Ofume v. Vukelich

Ofume v. Vukelich

The applicants discharged the onus to rebut the sworn affidavits by proving on a balance of probabilities that the alleged personal service did not occur (witness evidence and contemporaneous bank/travel records), the affidavits were deliberate misrepresentations, and the conduct amounted to abuse of process; therefore the affidavits were struck, declaration made of no personal service, costs awarded and protective sanctions imposed including a stay and prohibition on the representative acting further.

Citation
2002 NSSC 9
Parties
Plaintiff/respondent: Maureen Ofume; Defendant/applicant: Goranka Vukelich; Defendant/applicant: Sue Wolstenholme; Defendant/applicant: St. Joseph’s College of Early Childhood Education (a body corporate); Defendant/applicant: Chris Rafuse
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
11 January 2002
Procedural Posture
Originating Notice Action (civil) / Application to Strike Affidavits of Service (chambers Decision)
Outcome
Application granted: affidavits of service struck; declaration that individual defendants were not personally served; costs awarded; stay imposed until costs paid; prohibition on representative.
Legal Topics
Service of Process, Affidavits of Service, Onus of Proof, Abuse of Process, Costs, Stay, Representative Conduct
Source Language
English
Civil Procedure Civil Litigation Judicial Review/remedies Service of Process Affidavits of Service Onus of Proof Abuse of Process Costs +2 more

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Parties

Maureen Ofume

Plaintiff/respondent

Goranka Vukelich

Defendant/applicant

Sue Wolstenholme

Defendant/applicant

St. Joseph’s College of Early Childhood Education (a body corporate)

Defendant/applicant

Chris Rafuse

Defendant/applicant

Procedural Posture

Originating Notice Action (civil) / Application to Strike Affidavits of Service (chambers Decision)

Legal Issues

  1. 1 Whether personal service was effected on each individual defendant
  2. 2 Whether the affidavits of service sworn by Dr. Phillip Ofume are truthful and comply with Civil Procedure Rules
  3. 3 Allocation of onus to rebut a sworn affidavit of service

Ratio Decidendi

The applicants discharged the onus to rebut the sworn affidavits by proving on a balance of probabilities that the alleged personal service did not occur (witness evidence and contemporaneous bank/travel records), the affidavits were deliberate misrepresentations, and the conduct amounted to abuse of process; therefore the affidavits were struck, declaration made of no personal service, costs awarded and protective sanctions imposed including a stay and prohibition on the representative acting further.

Court Disposition

Application granted: affidavits of service struck; declaration that individual defendants were not personally served; costs awarded; stay imposed until costs paid; prohibition on representative.

Orders

  • Application granted with a Declaration that the individual named Defendants have not been personally served.
  • The Affidavits of Service filed by Dr. Phillip Ofume are struck.