Humby v. Newfoundland and Labrador Housing Corporation

Date: 20130114 Docket: 10/46 Citation: Humby v. Newfoundland and Labrador Housing Corporation, 2013 NLCA 4 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: ELI HUMBY FIRST APPELLANT AND: CENTRAL SPRINGS LIMITED SECOND APPELLANT AND: NEWFOUNDLAND AND LABRADOR HOUSING CORPORATION RESPONDENT Coram: Green C.J.N.L., Rowe and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 2007 01T 4090 Application Heard: November 20, 2012 Judgment on Application Rendered: January 14, 2013 Reasons for Judgment by Green C.J.N.L. Concurred in by Rowe and Hoegg JJ.A. Counsel for First Appellant: Robert Anstey Counsel for Second Appellant: Robert Anstey Counsel for the Respondent: David Hurley Q.C. Page: 2 Green C.J.N.L.: [1] Following the hearing of this appeal and the reserving by the Court of its decision, the respondent, the Newfoundland and Labrador Housing Corporation (“NLHC”), applied to strike out the appeal on the grounds that the appellants, Humby and Central Springs Limited (“Central”) had failed to disclose, prior to trial, three documents which NLHC says related to a matter in question in the proceeding, thereby requiring their disclosure pursuant to rule 32 of the Rules of the Supreme Court, 1986. [2] This proceeding has been wending its way through the courts for over five years (involving numerous pre-trial applications; contested interim costs taxations; a summary trial; an appeal against the summary trial disposition, which resulted in an order for a new trial; a subsequent “full” trial; and now the current appeal. It has been characterized by an unseemly degree of animosity and rancour which does no credit to the parties or their counsel. The current application involves allegations that the counsel for the appellants exhibited “serious”, “egregious” and “willful misconduct” and “wrongdoing” in an “improper” and “unethical” manner in not disclosing or “concealing” certain documents. These allegations have been responded to by counter-allegations of unprofessional behaviour of counsel for NLHC at previous times in the litigation process. Background [3] For present purposes, it is sufficient to state, by way of background, that two of the main issues on the current appeal concern: (i) whether the trial judge erred in concluding that a “Butler” type building erected on certain property leased by NLHC to the respondents in Gander, NL formed part of the realty and could not be removed when the lease was terminated ; and (ii) whether the trial judge erred in determining the amount of damages suffered by the appellants as a result of false representations made on behalf of NLHC to a third party (RCMP), as a result of which, according to the trial judge, the RCMP failed to renew a lease it had with the respondent Humby in relation to a separate property in another community, (Benton, NL). Page: 3 [4] In respect of the second issue, NLHC did not appeal the finding that the lease of the Benton property was not renewed nor that the non-renewal resulted from false representations made on behalf of NLHC; thus the issue on appeal with respect to this ground was limited to whether the quantum of damages awarded by the trial judge should be varied. The Documents [5] The three documents which NLHC alleges the appellants failed to disclose comprise correspondence passing between the solicitor for the RCMP and the solicitor for the appellants. In two of them, authored by the solicitor for the RCMP, it is asserted that the reference in the RCMP lease to the property at Benton was a “typographical error”. The key passages are as follows: (i) a letter, dated December 20, 2006, from the solicitor for the appellants to the solicitor for the RCMP in which the solicitor for the appellants states: … in reviewing the Lease between our client and your client, the lease was for property in Benton, NL. However, it was the RCMP who wished to move to Gander and were occupying premises in Gander. (ii) a letter, dated January 10, 2007, from the solicitor for the RCMP to the solicitor for the appellants, which asserts: Your letter of December 20, 2006 makes reference to the property at Benton. Please note that any reference to the property at Benton was a typographical error. My client has not occupied the property at Benton since 2001. Mr. Humby is aware that the property at Benton did not meet the operational needs of my client. (iii) a letter, dated March 6, 2007, from the solicitor for the RCMP to the solicitor for the appellants, stating: As I have indicated previously any reference to Benton, NL in the lease documents or correspondence post 1999 are in typographical error. Your client is aware that, the RCMP have not occupied the Benton storage space since November 1999. Page: 4 As we discussed, the RCMP relocated to the space at Gander from the space [at] Benton in through [sic] agreement with Mr. Humby. In fact your client offered the Gander location to the RCMP as a viable option for storage when the RCMP indicated that the Benton location was not meeting the needs of my client. There are documentation and witness testimony available in support of this fact. (Underlining added) [6] In other correspondence – which did form part of the trial record – counsel for