R. v. Rogier (F.), (2013) 341 N.S.R.(2d) 6 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 02, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 341 N.S.R.(2d) 6 (SC);2013 NSSC 440

R. v. Rogier (F.) (2013), 341 N.S.R.(2d) 6 (SC);

    1081 A.P.R. 6

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. FE.059

Francesca Rogier (appellant) v. Her Majesty the Queen (respondent)

(Hfx No. 405502; 2013 NSSC 440)

Indexed As: R. v. Rogier (F.)

Nova Scotia Supreme Court

Rosinski, J.

October 2, 2013.

Summary:

In May 2012, Rogier was convicted of a charge under the Halifax municipal bylaw regarding dogs and was sentenced accordingly. Rogier filed a notice of summary conviction appeal. Hearing dates were set for November 2012. Rogier was granted a number of adjournments and was given until August 9, 2013 to file her factum. She failed to do so. In October 2013, the Crown moved to dismiss the appeal under Civil Procedure Rule 63.09.

The Nova Scotia Supreme Court granted the motion in part. The court gave Rogier until November 8, 2013, to file her factum. Failing that, the appeal was dismissed.

Criminal Law - Topic 7471.2

Summary conviction proceedings - Appeals - General - Filing of factum - [See Criminal Law - Topic 7493 ].

Criminal Law - Topic 7493

Summary conviction proceedings - Appeals - Dismissal before hearing - For noncompliance with Rules - In May 2012, Rogier was convicted of a charge under the Halifax municipal bylaw regarding dogs and was sentenced accordingly - Rogier filed a notice of summary conviction appeal - Hearing dates were set for November 2012 - Rogier was granted a number of adjournments - Rogier was given until August 9, 2013 to file her factum - She failed to do so - In October 2013, the Crown moved to dismiss the appeal under Civil Procedure Rule 63.09 - The Nova Scotia Supreme Court granted the motion in part - The court gave Rogier until November 8, 2013, to file her factum - Failing that, the appeal was dismissed - The test for dismissal under Civil Procedure Rule 63.09 was the same test as under Civil Procedure Rule 90.43(a) for an extension of time to perfect an appeal - First, the court had to consider whether there was a good reason for the default - Second, were there material and arguable issues? - Third, was the appeal in good faith? - Fourth, was the appellant willing and able to comply with future deadlines? - Fifth, what was the prejudice to the appellant if the appeal was dismissed and, sixth, to the respondent if the appeal was not dismissed? - Seventh, what was the effect on court time and resources? - Eighth, were there procedural or substantive impediments that affected the appeal's viability? - Applying these factors led the court to conclude that there was a real concern that Rogier had not made her factum a priority - However, the appeal should be heard on the merits.

Trials - Topic 1185

Summary convictions - Appeals - Filing of factum - [See Criminal Law - Topic 7493 ].

Cases Noticed:

R. v. Liberatore (M.V.) (2010), 292 N.S.R.(2d) 69; 925 A.P.R. 69; 2010 NSCA 26, refd to. [para. 25].

R. v. Liberatore (M.V.), [2010] N.S.R.(2d) Uned. 84; 2010 NSCA 33, refd to. [para. 25].

Fawson Estate, Re (2013), 329 N.S.R.(2d) 329; 1042 A.P.R. 329; 2013 NSCA 54, refd to. [para. 25].

Deveau v. Fawson Estate - See Fawson Estate, Re.

Bellefontaine v. Schneiderman, [2006] N.S.R.(2d) Uned. 79; 2006 NSCA 96, refd to. [para. 29].

Nova Scotia (Attorney General) v. Spence, [2004] N.S.R.(2d) Uned. 57; 2004 NSCA 45, refd to. [para. 41].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 63.09 [para. 18].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Francesca Rogier, on her own behalf;

Katherine Salsman and Jim Janson, on behalf of the respondent.

This motion was heard at Halifax, N.S., on October 1 and 2, 2013, by Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following decision orally on October 2, 2013, and in writing on February 27, 2014.