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CIVIL PROCEDURE - Appeals - Quashing or dismissal of - Reinstatement

Thursday, October 26, 2017 @ 8:35 AM  


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Application by the Stantec respondents for reconsideration of an ex parte order reinstating an abandoned appeal. The appellant, Community Mental Health Initiative Inc. (CMHI), purchased land to build a housing project. It discovered environmental contamination post-completion and sued several parties associated with the sale and environmental impact assessment. Following a summary trial, the claims against the Stantec respondents were dismissed. CMHI applied for leave to appeal in November 2014. No further steps were taken for one year. Consequently, the appeal was deemed abandoned and dismissed. In January 2016, CMHI filed a trial record. In October 2016, the registry recorded the appeal as abandoned and notified the parties. CMHI applied to reinstate the appeal. In November 2016, the appeal was reinstated without a hearing. The Stantec respondents sought directions and reconsideration of the order reinstating the appeal.

HELD: Application dismissed. Rule 57.20 governing abandoned appeals was silent as to the present situation of a registry failing to record an abandonment and mistakenly accepting the filing of a trial record. From the moment the appeal was deemed abandoned, the Rules assumed abandonment was recorded with notice delivered and filings refused. The trial record was a valid court record until set aside. CMHI demonstrated a bona fide intention to appeal through filing a trial record and corresponding repeatedly with the Court in an effort to schedule its application for leave. The reinstatement application was filed within a week of receiving notice. The record did not establish any reliance or prejudice accruing to the Stantec respondents from allowing the appeal to proceed. The appeal was properly reinstated.

Community Mental Health Initiative Inc. v. Summit Lounge Ltd., [2017] N.J. No. 347, Newfoundland and Labrador Supreme Court - Court of Appeal, C.W. White, L.R. Hoegg and M.F. Harrington JJ.A., October 6, 2017. Digest No. TLD-October232017008