Page: 1 PROVINCE OF PRINCE EDWARD ISLAND PRINCE EDWARD ISLAND COURT OF APPEAL

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1 Page: 1 PROVINCE OF PRINCE EDWARD ISLAND PRINCE EDWARD ISLAND COURT OF APPEAL Citation: Ayangma v. French School Board 2010 PECA 03 Date: Docket: S1-CA-1174 Registry: Charlottetown BETWEEN: AND: NOËL AYANGMA APPELLANT FRENCH SCHOOL BOARD and GABRIEL ARSENAULT RESPONDENT (Decision on motion to stay or dismiss the appeal) Before: Chief Justice David H. Jenkins Justice John A. McQuaid Justice Michele M. Murphy Appearances: Noël Ayangma, representing himself Mary Lynn Kane, Q.C., counsel for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island October 28, 2009 Charlottetown, Prince Edward Island February 19, 2010 Written Reasons by: Chief Justice David H. Jenkins Concurred in by: Justice John A. McQuaid Justice Michele M. Murphy

2 Page: 2 CIVIL PROCEDURE - Appeals - Quashing or dismissal of Motion allowed The respondents made a motion to dismiss an appeal from an order dismissing a motion for summary judgment with costs and assessing the costs of the motion. After the judgment dismissing the motion for summary judgment and before the judgment assessing the costs and commencement of the appeal, events occurred in the appellant s action. The parties proceeded to trial of the action, the action was dismissed, and an appeal of the trial decision was commenced. The Court of Appeal considered the respondents motion as an application to quash the appeal and the circumstances of the appeal to constitute a proper case for quashing the appeal, and granted the respondents motion. Authorities Cited: CASES CONSIDERED: Oatway v. Canada (Wheat Board), [1945] S.C.R. 204; University of New Brunswick Student Union Inc. v. Smith, [1987 NBJ No. 804 (NBCA); LesYork Holdings Ltd. et al. v. Munden Acres Ltd. et al. (1976), 13 O.R. (2d) 430 (Ont.C.A.); Darville v. MacRae Holdings Ltd., [2003] P.E.I.J. No. 48 (PESCAD); Fraser v. Professional Propane Services, [2004] P.E.I.J. No. 102 (PESCAD); Pigott v. Pigott, [1969] 2 O.R. 427 (Ont.C.A.); MacLean v. Danicic, [2010] O.J. No. 284 (Ont.C.A.); Coco-Cola Co. of Canada v. Matthews, [1944] S.C.R. 385; Appliance Service Co. v. Sarco Canada Ltd., [1976] F.C.J. No. 505 (F.C.A.); Barmar Construction (Ontario) Inc. v. Mississauga (City), [2005] O.J. No. 811 (Ont.C.A.); Herbison v. Lumbermens Mutual Casualty Co., [2005] O.J. No (Ont.C.A.) STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms, s.52 of the Constitution Act, 1982, s.15; Judicature Act, R.S.P.E.I. 1988, Cap. J-2.1, s-s. 5(1), s- s.5(3)(b), s-s.21(4) RULES CONSIDERED: Prince Edward Island Rules of Civil Procedure, Rules 61, 61.02, 61.02(1)(b) Reasons for judgment: JENKINS C.J.P.E.I.: [1] The respondents made a motion to stay or dismiss the appellant s appeal of decisions of a motions judge dismissing his motion for summary judgment and assessing costs on the motion. [2] The parties are engaged in a long-standing court proceeding, which the

