IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR
COURT OF APPEAL
Citation: Winters v. Nor-Lab Limited, 2017 NLCA 7
Date: 20170131
Docket: 201601H0125
BETWEEN:
TOMMY WINTERS
APPELLANT
NOR-LAB LIMITED
RESPONDENT
AND:
Coram: Hoegg J.A.
Court Appealed From: Supreme Court of Newfoundland and Labrador
General Division - 2015 NLTD (G) 8
201208G0096
Application Heard:
Judgment Rendered:
January 24, 2017
January 31, 2017
Reasons for Judgment: Hoegg J.A.
Counsel for the Applicant: Tommy Winters, Self-Represented
Counsel for the Respondent: Kyle Rees
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MEMORANDUM OF DISPOSITION
Hoegg J.A.:
1.
Tommy Winters applies for reinstatement of his appeal which was filed on
February 27, 2015. Mr. Winters was advised that his appeal was abandoned by
correspondence dated October 14, 2016 from this Court’s Registry, and he applied
for reinstatement on November 21, 2016. Nor-Lab opposes his application.
2.
On October 17, 2016, the Court of Appeal Rules, NLR 38/16 (the “new
rules”) came into force. The new reinstatement rule, Rule 17(9) provides for
reinstatement upon terms the Court considers just. Under the former rules,
reinstatement of a civil appeal which was deemed abandoned involved balancing
the following factors, set out in Fahey v. The Law Society of Newfoundland, 2003
NLCA 8, 221 Nfld. & P.E.I.R. 79 at paragraph 13:
(i)
whether the appeal discloses an arguable case,
(ii)
whether the applicant had a bona fide intention to proceed with his or
her appeal,
(iii)
whether the applicant has a reasonable excuse for failing to proceed
with his or her appeal prior to the deemed abandonment,
(iv)
the timeliness of the application of reinstatement, and
(v)
the presence or absence of special circumstances that might justify or
deny reinstatement.
3.
While the controlling factor under the new rules is whether reinstatement
would be just, the Fahey factors provide a useful analytical approach (Ellis v.
Pelley Estate, 2016 NLCA 77 at para. 5).
4.
Mr. Winters filed documentation with his application for reinstatement,
including correspondence he received from two former lawyers concerning the
merits of an appeal.
5.
After receiving the trial judge’s decision in his case, Mr. Winters rejected his
trial counsel’s advice, filed an appeal himself and retained new counsel to pursue
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it. He advised the Court that he believed his new counsel was pursuing the matter
from March 2015 until late 2016. The record shows that relations broke off with
his new counsel in the fall of 2016. Mr. Winters did not advise the Court of a plan
for proceeding with his appeal (see various references to a plan in the new Rule
17). However, he did advise at the hearing that he had recently spoken with
another counsel who told him that he would take on the case, although that lawyer
has had no contact with the court and nothing has been filed in that regard. Mr.
Winters also advised the Court of relatively recent personal problems which he
says have prevented him from proceeding with his appeal. Accordingly, I accept
that Mr. Winters had a bona fide intention to pursue his appeal and that he has a
reasonable excuse for not complying with the time requirement in the Rules.
Nevertheless, I have concerns about Mr. Winters’ plan to proceed with his appeal.
6.
The timeliness of his application for reinstatement is also of concern. While
the approximate delay of one month between when Mr. Winters received notice of
the deemed abandonment and when he applied for reinstatement on November 21,
2016 is timely, the delay between when his appeal was deemed or could have been
deemed abandoned on March 31, 2016 and November 21, 2016 is not particularly
so. In any case, most of this period is when Mr. Winters was represented by
counsel.
7.
Of greater concern to Mr. Winters’ application is whether he has an arguable
case on appeal. Mr. Winters operated a store in Makkovik at which he sold beer
supplied to him by Nor-Lab. He had an outstanding account of $137,598.70 with
Nor-Lab, so Nor-Lab sued him (Nor-Lab Limited v. Winters, 2015 NLTD(G) 8) for
payment. Mr. Winters filed a counter-claim asserting that he had been charged by
Nor-Lab for beer which had not been delivered to him. More specifically, Mr.
Winters maintained that Nor-Lab charged him for twelve-packs of beer when they
only delivered eight-packs to him. His appeal is based on the position he asserted
in the counterclaim.
8.
The Judge allowed Nor-Lab’s claim and dismissed Mr. Winters’
counterclaim saying “There is no evidence whatsoever to support the allegation in
the counterclaim” (paragraph 16).
9.
Mr. Winters continues to maintain that Nor-Lab over-charged him, and
argues that had his accountant been able to testify, or had his accountant’s reports
been admitted into evidence, the result would have been different. Mr. Winters
included his accountant’s two one-page reports in the material he filed on this
application. These reports do not support Mr. Winters’ argument that he received
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eight-packs of beer while being charged for twelve-packs or that he was otherwise
overcharged. Complicating Mr. Winters’ ground of appeal is the fact that the
accountant has since passed away.
10. I have reviewed the Judge’s decision which deals with Mr. Winters’
overcharging argument. The decision appears to me to be carefully considered and
sound. I cannot see how the brief and equivocal remarks in the accountant’s two
reports could affect the Judge’s decision. I also note the advice from Mr. Winters’
former trial counsel that the information which the accountant could have provided
had he testified would not have been useful and “would likely have been
detrimental” to Mr. Winters’ case and “supported the plaintiff’s” case. I note that
both former counsel told Mr. Winters that they were of the opinion that the Judge
made no appealable errors of fact or law in his decision.
11. In summary, there is nothing in the Judge’s decision, in the record filed by
Mr. Winters, or in his oral submissions which indicates that Mr. Winters has an
arguable case on appeal. He has not shown me any basis on which I could say that
the Judge erred or may have erred in his decision, and I have not been advised of
any special circumstances that would otherwise justify reinstatement. In short, Mr.
Winter’s appeal has no prospect of success.
12. Generally speaking, if there is no arguable case in an abandoned appeal there
is no point in reinstating it (Burgess v. Burgess 2015 NLCA 39, 371 Nfld. 8
P.E.I.R. 1 at para. 7). (See also the comments of Green, C.J. to the same effect in
R. v. Sawicki, 2013 NLCA 35, 337 Nfld. & P.E.I.R. 271 at para. 22 in the context
of an application to extend the time to file a Notice of Appeal). For the above
reason, I am of the view that reinstatement of Mr. Winters’ appeal would be futile
and a waste of resources for Mr. Winters as well as for the justice system.
Accordingly, it would not be just to reinstate it.
13. In the result, Mr. Winters’ application for reinstatement of his appeal is
dismissed.
14. Nor-Lab advised the Court that it was not seeking costs due to Mr. Winters’
circumstances. Accordingly, I make no order as to costs.
____________________________________
L. R. Hoegg J.A.