Veno v. Ensor Estate, (2014) 347 N.S.R.(2d) 288 (CA)

• Judge: Scanlan, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 19, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 347 N.S.R.(2d) 288 (CA);2014 NSCA 72

Veno v. Ensor Estate (2014), 347 N.S.R.(2d) 288 (CA);

    1098 A.P.R. 288

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JL.015

Neil Veno (applicant) v. Estate of Jill Ensor, by personal representatives, Rose Marie Sampson and Darrell Sampson (respondent)

(CA 426645; 2014 NSCA 72)

Indexed As: Veno v. Ensor Estate

Nova Scotia Court of Appeal

Scanlan, J.A.

July 4, 2014.

Summary:

In March 2005, the plaintiff filed an action against the defendant, claiming that the parties had lived together in a common law relationship on a property owned by the defendant from 1998 to 2004. The plaintiff sought damages to reflect his share of the value of assets acquired or improved during the relationship but which the defendant refused to pay. The defendant died in January 2013. The personal representatives of her estate moved for an order dismissing the action on the grounds that it had not been brought to trial in a reasonable time.

The Nova Scotia Supreme Court, in a decision reported at (2013), 335 N.S.R.(2d) 348; 1060 A.P.R. 348, granted the motion. The defendant sought costs calculated in accordance with Tariff A.

The Nova Scotia Supreme Court, in a decision reported at (2013), 337 N.S.R.(2d) 174; 1067 A.P.R. 174, held that it was appropriate to assess costs based on Tariff C, and to apply a multiplier of two to the upper amount of the range. Accordingly, the plaintiff was ordered to pay costs of $2,000. The plaintiff moved for leave to extend the time to file an appeal of the decision that dismissed his action.

The Nova Scotia Court of Appeal, per Scanlan, J.A., dismissed the motion.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - In 2005, Veno sued his former partner (Ensor) for damages to reflect his share of the value of assets acquired or improved during their relationship - Ensor died in 2013 - Her estate's personal representatives moved for an order dismissing the action on the grounds that it had not been brought to trial in a reasonable time - The motion judge granted the motion, finding that a six year period of inactivity in the action constituted an inordinate and inexcusable delay that had caused irreparable prejudice to the estate's ability to respond to the claim - Veno filed an appeal two days after expiry of the appeal period - He moved for leave to extend the time to file an appeal, submitting that he was late because of the delay in the processing of the final court order which was then forwarded to his solicitor by regular mail - The Nova Scotia Court of Appeal, per Scanlan, J.A., dismissed the motion - Although the delay of two days was short, Veno did not seek leave to have the appeal period extended for several weeks after being advised by the Registrar of the missed deadline - This unexplained delay did not give the court any comfort that Veno would be more diligent in the future than he had been in the past - More importantly, the motion failed because there was no merit to the proposed appeal - The motion judge's findings were reasonably supported by the record before him.

Cases Noticed:

Farrell v. Casavant (2010), 294 N.S.R.(2d) 292; 933 A.P.R. 292; 2010 NSCA 71, refd to. [para. 11].

McCully v. Rogers Estate (2013), 326 N.S.R.(2d) 5; 1033 A.P.R. 5; 2013 NSCA 22, refd to. [para. 11].

Tibbetts v. Tibbetts (1992), 112 N.S.R.(2d) 173; 307 A.P.R. 173 (C.A.), refd to. [para. 15].

Counsel:

Michael K. Power, Q.C., for the appellant;

Allan C. Fownes, for the respondent.

This motion was heard in Chambers in Halifax, N.S., on June 19, 2014, before Scanlan, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on July 4, 2014.