3 Page: 3 appellant initiated in The appellant claims the respondents discriminated against him contrary to s.15 of the Charter regarding his applications for employment as a teacher. [3] In 2000, some of the claims were struck out, and the Charter claim was stayed pending completion of parallel human rights complaint proceedings. In 2003, a human rights panel dismissed Mr. Ayangma s complaint, and an ensuing judicial review and appeal occurred and were completed in [4] In February 2006, the court proceeding was re-activated. The appellant made a motion for summary judgment, which the motions judge Taylor J. heard and then dismissed with costs in March 2007 (Ayangma v. French School Board & Ano PESCTD 12). [5] The parties then proceeded to trial. A nine-day trial was held in February 2008, after which the appellant s claim was dismissed (Ayangma v. French School Board & Arsenault 2008 PESCTD 39). The appellant then commenced an appeal of the trial judgment in November [6] Later on, on June 3, 2009, the motions judge assessed the costs on the motion for summary judgment, and an order dismissing the motion for summary judgment with costs and assessing the costs was entered into the court record on June 12, [7] The appellant commenced an appeal from the order of the motions judge on June 29, He asks this court to set aside: (1) the dismissal of his motion for summary judgment; (2) a procedural ruling made within the motion that granted a respondents request for adjournment, more time to prepare, and split or bifurcated the motion; and (3) the assessment of costs. The appellant also asks this court to grant judgment on the action. In his grounds, the appellant asserts the motions judge made substantive errors in his assessment of the evidence and the issues for trial, procedural errors regarding adjournment and splitting the motion, and regarding the assessment of costs, numerous errors, including delaying the assessment for 26 months and making a costs award that amounts to punishment, an abuse of discretion, and therefore an injustice. [8] The respondents made a motion to stay or dismiss the appellant s appeal from the order dismissing the motion for summary judgment and assessing the costs on the motion. Regarding the appeal of the dismissal of the motion, the respondents assert the issues raised on the appeal are moot and/or do not raise any reasonable cause of action, and that the appeal is a duplication of the appeal of the trial decision. Regarding the appeal of the assessment of costs, the respondents assert that the appeal is improper because leave to appeal has not been obtained, and also because the

4 Page: 4 appellant is precluded from appealing by agreement not to appeal. DECISION Summary [9] Having heard and considered the respondents motion, I would conclude that the motion should be granted, and that the appropriate relief is that the appeal be quashed. [10] Section 5(1) of the Judicature Act, R.S.P.E.I Cap. J-2.1, is a broad right of appeal. Nevertheless, s.21(4) gives the court power to quash an appeal in a proper case. Those provisions state: 5.(1) Subject to subsection (3), an appeal lies to the Court of Appeal from any order of the Supreme Court (4) On application, the court to which an appeal is made may, in a proper case, quash the appeal. [11] I consider this to be a proper case, and I would quash the appeal. Appeal of dismissal of motion for summary judgment [12] I will address the appeal of the dismissal of the motion for summary judgment first. [13] Following the decision of the motions judge having been rendered in March 2007, the appellant did not seek to take out an order and appeal. Instead, he acted so as to treat that decision as final. He participated with the respondent and the Supreme Court in having the action move forward expeditiously to trial in February He took part in the trial. Following dismissal at trial, he exercised his right and commenced an appeal. [14] Both the substantive decision to dismiss the motion for summary judgment and the interlocutory procedural decision to adjourn and split the motion were decisions regarding the utility of an appeal would soon pass or be overtaken by events. Once the action went forward to trial, those issues were no longer the basis of a present live controversy affecting the rights of the parties. [15] The appellant did commence his appeal within the appointed 30-day time

5 Page: 5 limit after filing of the order appealed from in June However, the occurrence of the trial in the meantime before he commenced his appeal brought about a change of circumstances that rendered an appeal of the motion for summary judgment superfluous for all practical purposes. The parties had their day in court regarding the substantive issues, and the appeal of the procedural decision became no longer purposeful. [16] The respondents notice of motion asks this court to dismiss the appeal. I am satisfied that the language employed can constitute the motion as an application to quash the appeal. While there is some different meaning and application of quash and dismiss, both words involve setting aside and final determination. [17] In Oatway v. Canada (Wheat Board), [1945] S.C.R. 204, the applicant made a motion to quash and dismiss an appeal, and in granting the motion the court made no comment on any distinction between the two terms in this context. [18] As to what constitutes a proper case for the court to quash an appeal, direction is provided by Supreme Court of Canada jurisprudence and by precedents in this and other appellate courts. [19] In Oatway v. Canada (Wheat Board), supra the Supreme Court declined to hear an appeal when it found there was no issue before it to be decided between the parties. After a decision of a lower court had been rendered, events occurred in the form of government regulation which the court considered had removed the substratum of the plaintiff s claim. The respondent moved to quash the appeal on the grounds that the claim and appeal were without substance and merit and had become wholly academic and futile. The motion to quash was granted because the appeal was viewed as having become manifestly entirely devoid of merit and substance. Rinfret C.J.C. for the court stated: It is far from being the first time that this Court has been called upon to decide in such a way appeals which, on their face, appear either to be devoid of any substance or merit, or to require a speedy decision. it is not necessary to advert beyond the year 1926 when this Court, in National Life Assurance Co. of Canada v. McCoubrey, [1926] S.C.R. 277], held that if an appeal, though within the jurisdiction of the Court, be manifestly entirely devoid of merit or substance, the Court will entertain favourably a motion to quash it. [emphasis added] [20] In the McCoubrey case, supra, Anglin C.J.C. for the court had previously stated:... it was suggested to counsel... of asking that the appeal be quashed for such manifest lack of substance as would bring it within the character of