NLHC asserted to counsel for the RCMP that the RCMP was in possession of the Gander property pursuant to a lease with the appellant Central and counsel for the appellants equally asserted to counsel for NLHC that the lease related to the Benton property, not Gander. [7] For the purposes of this application, two other documents – which also formed part of the trial record – are relevant: (a) a letter, dated January 10, 2007 from the solicitor for the RCMP to the solicitor for NLHC which enclosed a copy of a lease between Humby and RCMP dated April 18, 2005, which referred to the location of the property being rented as “Benton, NL”; and (b) a letter dated January 11, 2008 from the solicitor for the RCMP to the solicitor for NLHC in which she states: Any reference to Benton, NL in the lease documents or correspondence post 1999 is a typographical error. The lease should refer to the space at Gander, NL. The Trial [8] At trial, NLHC claimed against Humby and Central for the continuation of a previously-granted interim injunction restraining them from removing the Butler building which had been erected on land which NLHC had previously leased to Central. NLHC also claimed damages for destruction of the building and for property remediation. It further alleged that Central or Humby had, with authorization, purported to lease the Page: 5 property to the RCMP and that NLHC was entitled to the rental payments paid and payable by the RCMP. [9] Humby and Central’s defence, in addition to disputing that the leasehold interest between them and NLHC had been terminated and that they were not, or should not be, permitted to remove the building erected thereon, denied that the Gander property had been leased by them to the RCMP but asserted that there was some usage of the Gander property permitted by Humby, which NLHC knew about. [10] Humby and Central counterclaimed, alleging, amongst other things, that NLHC wrongfully interfered with their business relationship (i.e. the separate lease dated April 18, 2005) with the RCMP in wrongfully claiming entitlement to the rental payments under that lease, causing the RCMP to withhold those payments from them and depriving them of future rental income. Although the reference to the April 18, 2005 lease did not expressly state in the defence or counterclaim that the property covered by the lease was at Benton, not Gander, previous correspondence between the solicitor for Humby and Central and the solicitor for NLHC, including a letter dated February 7, 2007, made it clear that Humby and Central were asserting that NLHC had, by its actions, caused the Benton lease to be “broken”: 5. The lease was between Eli Humby and the R.C.M.P. Further this lease was for property at Benton, NL. 6. Your letter of July 26, 2006 caused a lease between Eli Humby and the R.C.M.P. on property not owned by NLHC to be broken [11] At trial, Humby testified that the property dealt with in the lease was the Benton property and that there never was a lease to the RCMP of the Gander property. Humby did state, however, that for the convenience of the RCMP, he allowed them, on an informal basis and without rent, to store some property at the Gander location as an overflow. Sgt. Jackman of the RCMP also testified that the RCMP did not have a lease of the Gander property but that it stored some extra items on that property with Humby’s permission by way of a “convenience agreement” and the Benton lease continued to exist. Although Sgt. Jackman was not present in Gander for part of the relevant time he testified that he verified the situation with the RCMP property manager. This hearsay statement was not objected to. Page: 6 [12] Sgt. Jackman was cross-examined by counsel for NLHC with respect to the assertion by the solicitor for the RCMP in the letter dated January 11, 2008 that the reference to the Benton property in the lease was a “typographical error” but he maintained his position, stating “I don’t know where [the solicitor for the RCMP] got that to …”. [13] It is also relevant that NLHC did not examine for discovery prior to trial either Humby or any representative of the RCMP. [14] With respect to the issue relating to the appellants’ allegations about the actions of NLHC leading to interference with the continuation of the lease between the RCMP and Humby concerning the Benton property, the trial judge made the following findings: [57] It is clear that counsel for NLHC did write to Justice Canada [solicitors for the RCMP], alleging the lease to the RCMP by Mr. Humby was fraudulent, mistakenly believing the rent was being received for the building … [in Gander]. There were a series of letters exchanged with Justice Canada and counsel for NLHC. These serve to extend confusion of the location of the property rented to the RCMP to Justice Canada and give the clear position that NLHC considered Mr. Humby to be engaged in unlawful activity. The earliest correspondence I can see that makes it clear to [NLHC] that the property was at Benton was [counsel for the appellants]’s to [counsel for NLHC] dated February 2, 2007 [sic; such a letter does not exist in the appeal record; it is likely the reference is to the letter quoted above, dated February 7, 2007]. … [58] The evidence is that NLHC was in error