Canadian Imperial Bank of Commerce v. Ofume

Canadian Imperial Bank of Commerce v. Ofume Court Court of Appeal Date 2005-03-01 Citation 2005 NSCA 42 Docket CA 227447 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Ofume v. Canadian Imperial Bank of Commerce, 2005 NSCA 42 Date: 20050301 Docket: CA 227447 Registry: Halifax Between: Dr. Philip Ofume Appellant v. Canadian Imperial Bank of Commerce (CIBC) Mortgage Corporation Respondent Judge: The Honourable Justice Thomas Cromwell Application Heard: February 24, 2005, in Halifax, Nova Scotia, in Chambers Held: Application dismissed. Counsel: Appellant, in person Wayne Francis, for the respondent Decision: [1] This appeal was on the Registrar’s motions list because it has not been perfected within four months of the filing of the notice of appeal. The appellant, Dr. Ofume, appeared in person to request that the appeal not be dismissed while counsel for the respondent bank urged me to dismiss the appeal for non-perfection. [2] The background is somewhat complicated. The respondent bank foreclosed the mortgage on the appellant’s former residence. Apparently the foreclosure order awarded costs to the Bank to be taxed. The taxation was held and a decision issued. Dr. Ofume filed an appeal from the taxation to the Supreme Court and the appeal came before Warner, J. on June 9, 2004. Dr. Ofume did not attend the appeal and Warner, J. dismissed it on the basis that the notice of appeal had been filed outside the prescribed time period. [3] Dr. Ofume then sought a review of Warner, J.’s order in Supreme Court Chambers. The matter came before Goodfellow, J. who dismissed the application. Goodfellow, J. held that he had no jurisdiction to vary Warner, J.’s order and that Dr. Ofume’s only remedy, if any, was in the Court of Appeal. Dr. Ofume then filed a lengthy document with this Court entitled “Notice of Appeal” on August 3rd, 2004. Of course, by then, the time for appealing Warner, J.’s order had expired. Dr. Ofume also filed a certificate respecting preparation of the appeal book dated August 3, 2004, indicating that he expected to have the appeal book completed and ready for filing by November 30, 2004. [4] The matter came before Hamilton, J.A. in Court of Appeal Chambers on August 26th, 2004. Hamilton, J.A. extended the time for filing the notice of appeal to August 3rd, but dismissed Dr. Ofume’s applications for a stay pending appeal and for production of tapes of the proceedings before the taxing master and various documents. Hamilton, J.A. did not set the appeal down and adjourned the matter to December 2, 2004. [5] On September 7th, 2004, Dr. Ofume wrote to Hamilton, J.A. requesting copies of her order, decision and reasons in relation to the production of material and refusal to set the appeal down for hearing for the purposes of Dr. Ofume initiating an appeal in relation to those matters to the Supreme Court of Canada. He was advised by the Registrar that Hamilton, J.A. had not prepared written reasons with respect to the two matters referred to in his correspondence and that if he wished to receive the oral reasons given in Chambers he could request the tapes and have them transcribed. [6] On December 2nd, 2004, the return date set by Hamilton, J.A., counsel for the respondent bank attended before Roscoe, J.A., but Dr. Ofume did not appear. [7] No further steps were taken in this file until the Registrar brought the application to dismiss the appeal for failure to perfect it. [8] The notice of appeal filed by Dr. Ofume appears to relate both to the order of Warner, J. and the order of Goodfellow, J. [9] From my perusal of the Supreme Court file, the situation appears to be as follows. [10] Warner, J. decided that the appellant’s appeal from the taxation had been filed out of time because the copy of the taxation decision had been mailed to him by ordinary mail on April 27th, 2004. The address for mailing recited in Warner, J.’s order is 310 Amin Street, Bedford, Nova Scotia, B4A 473, Apartment 11. The notice of appeal from the taxation not having been filed until May 26th, 2004, the appeal was filed considerably outside the 10 day time limit prescribed in Rule 63.38. Dr. Ofume was not present when Warner, J. considered the matters in Chambers on June 9th, 2004. His order recites that he had been advised that Dr. Ofume had been present in the court house prior to the 11 o’clock time indicated for the appeal but was not present in the court room at 11:27. [11] Dr. Ofume then sought a review of this order before Goodfellow, J. On that application, Dr. Ofume’s affidavit evidence made essentially two