6 Page: 6 vexatious proceedings designed merely to delay the plaintiff s recovery... If an appeal, though within its jurisdiction, be manifestly entirely devoid of merit or substance, this court will entertain favourably a motion to quash it, as it does in cases where costs only are involved... as a convenient way of disposing of the appeal before further costs have been incurred.... [emphasis added] [21] The mentioned Supreme Court of Canada jurisprudence considered a statutory provision different then the s.21(4) of the Judicature Act; however, the principle has application. The test enunciated by the Supreme Court manifestly entirely devoid of merit or substance was adopted and applied by the New Brunswick Court of Appeal in University of New Brunswick Student Union Inc. v. Smith, [1987 NBJ No. 804 (NBCA). It has been applied, albeit in an abbreviated form, manifestly devoid of merit in Ontario (LesYork Holdings Ltd. et al. v. Munden Acres Ltd. et al. (1976), 13 O.R. (2d) 430 (Ont.C.A.)). The test in Les York Holdings supra was later applied in this jurisdiction in a number of cases, and was discussed in Darville v. MacRae Holdings Ltd., [2003] P.E.I.J. No. 48 (PESCAD) at 4, and Fraser v. Professional Propane Services, [2004] P.E.I.J. No. 102 (PESCAD), at 4. In both of those cases, the motion to quash was based on the appeal being manifestly devoid of merit. The appeal being devoid of substance was not in issue. Change of circumstances such as that which occurred in the appeal upon which the motion is brought was not in issue. [22] The circumstances of this appeal are analogous to those found in the case of Herbison cited by counsel for the respondent on the motion. The appellant in this case took steps similar to the practice employed by a plaintiff in Herbison v. Lumbermens Mutual Casualty Co., [2005] O.J. No (Ont.C.A.). After dismissal of a summary judgment motion, the unsuccessful party proceeded to trial and the matters in issue were litigated. In dismissing a subsequent appeal of the dismissal of the summary judgment motion, Cronk J.A. (at paras.86-88) (dissenting on other issues) observed that the trial overtook the issues raised on the summary judgment motion, with the effect that the parties had their day in court so that the issues sought to be raised on the appeal from dismissal of the summary judgment motion were...now superfluous for all practical purposes. [23] Appellate courts have considered it a proper case to quash an appeal in various circumstances, where circumstances have changed or events have occurred that have resulted in the substance of the appeal being viewed as no longer a live issue between the parties: where an appellant acted on a judgment by having interim alimony reduced before appealing (Pigott v. Pigott, [1969] 2 O.R. 427 (Ont.C.A.)); where an appellant persistently made no effort to pursue the appeal, reflecting his previous pre-trial conduct (MacLean v. Danicic, [2010] O.J. No. 284 (Ont.C.A.)); where although leave to appeal was granted by the court appealed from, the terms of leave to appeal left no issue to be decided between the parties, except abstract

