Executive Summary: Key Legal and Evidentiary Issues

• Appeal reinstated after being placed on the inactive list due to procedural delays.

• Delay caused primarily by the shortcomings of former and new counsel, not by the appellants.

• Prejudice to the respondent acknowledged but not sufficient to deny reinstatement.

• The appeal was found to have a low but sufficient likelihood of success.

• Interests of justice favored allowing the appellants to proceed with their appeal.

• Costs of the reactivation application awarded to the respondent due to appellants’ counsel's delay.

Facts of the case

Richard and Marilyn MacLellan appealed a trial judgment in which they were held liable for personal injuries suffered by Cody Somers in a motor vehicle accident. The trial judge found that Richard MacLellan was the driver and responsible for the crash that rendered Mr. Somers paraplegic, and Marilyn MacLellan was found vicariously liable as the vehicle’s owner under section 86 of the Motor Vehicle Act. Mr. Somers was awarded approximately six million dollars in damages, with a 25% reduction for contributory negligence. The MacLellans challenged the liability findings, while Mr. Somers cross-appealed the contributory negligence assessment.

Following the filing of the notice of appeal, the matter was placed on the inactive list because no further appeal materials were filed within the required timeframe. The appellants’ original counsel later withdrew due to a conflict, and although new counsel was retained, they did not immediately reactivate the appeal. Instead, they focused on preparing a draft factum before taking procedural steps, causing a significant delay. The appellants applied to have their appeal reinstated and sought an extension of time to file their materials.

Outcome of the case

The Court found that the appellants were not personally at fault for the procedural delay. They diligently contacted their former counsel and, upon learning of the withdrawal, promptly retained new counsel. Although the delay was long and not well explained, the blame rested largely with counsel rather than the appellants. The Court acknowledged that the respondent faced some prejudice due to the delay, particularly emotional stress, but concluded that the evidentiary record, primarily based on expert evidence, remained intact, minimizing prejudice regarding a potential new trial.

The Court held that the appeal was not bound to fail and that in the interests of justice, the appellants should be allowed to proceed. Therefore, the appeal was reinstated, and the appellants were given until March 21, 2025, to file their materials. However, due to the need for this application caused by appellants’ counsel’s delays, the respondent was awarded costs of the application in any event of the cause.