in representing to Justice Canada that the RCMP were renting the building [at Gander] from Mr. Humby. NLHC apparently initially misunderstood. Nevertheless, the error and the misrepresentations were those of NLHC. When the error was brought to its attention, it continued in its position. It had consequences in requiring Justice Canada to investigate, withhold funds and conclude that NLHC had not submitted an adequate basis to allow the continued holding of funds from Mr. Humby. In its interest to attempt to have these funds withheld, false misrepresentations of Mr. Humby’s actions as being illegal and fraudulent were made by NLHC. I conclude, without evidence to the contrary, that the non-renewal of the existing ten year historical relationship was a result of these actions by NLHC. Nature of the Current Application [15] Counsel for NLHC asserts that the documents were materials “relating to” a “matter in question in the proceeding” within rule 32.01(1). As such, they should have been disclosed prior to trial. Counsel says that these documents establish that the lease of the property in Benton, the non- Page: 7 renewal of which formed the basis of the trial judge’s award of damages in favour of the appellants, was non-existent and that the RCMP lease in fact related to the property at Gander which gave NLHC every right to terminate it and demand payment of the RCMP’s rental payments, as sub-tenant. Counsel submits that these facts accordingly undermine the award of damages. At the very least, they undermined the credibility of Humby and could have been used with effect in cross-examining him on his assertion that the lease in question related to Benton. [16] Counsel for NLHC asserts that, assuming the Court concludes that the appellants had failed to comply with a requirement to disclose the documents, the proper remedy is for the Court to strike out the whole appeal. He asserts that the conduct of the appellants in this regard is so egregious that they should not be allowed to have their appeal heard or determined. The evidence of the appellants, even on the other issues, is so “tainted” that the Court should not countenance the appellants’ appeal on the basis of such an unreliable and contaminated record. Dismissing an Appeal After the Hearing for Reasons Other than the Merits [17] Counsel could provide no authority that supported the proposition that the Court, post-appeal hearing, could dismiss an appeal without considering the merits, solely on the basis that one of the parties or their counsel failed to comply, prior to trial, with the rules of court requiring disclosure of documents. [18] In principle, it might be possible to countenance such a result, in the most extreme and egregious of circumstances amounting to an abuse of process, in exercise of the Court’s inherent jurisdiction to control its own process. But, the circumstance would be rare and most extraordinary. Even if counsel for NLHC is correct that the appellants deliberately withheld the documents from disclosure and counsel acted unprofessionally, I cannot conclude that that would be sufficient, in the circumstances of this case, for the Court to dismiss the appeal without considering the merits of any of the issues, even those that were not affected by the undisclosed documents. [19] In any event, I would not be prepared to conclude on the record presented on this application that counsel for the appellants deliberately withheld the documents from disclosure. Counsel denied that this was so and pointed out that the documents were exchanged in relation to a separate Page: 8 proceeding in the Federal Court involving his clients and the RCMP. He says that the documents in relation to that proceeding and the current one were stored by him in separate “tracks” and it did not occur to him, when preparing the disclosure package for the current case that he should include documents generated in relation to the other proceeding. He also pointed out that his office (he is a sole practitioner) suffered a computer crash around the relevant disclosure time and that he lost a lot of documents. He also has since closed his practice and disposed of files that now makes it difficult for him to determine whether the documents in question were even available to him for disclosure at the relevant time. [20] While I do not accept that the mere fact that documents were generated in relation to another related court proceeding means that there was no obligation to disclose them in the current matter if they nevertheless “related to” a matter in question in the current proceeding, counsel’s error in this regard does not indicate a deliberate attempt at suppressing the documents and this is especially so where his file system may have been compromised by a computer crash. [21] Another possible basis for the Court acting could be rule 32.10 which provides: 32.10 If any party who is required by Rule 32, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails, without reasonable cause or excuse, to comply with any provision of Rule 32, or with that order, as the case may be, or fails to make reasonable efforts to give full discovery, then the Court may make such order as it deems just including, in particular, an order that the proceeding be