7 Page: 7 propositions of law (Coco-Cola Co. of Canada v. Matthews, [1944] S.C.R. 385); where a patent that was the subject of the litigation expired before the appeal was heard (Appliance Service Co. v. Sarco Canada Ltd., [1976] F.C.J. No. 505 (F.C.A.)); where the appeal was regarding an issue previously dismissed for delay (Barmar Construction (Ontario) Inc. v. Mississauga (City), [2005] O.J. No. 811 (Ont.C.A.)), which the court considered to be an abuse of process. [24] In the present case, after judgment was rendered dismissing the motion for summary judgment, the appellant actively participated in consensually submitting the action to trial. The appellant gave no further indication to the respondent or the Supreme Court that he intended or preferred to pursue an appeal of the judgment. Had he wanted to appeal, one would think he would have signaled that course. The substantive issues have since been fully litigated and adjudicated in the trial. There is nothing left of the motion for summary judgment to be decided. The appellant s choice of proceeding to trial amounted to an acceptance of the dismissal of his motion for summary judgment as final. It was an act of acquiescence with the effect of relinquishing his right of appeal. The time has passed and the circumstances have changed so that the appeal is no longer purposeful and could not lead to any possible good. This is a proper case for quashing the appeal because the appeal is now manifestly devoid of substance. As such, it is an abuse of the process of the court. Appeal of assessment of costs [25] The appeal of the assessment of costs should be quashed because leave to appeal was not obtained, and therefore the appeal is a nullity. [26] While I would quash it on that basis, it is beneficial to state here that I do not accept the respondents ground that the appellant is precluded by agreement from appealing the assessment of costs. Before addressing that issue, I wish to address the status of the appellant s appeal of the assessment of costs. Leave to appeal [27] The appellant has not obtained the required leave to appeal. The Judicature Act R.S.P.E.I. 1988, Cap. J-2.1, s.5(3)(b) stipulates that no appeal lies to this court from an order of the Supreme Court for costs that are in the discretion of the Supreme Court without leave granted by the Court of Appeal if the appeal is based on the ground that the discretion was wrongly exercised. Rule directs the procedure for seeking leave to appeal. Where an appeal requires leave of the Court of Appeal, the party seeking to appeal can make a motion for leave in accordance with the Rule. Clause 61.02(1)(b) requires that the motion be served within 15 days after the date of the order or decision from which leave is sought, unless a statute provides otherwise.

8 Page: 8 In this instance, leave was not applied for within the appointed time, or at all in accordance with the Rule, and this Court has not granted leave. [28] Leave is a statutory prerequisite to an appeal. Regarding procedure, Rule 61 contemplates that leave be applied for and granted before an appeal is commenced. In view of those provisions, in the present case, the appeal of the assessment of costs is a nullity. No appeal exists from the decision or order of the motions judge assessing the appellant s (plaintiff s) costs on the motion for summary judgment. [29] Although there is now no appeal, the appellant can still seek to overcome the hurdles of obtaining leave. This first hurdle is to have this court dispense with compliance with the time requirement for applying for leave and extend the time for making a motion for leave. The second hurdle is to obtain leave to appeal. The proper procedure would be to make a notice of motion pursuant to the directions of Rule The respondents would have full opportunity to respond to such a motion. The court would then hear and decide the motion. No agreement not to appeal [30] The issue of whether the appellant is precluded by agreement or consent order from appealing was fully presented and considered within this motion. Although our opinion on the issue is not necessary since the motion is determined on another basis, it is practical and mutually beneficial to dispose of that issue now. [31] I do not accept the respondents contention that the agreement made between the parties and embodied in the consent order precludes the appellant s right to appeal the assessment of costs. [32] Setting aside for the moment the requirement for leave to appeal, the appellant promptly filed his appeal following the motions judge s assessment of costs being rendered and the order recording the assessment being entered. The starting premise should therefore be that subject to disqualification for some reason, the appellant would be entitled to pursue and perfect his appeal and have it heard and decided on its merits by the Court. [33] There is no question of this court giving less than full recognition to an agreement between parties or to a consent order of the Supreme Court. This Court fully respects the provisions of both of these forms of determination of issues between parties. The difficulty I have with the respondents submission is that I do not share their view that the agreement and consent order make a determination that the assessment of costs by the motions judge is not appealable. In my opinion the agreement and consent order do not have the effect of precluding the appellant s right

