended period of time. I am satisfied, however, that in these circumstances the interests of justice require that the appeal period be extended. I therefore extend the time for filing the Notice of Appeal to February 16,1996. Bateman, J. A. E R R A T U Mp. 1 - third paragraph - should read - The Court directed that a pre-hearing brief be filed by the appellant by December 15, 1995 and by the respondent by January 25, 1996.