Ofume v. Radio Shack InterTan Canada Ltd.

Ofume v. Radio Shack InterTan Canada Ltd. Court Court of Appeal Date 2005-09-16 Citation 2005 NSCA 119 Docket CA 245177 Judge/Registrar/Adjudicator Oland, Linda L. (Honourable Justice) Document Type Decision Relations See also - Ofume v. Radio Shack InterTan Canada Ltd. - 2005 NSCA 79 - 2005-05-04 - Decision See also - Ofume v. Radio Shack InterTan Canada Ltd. - 2005 NSCA 92 - 2005-06-10 - Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Ofume v. Radio Shack InterTan Canada Ltd., 2005 NSCA 119 Date: 20050916 Docket: CA 245177 Registry: Halifax Between: Phillip Ofume Applicant/Appellant v. Radio Shack InterTan Canada Limited and Associates Financial Service of CDA and Nor-Don Collection Network Inc. and World Wide Furniture Limited, a body corporate Applicant/Respondents Judge: Justice Linda Lee Oland in Chambers Application Heard: September 15, 2005 in Halifax, Nova Scotia Held: Application for dismissal of appeal granted with costs. Counsel: Phillip Ofume applicant/appellant appearing on his own behalf Andrew Inch for the applicant/respondent, Radio Shack InterTan Canada Limited Emad Al-Sharief, Articled Clerk, for the applicant/respondent, Nor- Don Collection Network Inc. Sara Scott for the applicant/respondent, Associates Financial Service of CDA David Coles for the respondent, World Wide Furniture Limited, not appearing Decision: [1] Two applications on this matter were brought in Chambers yesterday. Radio Shack InterTan Canada Limited on behalf of itself, Associates Financial Service of CDA and Nor-Don Collection Network Inc. applied for an order dismissing Dr. Ofume’s appeal on account of his failure to comply with Rule 62.17 for perfecting an appeal and as ordered by Saunders, J.A. on June 10, 2005. Dr. Ofume applied for joinder pertaining to the respondent Radio Shack. For the reasons which follow, I would dismiss the appeal. It is not necessary that I decide the application pertaining to joinder. [2] The application brought by Radio Shack is the second time such an application has been made in this proceeding. When it was first made in June 2005 Justice Saunders refused to dismiss the appeal for non-perfection. His decision (2005 NSCA 92) stated that it seemed that “notwithstanding his considerable experience before this and other courts,” Dr. Ofume may not have understood that his failure to perfect and file in accordance with the Rules would result in an automatic forfeiture of his appeal. Justice Saunders ordered the appeal book and appellant’s factum as filed, destroyed for non-compliance with the Rules. He gave Dr. Ofume a new deadline for filing, which followed receipt of Radio Shack’s list of objections to which Justice Saunders indicated his concurrence. He directed Radio Shack to file the list with the Registrar from whose office the appellant could retrieve it. All this was done, in the words of Justice Saunders, as “a courtesy to the appellant”. [3] His Order of June 10, 2005 read in part: AND IT IS FURTHER ORDERED that the appellant will, on or before Friday, July 29, 2005 file an Appeal Book and an Appellant’s Factum in proper form, in compliance with the Civil Procedure Rules, failing which the appeal will stand dismissed without further notice, thereby entitling the respondents to apply to a judge of this court sitting in chambers for their costs, if so advised; AND IF IS FURTHER ORDERED that nothing in this order will preclude the respondents from applying before me in chambers on September 8, 2005, or thereafter to another judge of this court, to strike the appeal, or to strike any ground thereof, or to seek such other forms of relief as may be appropriate. [4] Radio Shack filed the list of objections as directed. Dr. Ofume obtained it from the Registrar’s office on June 21, 2005 and filed his appeal book and factum within the time stipulated. [5] Radio Shack now applies pursuant to Rule 62.17 for an order dismissing the appellant’s appeal with costs, on the basis that Dr. Ofume has failed to file an appeal book and appellant’s factum in the proper form, in compliance with Rule 62 and the directions ordered by Justice Saunders. [6] The appeal book filed by the appellant does not contain items which the list of objections approved by Justice Saunders clearly stipulated were to be included - for example, the decisions of Justice Nathanson dated January 28, 2005 and April 19, 2005. Moreover, it contains material which the listing specified was not to be included - for example, documents pertaining to a motion for stay of execution made by the appellant. It also contains decisions, orders, correspondence, submissions and other material other than in that listing. As to the factum, the deficiencies in the factum range from minor ones, such as the spacing of the lines and lack of an index, to the more significant, such as very extensive argument contained within the statement of facts and lack of complete citations. [7] The list which was provided to Dr. Ofume, as a courtesy and for his assistance, detailed in an organized fashion exactly what items were to be included in the appeal book and several which were to be excluded. Neither it nor the decision and order of June 10, 2005 could have been clearer. [8] Nevertheless, the appeal book as filed fails to contain material which the list stipulated, including a decision which is the very subject of the appeal. Morever, it incorporates material which the list approved by Justice Saunders expressly identified as not to be included. The appellant did not appeal the June 10, 2005 decision and order. Nor, in the period between his receipt of the list and the date of this second application, did he bring to the court’s attention any difficulty with obtaining any of the material missing from the appeal book. [9] In responding to Radio Shack’s application in Chambers yesterday, Dr. Ofume submitted that the issue was whether it was the responsibility of the respondents to give directions as to the contents of the appeal book and factum, merely to please themselves, or whether it was for the appellant to so determine. In his view, adherence to the list of objections, both as to what was to be included and what excluded, would serve to weaken his case on appeal. While acknowledging that this is a court of review, he had decided that the missing decisions were not necessary for his appeal. Similarly, he had decided that the material included in the appeal book, contrary to the list approved by Justice Saunders, was necessary. Dr. Ofume seemed to refuse to accept that the Rules and Justice Saunders’ decision and order applied to the contents of the appeal book and factum. He insisted that the list was the work of the respondents for their own purposes and that he was entitled to file whatever, in his view, would benefit his appeal. [10] I would reject Dr. Ofume’s submissions and would grant Radio Shack’s application. Justice Saunders’ decision and order were intended to assist the appellant to avoid filing, for the second time, materials which were incomplete, irrelevant or improper. From the appeal book and factum he has filed and his submissions in Chambers, it is apparent that Dr. Ofume has deliberately chosen to disregard the Rules and the directions set out in that decision and order. He has been wilful in his determination not to follow them, despite the clearly identified consequence of automatic dismissal of his appeal. [11] In my view, the appellant has failed to file an appeal book and factum in proper form, in compliance with Rule 62, and the June 10, 2005 decision and order. Accordingly his appeal is dismissed. [12] As indicated at the outset of this decision, Dr. Ofume brought an application for joinder. Relying on his own research and investigations and what he has seen on signage and receipts, he submitted that Radio Shack had been purchased by another entity, whose name does not appear in the style of cause and who thus might escape liability. His appeal having been dismissed, I need not decide this application. [13] This being the second application for dismissal of the appeal, I would award costs of $900. including disbursements, payable by the appellant to Radio Shack forthwith. Oland, J.A.