Bank of Nova Scotia v. Brown and Brown (L.A.) Ltd.; Brown (L.A.) Ltd. v. Texaco Canada Ltd., (1967) 40 N.B.R.(2d) 245 (CA)

JudgeBridges, C.J.N.B., West and Limerick, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateJune 14, 1967
JurisdictionNew Brunswick
Citations(1967), 40 N.B.R.(2d) 245 (CA)

BNS v. Brown (1967), 40 N.B.R.(2d) 245 (CA);

    40 R.N.-B.(2e) 245; 105 A.P.R. 245

MLB headnote and full text

Sommaire et texte intégral

Bank of Nova Scotia v. Brown and L.A. Brown Limited; L.A. Brown Limited v. Texaco Canada Limited

Indexed As: Bank of Nova Scotia v. Brown and Brown (L.A.) Ltd.; Brown (L.A.) Ltd. v. Texaco Canada Ltd.

Répertorié: Bank of Nova Scotia v. Brown and Brown (L.A.) Ltd.; Brown (L.A.) Ltd. v. Texaco Canada Ltd.

New Brunswick Court of Appeal

Bridges, C.J.N.B., West and Limerick, JJ.A.

June 14, 1967.

Summary:

Résumé:

Two actions were consolidated into one. In the first action, a bank was awarded judgment against the corporate defendant, but the action was dismissed against the personal defendant. Nearly three months after judgment was signed, the bank applied for an extension of time to file notice of appeal against that part of the judgment dismissing the action against the personal defendant. A judge of the Appeal Division, in chambers, in a decision not reported in these reports, allowed the application. The personal defendant appealed.

The New Brunswick Court of Appeal allowed the appeal and set aside the order extending the time for filing the notice of appeal.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The New Brunswick Court of Appeal held that a judge had a judicial, not an absolute, discretion whether to extend the time for filing a notice of appeal - The court stated that there were no set rules or circumstances under which an extension of time would be granted - See paragraphs 6 to 8, 16 to 19.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The New Brunswick Court of Appeal set aside an order extending the time for filing a notice of appeal, where the intended appellant failed to disclose his grounds of appeal, allege an intention to appeal or show that he had an arguable case - The court stated that an application to extend the time for filing should state the reasons why notice was not given within the required time - See paragraphs 6 to 8, 21 to 22.

Cases Noticed:

Re Arbitration Wiezel Bros. and British Traders Insurance Co. (1948), 22 M.P.R. 425, consd. [para. 5].

Powers v. Nashwaak Pulp & Paper Co. Ltd. (1937), 12 M.P.R. 503, consd. [para. 7].

Re Manchester Economic Building Society (1883), 53 L.J. Ch. 115, consd. [para. 7].

Geck v. Geck, [1944] 3 W.W.R. 607 (Sask. C.A.), refd to. [para. 16].

Jesske v. Klein, [1947] 2 W.W.R. 888 (Sask. C.A.), refd to. [para. 16].

Johnston v. Petrolia, 17 P.R. 332, refd to. [para. 16].

Smith v. Hunt, 5 O.L.R. 97, refd to. [para. 16].

Campbell v. Laliverte, [1947] 2 W.W.R. 334 (Man. C.A.), refd to. [para. 16].

Statutes Noticed:

Rules of Court (N.B.), Order 58, rule 3(4) [para. 15]; rule 5A [para. 4].

Counsel:

[None disclosed.]

This appeal was heard before Bridges, C.J.N.B., West and Limerick, JJ.A., of the New Brunswick Supreme Court, Appeal Division. The decision of the Court of Appeal was delivered on June 14, 1967, when the following opinions were filed:

Bridges, C.J.N.B. - see paragraphs 1 to 9;

Limerick, J.A. - see paragraphs 10 to 23.

West, J.A., concurred with Bridges, C.J.N.B.

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