points. [12] First, he said that on June 9th, 2004, there had been a power failure in The Law Courts building, that upon his arrival the court room was locked and that he sat in a witness room on the 7th floor until 12:35 when a staff member advised him that the building was being evacuated. [13] Second, Dr. Ofume indicated that the mailing address recited in Warner, J.’s order was incorrect and that his correct address is 11 Amin Street, Apt. 310, Bedford, Nova Scotia, Canada, B4A 4E3. In the Supreme Court file, there is what appears to be a copy of a note received from the taxing master in which the address as set out in Warner, J.’s order was stated to be the one to which a copy of the taxation decision was to be mailed. There is also an affidavit of a court officer that the decision was mailed to that address. It is also fairly clear from a review of the file that the address was incorrect and that the street address and unit number were reversed (310 Amin St., #11 instead of 11 Amin St., # 310) and that the postal code was incorrectly set out. To the best of my knowledge, no postal code in Canada has three numbers as its second component as did the postal code used to mail the taxation decision to Dr. Ofume. [14] Dr. Ofume placed affidavit evidence with respect to these matters before Goodfellow, J. on the application for a review of Warner, J.’s order. Goodfellow, J., as noted, did not address the merits or otherwise of Dr. Ofume’s complaints but held that he had no jurisdiction. While I would certainly not wish to express a final opinion on the point, it seems to me, with great respect, to be at least arguable that Goodfellow, J. had a discretion under Rule 37.11 because, in substance, he was dealing with Dr. Ofume who claimed to be a party who had failed to appear on the appeal of the taxation through accident, mistake, insufficient notice or other just cause. Of course whether Dr. Ofume’s explanation for his absence is accepted is not a question I can or need to resolve here. [15] I refer to these matters simply for the purpose of observing that the appeal to this Court in relation to both the orders of Warner, J. and Goodfellow, J. are at least arguable. Warner, J.’s order was premised on Dr. Ofume’s appeal having been filed late which, in turn, depended on his having received a copy of the taxation decision by ordinary mail. However, there is now evidence in the file that the decision was misaddressed. Goodfellow, J.’s refusal to interfere with Warner, J.’s order was premised on his conclusion that he had no jurisdiction to do so when it may be arguable that he did pursuant to Rule 37.11(2). Of course, I cannot and do not express any final opinion on these points. [16] In my view, it would not be in the interests of justice to dismiss this appeal for non perfection. However, given the history in this file, I will dismiss the Registrar’s application to dismiss the appeal on very strict terms. Those terms are the following: 1. Dr. Ofume will, no later than 4 p.m. on March 18th, 2005, file the appeal book in this matter; 2. The appeal book will contain the following and, subject to the order of a judge, only the following material: (i) an index of the documents; (ii) the notice of appeal in this Court; (iii) the order of Warner, J.; (iv) the order of Goodfellow, J.; (v) the reasons of Goodfellow, J.; (vi) the notice of appeal from the taxation date stamped May 26th with the attachments; (vii) the affidavit of Lillian Fraser, sworn June 9th, 2004; (viii) the affidavit of Wayne Francis sworn June 7th, 2004; (ix) the application for review of the order of The Honourable Gregory Warner in Chambers date stamped July 12, 2004; (x) the affidavit in support of the application of the applicant for review of the order of The Honourable Gregory Warner date stamped July 12, 2004; 3. Dr. Ofume will file the appellant’s factum on or before Thursday, March 24th at 4 p.m. and will apply to the Chambers judge in the Court of Appeal no later than Thursday, March 31st at 10 a.m. for an order setting the appeal down for hearing. He must give proper notice of his application to set the appeal down for hearing. 4. In default of any one of these conditions, the respondent bank may apply, without further notice to Dr. Ofume, for an order dismissing the appeal. [17] The costs of this Registrar’s motion will be within the discretion of the panel hearing the appeal if it is perfected and heard and within the discretion of the judge dismissing the appeal for failure to comply with these conditions in the event that Dr. Ofume does not abide by these conditions. Cromwell, J.A.