Law Society of Manitoba v. Eadie, (1988) 54 Man.R.(2d) 1 (CA)

• Judge: Monnin, C.J.M., Twaddle and Lyon, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 16, 1988
• Jurisdiction: Manitoba
• Citations: (1988), 54 Man.R.(2d) 1 (CA);1988 CanLII 206 (MB CA);[1988] 6 WWR 354;[1988] MJ No 342 (QL);29 CPC (2d) 278;54 Man R (2d) 1

Man. Law Soc. v. Eadie (1988), 54 Man.R.(2d) 1 (CA)

MLB headnote and full text

Law Society of Manitoba (respondent/applicant) v. Warren Shaver Eadie

(Suit No. 375/87)

Indexed As: Law Society of Manitoba v. Eadie

Manitoba Court of Appeal

Monnin, C.J.M., Twaddle and Lyon, JJ.A.

June 27, 1988.

Summary:

A lawyer was found guilty of professional misconduct and disbarred. The lawyer filed a notice of appeal on September 16, 1987. Six months went by, during which time the lawyer failed to take any step in the appeal proceedings. The Law Society applied under Court of Appeal Rule 51 to dismiss the lawyer's appeal. Philp, J.A., of the Manitoba Court of Appeal, in a decision reported in 51 Man.R.(2d) 279, allowed the application, because of the lawyer's delay. The lawyer appealed.

The Manitoba Court of Appeal, in a decision unreported in this series of reports, held that a single appellate judge lacked jurisdiction to dismiss the appeal and set aside the judge's order, with leave granted to the Law Society to renew its application. The Law Society again applied to dismiss the lawyer's appeal.

The Manitoba Court of Appeal dismissed the application, where in the interim the lawyer had explained the delay and any prejudice to the Law Society had been removed.

Practice - Topic 5360

Dismissal of action - Grounds - Want of prosecution - Delay - The Manitoba Court of Appeal held that on an application to dismiss an action for want of prosecution, the fundamental principle is that a litigant is entitled to have his case decided on the merits unless he is responsible for undue delay which has prejudiced the other party - This involves balancing the basic right of that litigant with the right of the other party not to have his rights prejudiced by undue delay - The court should consider: (1) the subject matter of the litigation; (2) the complexity of the issues between the parties; (3) the length of the delay; (4) the explanation for the delay; and (5) the prejudice to the other litigant - See paragraphs 12 to 16.

Practice - Topic 8862

Appeals - Quashing appeals - Grounds - Delay - The Manitoba Court of Appeal held that on an application to dismiss an appeal for delay, the fundamental principle is that a litigant is entitled to have his case decided on its merits unless he is responsible for undue delay which has prejudiced the other party - This involves balancing the basic right of that litigant with the right of the other party not to have his rights prejudiced by undue delay - The court should consider: (1) the subject matter of the litigation; (2) the complexity of the issues between the parties; (3) the length of the delay; (4) the explanation for the delay; and (5) the prejudice to the other litigant - The court also held that in certain cases the merits of the appeal should be considered - See paragraphs 12 to 17.

Practice - Topic 8862

Appeals - Quashing appeals - Grounds - Delay - In August 1987, a lawyer was disbarred - The lawyer filed a notice of appeal on September 16, 1987 - For the next six months the lawyer took no step in the appeal proceedings, in breach of the Rules of Court - In June 1988 the Manitoba Court of Appeal refused to dismiss the lawyer's appeal on the ground of delay, where in the interim the lawyer had explained the delay and any prejudice to the Law Society had been removed.

Cases Noticed:

Williams v. Racey, [1953] 1 D.L.R. 542 (Man. C.A.), refd to. [para. 13].

Russell v. Glassman et al. (No. 2) (1959), 66 Man. R. 464 (C.A.), refd to. [para. 13].

Ross v. Crown Fuel Co. (1963), 37 D.L.R.(2d) 30; 41 W.W.R.(N.S.) 65 (Man. C.A.), refd to. [para. 13].

Heichert v. A.M. Kelly & Sons Ltd. (1963), 37 D.L.R.(2d) 55 (Man. C.A.), refd to. [para. 13].

Shura v. Silver (1963), 43 W.W.R.(N.S.) 272 (Man. C.A.), refd to. [para. 13].

Allen v. Sir Alfred McAlpine & Sons, [1986] 1 All E.R. 543, refd to. [para. 13].

Paxton v. Allsopp, [1971] 3 All E.R. 370, refd to. [para. 13].

Carey v. Twohig (1973), 37 D.L.R.(3d) 718, refd to. [para. 13].

Robert McAlpine Ltd. v. Martell (1978), 86 D.L.R.(3d) 481, refd to. [para. 13].

Counsel:

D. Mullord, for Warren Eadie;

J.M. Webster, for the Law Society.

This application was heard before Monnin, C.J.M., Twaddle and Lyon, JJ.A., of the Manitoba Court of Appeal on June 16, 1988. The decision of the Court of Appeal was delivered by Twaddle, J.A., on June 27, 1988.