dismissed or, as the case may be, an order that the defence be struck out and judgment entered accordingly. [22] This rule does not fit the current situation. While it allows the court to make an order that “the proceeding be dismissed or, as the case may be, an order that the defence be struck out and judgment entered accordingly”, it appears to relate to an order made pre-trial or during trial and not at the appeal stage. Furthermore, it is designed to provide a means to encourage compliance with the disclosure obligation, i.e. a means of enforcement, not as a punishment for non-compliance. At the appeal stage, the striking out of the “proceeding”, i.e. the appeal, for something that was not done prior to trial can only be said to amount to punishment for contumacious behavior. Page: 9 [23] The best NLHC could hope for in the current situation would be to obtain a new trial with respect to any issues that may have been affected by the non-disclosure. To do that, however, would require the Court, as a preliminary matter: (i) to grant leave, even at this late stage, for NLHC to cross-appeal against the trial judge’s finding that the non-renewal of the lease at Benton justified an award of damages (it will be remembered that this finding is presently not being challenged on the appeal as presently constituted); and (ii) to make an order for the reception, on the appeal, of the three documents as fresh evidence on that issue. [24] It is necessary, therefore, to consider whether NLHC ought to be allowed to cross-appeal and whether the documents should be received as fresh evidence on the appeal. I will consider the second question first, as my decision on that matter determines the application. Reception of Fresh Evidence? [25] The principles governing the reception of evidence in civil cases are essentially the same as for criminal cases: (i) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (ii) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (iii) the evidence must be credible in the sense that it is reasonably capable of belief; and (iv) it must be such that if believed it could reasonably, when taken with the evidence adduced at trial, be expected to have affected the result. See Wiseman’s Sales & Services Ltd. v. Atlantic Insurance Co., 2007 NLCA 15, 264 Nfld. & P.E.I.R. 86 at para. 28; Harvey v. Harte (1999), 176 Nfld. & P.E.I.R. 279 (Nfld. C.A.) at paras. 16-17. [26] Unquestionably, the documents in question bear on an issue at trial. The assertion that the actions of NLHC caused a lease of Humby’s property in Benton not to be renewed, thereby causing damages to Humby based on wrongful interference with economic relations, was identified in the pleadings and in the appellants’ pre-trial brief. The issue was addressed in Page: 10 the questioning and cross-examination of witnesses, particularly Humby and Sgt. Jackman of the RCMP. The issue was referred to in closing argument and the trial judge dealt with it in his judgment. The documents raise the question as to whether in fact the RCMP lease at Benton was still in existence or had, instead, been transferred to the Gander property. [27] Counsel for the appellants submitted that they were under no obligation to disclose these documents because they were not relevant, inasmuch as they only contained the opinions of solicitors. I reject this argument. They unquestionably “related” to a matter in question in the proceeding. They were not written “without prejudice”. Whether they would have been admissible at trial or could only have been used in cross- examination does not matter. They fall within the broad scope of documents that must be disclosed under rule 32, as discussed in previous cases in this Court and the Trial Division: Carter v. Municipal Construction Ltd. (2001), 204 Nfld. & P.E.I.R. 112 (Nfld.T.D.); affirmed 2001 NFCA 58, 206 Nfld. & P.E.I.R. 181. [28] It remains to be considered, however, whether the documents could, with reasonable diligence, have been discovered prior to trial and whether, if believed, they could, when taken with the other evidence adduced at trial, reasonably be expected to have affected the result of the trial. [29] Counsel for NLHC could not have been taken by surprise by this issue. It was squarely before the court, evidence was called on it and counsel for NLHC specifically cross-examined the RCMP representative and Humby, suggesting that the lease in question did not relate to Benton. There were other documents on the record which also dealt with the confusion as to whether the lease concerned Benton or Gander, including one authored by the same RCMP counsel who wrote two of the letters in question on this application, which also asserted that the reference to Benton in the lease documents was a typographical error. Counsel for NLHC specifically used that document to cross-examine Sgt. Jackman and to attack his assertion that the location of the property in question was, correctly, Benton at all material times. Of interest is Sgt. Jackman’s response to the cross-examination: he maintained his position and simply questioned who the solicitor was and how she would, in any event, have any direct knowledge of the situation. [30] It is true that the letters in question contain the assertions of error with