Smith v. Stead, 2013 NSCA 57

NOVA SCOTIA COURT OF APPEAL Citation: Smith v. Stead, 2013 NSCA 57 Date: 20130502 Docket: CA 390690 Registry: Halifax Between: Gerrick Smith Appellants v. Leonard Stead Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Motion Heard: May 2, 2013, in Halifax, Nova Scotia in Chambers Written Release: May 6, 2013 Held: Registrar’s motion to dismiss appeal granted.

Counsel: Appellant not appearing Respondent not appearing Decision: (Orally) [ 1 ] This case comes before me in Chambers this morning in the form of a Registrar’s motion to dismiss the appeal because of a failure to “perfect” it pursuant to Civil Procedure Rule 90.43(3) and (4). The approach I take in such matters is that once I am satisfied the deadlines prescribed under the Rules have elapsed; that the Registrar’s action is well-founded; and that all interested parties have been properly notified; the onus shifts to those who would be adversely affected to persuade me that their appeal should not be dismissed.

Islam v. Sevgur , 2011 NSCA 114 . [ 2 ] Having reviewed the record I am satisfied that all of these requirements have been met and that therefore it now falls to the appellant or other interested party to persuade me that there are good and sufficient reasons to decline the Registrar’s motion. [ 3 ] This morning no one appeared on behalf of the appellant to ask that I not grant the Registrar’s motion. [ 4 ] The facts of this case are unusual to say the least. On April 11, 2012, the appellant Mr. Gerrick Smith attempted to file what

purported to be a notice of appeal which he said related to his having been wrongfully charged by the Halifax Police with a driving offence said to have occurred on December 15, 1984 and which he says led to his being named as a defendant in a judgment obtained against him by Judgment Recovery (N.S.) Limited granted by Justice F.B. William Kelly in the amount of $13,213.62 (1986 S.H. No. 52602). In simple terms the thrust of Mr.

Smith’s appeal seems to be that he was set up by the respondent Leonard Stead who Smith says dropped his bicycle in a crosswalk on Mount Edward Road in Dartmouth and lay down to fake an injury. Mr. Smith says he was a back seat passenger in a truck driven by his father Merlin Smith, Sr. and that when later met by the police at the Dartmouth General Hospital and asked to produce his driver’s license he did so but told the officers that he was not driving at the time. According to Mr.

Smith it was not until January 15, 1985 when he went to renew his driver’s license that he was told he could not because he had been involved in an accident. [ 5 ] As the Registrar’s records show, he applied in Chambers on April 26, 2012 to extend the time to file his notice of appeal. That motion was adjourned without day by my colleague Justice Hamilton, since the respondent could not be located to be served. The appellant then made a motion for substituted service, returnable July 19, 2012.

My colleague Justice Beveridge dismissed that motion. [ 6 ] The appellant has not perfected his motion, let alone his appeal, and thus the Registrar has made her own motion to dismiss this appeal pursuant to Civil Procedure Rule 90.43(3) and (4), returnable on today’s date. Her motion was sent to the appellant by both regular and registered mail. The letter sent by regular post was not returned. The letter sent by registered mail was returned to sender.

Because her correspondence was sent to the appellant’s designated address for delivery, he is deemed to have received it on April 10, 2013, by virtue of Civil Procedure Rule 31.16(3). As a courtesy, on April 26, 2013, the Registrar also tried calling the appellant at the two telephone numbers he had provided. His work number was no longer in service. The other number yielded a voicemail and the Registrar left a message for Mr. Smith asking him to return her call. She never heard back from him. [ 7 ] Based on this record I am persuaded that I ought to exercise my discretion by dismissing the appeal. So ordered.

Saunders, J.A.