Islam v. Sevgur, 2011 NSCA 114

In Islam v. Sevgur, the Nova Scotia Court of Appeal provided a non-exhaustive list of relevant factors for deciding if a Registrar's motion to dismiss an appeal should be granted. Saunders, J.A. held that the onus was on the appellant to introduce evidence that it would not be in the interests of justice to dismiss the appeal.

The issue arose when the appellant's interlocutory appeals during his divorce proceedings failed to meet procedural requirements, prompting the Registrar to move for their dismissal. Civil Procedure Rule 90.43 provides the judge with discretion to decide whether the Registrar's motion should be granted. In the absence of guidance in Rule 90.43, Justice Saunders introduced his own approach, stating that the appellant must satisfy the court, on a balance of probabilities, that the Registrar's motions should be denied. He held that the appellant had to convince the court that it would not be in the interests of justice to dismiss the appeal for non-compliance.

Saunders, J.A. stated eight factors for consideration but held that they were not a complete list:

(i) whether there is a good reason for the appellant's default,
sufficient to excuse the failure.
(ii) whether the grounds of appeal raise legitimate, arguable issues.
(iii) whether the appeal is taken in good faith and not to delay or
deny the respondent's success at trial.
(iv) whether the appellant has the willingness and ability to comply
with future deadlines and requirements under the Rules.
(v) prejudice to the appellant if the Registrar’s motion to dismiss
the appeal were granted.
(vi prejudice to the respondent if the Registrar’s motion to dismiss
were denied.
(vii) the Court's finite time and resources, coupled with the
deleterious impact of delay on the public purse, which require that
appeals be perfected and heard expeditiously.
(viii) whether there are any procedural or substantive impediments
that prevent the appellant from resuscitating his stalled appeal.

In reviewing the evidence, Saunders, J.A. concluded that the Registrar's motions should be granted as there would be neither prejudice to the appellant, nor was he persuaded by the appellant's reasons for non-compliance. Furthermore, Saunders, J.A. found that the denial of these appeals would prejudice the respondent. Hence, all of the appeals were dismissed.

December 7, 2011
Link to Decision

Adrienne Ho
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