respect to the Benton property in more detail than what was on the record, and in one case make reference to other documents that could possibly have Page: 11 backed up the assertion. It is possible that knowing of this, counsel for NLHC might have sought to discover representatives of the RCMP on the point or sought production of documents from them under rule 32.07. However, even though the issue was already known and other documents asserted the “typographical error”, counsel for NLHC had not sought to discover anyone from the RCMP or to gain access to their files. [31] I am satisfied that the documents in question could, with reasonable diligence, have been discovered prior to trial and in any event they are not of such a nature that had they been available, they would have had a material impact on the trial. They were simply the assertions of solicitors, not of people with direct knowledge of the situation. On the other hand, the trial judge had before him the direct evidence of Humby and a representative of the RCMP who both asserted in no uncertain terms that the lease related to Benton. This was not seriously shaken on cross-examination. It is true that Sgt. Jackman’s direct knowledge was limited to an earlier period, but when challenged he said he verified his information for the later period with the RCMP property manager for the Atlantic region. While this was technically hearsay, no one objected to this evidence at the trial. It is part of the record. [32] It can hardly be said, therefore, as was submitted by counsel for NLHC, that the documents in question were virtually “conclusive” of the issue as to which property was the subject of the lease. The issue was engaged on the pleadings and by virtue of the correspondence passing between counsel prior to trial. Even if the documents would have been admissible (and that is by no means certain) it could not be said that, when taken with the other evidence adduced at trial, they could reasonably be expected to have affected the result. [33] While it is true that the assertion by counsel for the appellants in the letter dated December 20, 2006 might be characterized as an admission against interest of the appellants as their agent, it in itself is ambiguous. While asserting that the RCMP wanted to move to Gander and were occupying premises in Gander, he nevertheless asserts that the lease related to Benton. The reference to the RCMP occupying premises in Gander is consistent with the testimony at trial that the RCMP were simply allowed, for convenience, to use the Gander building for overflow storage. It cannot be said therefore that this letter could have materially affected the result either. Page: 12 [34] The documents should not therefore be admitted as fresh evidence on the appeal. Leave to Cross-Appeal? [35] It also follows that leave should not be granted to NLHC to cross- appeal the conclusions of the trial judge respecting the subject-matter of the RCMP lease. [36] A notice of cross appeal must be filed within 30 days of service of the notice of appeal: rule 57.09(1). In this case, there never was a cross-appeal filed. Rule 57.05, which deals with extensions of time for filing notices of appeal, does not apply to cross appeals, because its application is by its terms limited to non-compliance with rules 57.02 , 57.03 and 57.04, not 57.09. [37] An extension of time to file a cross appeal must therefore be dealt with under rule 57.31(5)(b) which provides that the Court may order that “any time prescribed by this rule may be extended or abridged before or after the expiration thereof”. Nevertheless, it is appropriate to apply the same considerations as those that govern decisions to extend time to file a notice of appeal. The factors which the Court would normally consider have been identified in Law Society (Newfoundland) v. Fahey 2000 NFCA 19 and subsequent cases: (i) whether the appellant had a bona fide intention to appeal within the appeal period; (ii) whether there is a reasonable excuse for failure to comply with the rule; (iii) the potential merits of the appeal; and (iv) the presence of exceptional or special circumstances justifying or working against fairness of an extension. [38] As to the first factor, there is nothing to indicate that NLHC had any intention to appeal the finding of the trial judge respecting the claim for interference with the appellants’ economic relations with the RCMP. It filed no appeal or cross appeal of either the findings that the lease in fact related to the Benton property or of the quantum of damages awarded. The only issue raised on appeal by the appellants was whether the award should have been greater than the trial judge awarded. [39] As to the second factor, it follows from my analysis relating to whether NLHC could with reasonable diligence have adduced the evidence at trial that HLHC does not have a reasonable excuse for failure to file a cross appeal. As to the third factor, considering the nature of the documents Page: 13 (authored by solicitors with little direct knowledge), and my conclusion above that they would not have had a material effect on the outcome of the trial, the merits of any cross appeal on this issue are not strong. [40] Finally, the exceptional or special circumstances