9 Page: 9 of appeal. [34] The respondents reason for disqualification is that the appellant participated in a consent order that settled and set off of a number of costs orders between the parties and also between the appellant and Eastern School Board and thereby agreed not to appeal the assessment. The respondents' evidence is that immediately following the motions judge rendering his reasons for assessment of costs, which informed the parties that the award of costs on the motion for summary judgment was the aggregate sum of $27,086., both parties completed the consent order, the consent order was issued out of the Supreme Court on June 5, 2009, the set-offs were made, and in the result the government paid and the appellant accepted payment of the net offset amount $9,342. on June 5, [35] The appellant disputes the assertion that he agreed not to appeal the assessment of costs, and the conclusion that the agreement between the parties and the consent order precludes his right of appeal. His evidence and position is that he always intended to appeal the assessment, and that by participating in the set-offs of the various costs order he did not forego his right of appeal of the motion judge's assessment of costs of June 3, He points out that the agreement contained in the consent order was pretty well final before the parties knew the amount of the assessment of costs on the motion. He contends that he was entitled under the set-off agreement to receive the net off-set amount $9,342., and there is no basis in the agreement, in the rest of the evidence, or in logic, to conclude that he was giving up his right of appeal of the assessment of costs. [36] My assessment is that the evidence on this motion does not support the respondents' contention that the appellant gave up his right to appeal the assessment. It is perhaps understandable that the respondent School Board may have proceeded with the understanding that the consent order settled various costs matters, including the motion judge's assessment of June 3, However, there is no express provision to that effect in the agreement in writing between the parties that is contained in the consent order, and one could reasonably expect to see such important consideration expressly stated. In my view, the terms of agreement address the assessment in question as pending, and only stipulate the mechanics for computing the net set-off amount to be paid. Outside the agreement, the parol evidence contained in this motion does not support a finding that the parties were ad idem that the consideration for and the payment of the set-off amount included the appellant foregoing his right of appeal. Nothing stipulates that Mr. Ayangma would not be entitled to the right of appeal of the motion judge's assessment of costs before the amount of the appealed assessment is considered final. [37] The respondents raised the matter of prejudice. As no agreement not to appeal

10 Page: 10 is found, prejudice is not a consideration. In any event, I do not see that pursuit of the appeal following the parties having acted on the consent order could cause prejudice to the respondents. Should an appeal result in a lower assessment, then it is the appellant who would be entitled to the benefit of correction upon appellate review. There is no collection issue for the respondent School Board. No appeal result could cause the net set-off already paid of $9,342. to be decreased. The result sought by the appellant is to reduce the costs assessment. If successful this would only have the effect of increasing the amount of the payment to be made by the government to the appellant under the agreement. [38] In all the circumstances, I would conclude that the appellant s right of appeal of the motion judge's costs assessment of June 3, 2009 is not precluded by agreement or consent order. However, for clarification, this disposition does not relieve the appellant from the requirement of leave to appeal or indicate whether leave would be granted. No stay of the appeal of the assessment of costs [39] I do not see any advantage flowing from a stay of an appeal of the costs assessment. It would be an appeal of a discretionary costs order, on a stand-alone motion, and it stands apart from other litigation between the parties. No appeal now exists. If leave is sought and obtained, the appeal should be pursued expeditiously. Conclusion [40] I would grant the respondents' motion, and quash the appellant's appeal. [41] I would decide on costs in the following manner. The respondents succeeded in having the appeal quashed. However, the appellant succeeded having the respondents motion to dismiss his appeal of the costs assessment based on agreement not to appeal denied. In the end, this decision on the respondents motion brings the appellant s appeal to a conclusion (without precluding his right to seek leave and apply for leave to appeal the assessment of costs). Respondents counsel asked for costs throughout. I would award the respondents partial costs on the motion, and costs on the appeal, both on a partial indemnity basis. I would assess

11 Page: 11 those costs in the sum of $2,000. all inclusive, and direct the appellant to pay them forthwith, meaning within 30 days. Chief Justice David H. Jenkins I AGREE: Justice John A. McQuaid I AGREE: Justice Michele M. Murphy