to be considered as part of the fourth factor should be considered in terms of prejudice to the appellants. This appeal was prepared, analyzed and argued on the assumption that the judge’s finding of liability against NLHC was not in issue. The submissions of the appellants respecting the level of damages would have taken on a different complexion and may have been completely unnecessary if the real issue was whether liability existed in the first place. Coming at such a late stage in the process, there is considerable prejudice to the appellants. There are no significant countervailing considerations of prejudice favouring NLHC. [41] It is therefore not appropriate to allow the new issue to be raised by way of cross appeal at this stage. [42] Counsel for NLHC submitted however, that it was not necessary for a cross appeal to be filed as a condition of him raising the issue. He submitted that Rule 57. 09(2) gives jurisdiction to the Court, in its discretion, to consider the issue without the filing of any notice of cross appeal. The rule provides: 57.09(2) Failure of a respondent to file and serve a notice of cross-appeal shall not diminish the power of the Court to deal with any matter that arises, but it may be grounds for an adjournment of the appeal or a special order as to costs. [43] If this rule were to be given the expansive interpretation that counsel for NLHC argues for, it would effectively mean that a respondent in any appeal would be able, without filing a cross appeal, to ask the Court nevertheless to consider a new appeal issue in the nature of a cross appeal even though it may have no connections with the issues raised by the appellant on the appeal itself. The better view of the scope of Rule 57.09(2) is that it recognizes the power of the Court to fully and effectually dispose of all issues that have been properly brought before it. If an issue “arises” out of issues that are already engaged on the appeal and it is necessary or desirable to determine that issue incidental to deciding the other issues to ensure that the case is fully and effectively dealt with, the Court will not be precluded from doing so simply because the nature of the issue that has been Page: 14 raised is such that it is one that technically would have had to have been raised by the respondent by way of cross appeal. [44] On this interpretation, the rule does not cover the present case. It is not necessary or even desirable, for the purpose of disposing of the issues raised by the appellant on the existing appeal to determine the issue now being sought to be explored by NLHC. In fact, the issue of the quantum of the damage award for interference with the appellant’s business relations with the R.C.M.P. has proceeded on the basis that the finding of the trial judge is correct and will not be disturbed. [45] In any event, even if the rule has theoretical application here, the exercise of the Court’s discretion would be tempered by considerations of prejudice which, as I have already said, favours the position of the appellants and would justify the Court in the circumstances in not acceding to NLHC’s request to consider the issue. Conclusion and Disposition [46] The application should be dismissed. [47] Counsel for NLHC has seriously overreached in asserting that counsel for the appellants exhibited egregious, willful misconduct and wrongdoing, and acted in an improper and unethical manner in concealing the documents. While the documents should have been disclosed pursuant to Rule 32 as material “relating to” matters in question in the proceeding, the non- disclosure is not of such a nature as to attract the exercise of the inherent jurisdiction of the Court to strike the appeal for this reason alone, nor to provide a similar remedy pursuant to Rule 32.10, even if that rule applies on appeal. [48] While the documents might have been potentially useful to NLHC for cross-examination purposes and as reinforcing the need for counsel to explore further, pre-trial, just what the status of the Benton lease was, they could hardly be said to have been conclusive of the issue and would not have had a material effect on the trial. Counsel for NLHC was, or ought to have been, aware of the substance of the issue relating to the lease and of the potential sources from where he could have obtained clarifying information. He did not do so. In any event he raised the issue at trial and cross-examined witnesses on the point. The fact that he did not receive these particular Page: 15 documents did not prejudice his client in any significant way in the conduct of the case. [49] Had counsel for NLHC applied for leave to cross-appeal on the issue of the subject-matter of the lease and for the reception of the documents as fresh evidence, these applications would have been denied. [50] Although the appellants ought to have made disclosure of the documents – and in that sense precipitated the issue – the non-disclosure did not call for the response made by counsel for NLHC with an aggressive attack on the professional reputation of counsel for the appellants. I would award costs on a party and party basis to the appellants, applying column 5 of Rule 55. J. Derek Green C.J.N.L. I concur: M. H. Rowe J.A. I concur: L. R. Hoegg J.A.