Wadden v. BMO Nesbitt Burns, 2014 NSCA 79

Nova Scotia Court of Appeal Citation: Wadden v. BMO Nesbitt Burns , 2014 NSCA 79 Date: 20140828 Docket: CA 424852 Registry: Halifax Between: Calvin Wadden, Andrea Wadden and 3019620 Nova Scotia Limited Appellants v. BMO Nesbitt Burns Respondent Judge: Farrar, J.A. Motion Heard: August 27, 2014, in Halifax, Nova Scotia in teleChambers Held: Permission to file additional materials to supplement the Appeal Book granted; extension of time to file materials granted.

Counsel: Appellant Calvin Wadden in person, for the appellants Linda Fuerst, for the respondent Decision: [ 1 ] A number of issues arose concerning the filing of the Appeal Books in this appeal. As a result, I convened a telephone conference on August 27, 2014 at 2:00 p.m. for the purposes of addressing the issues raised.

The following are my decisions with respect to each of the matters: • BMO shall be permitted to file a Responding Appeal Book reproducing the following documents that are omitted from the Appeal Book or are illegible: Exhibits 19, 34, 48, 56, 58 and 59 and pages 16, 18-28, 34-50, 61-64, 66-75, 79-84, 86-94 of exhibit 29 BMO Nesbitt Burns’ Amended Statement of Defence amended by Order of Justice Warner on Feb. 4, 2011 Mr.

Dunlop’s Closing Submissions dated May 3, 2012 BMO Nesbitt Burns’ submissions re: joint and several liability for costs dated October 7, 2013 BMO Nesbitt Burns’ costs submissions dated September 20, 2013.

This document is included in the appeal book but not identified in the index. • BMO will be permitted to include in the Responding Appeal Book annotated indices to Exhibits 10, 11 and 12 which includes the tab numbers and Appeal Book pages references; • BMO shall be permitted to file an affidavit in response to the motion to admit fresh evidence; • BMO will be given an extension of time for the filing of its materials, including the response to the fresh evidence motion, to September 22, 2014; • BMO will provide the Court with a letter outlining the documents which have been included in the Appeal Book as filed which were not filed with the trial court or marked as exhibits at trial; • The demand for production at p. 8136 (Volume 12, Tab 8) is not a pleading nor was it ever filed with the Court or marked as an exhibit at trial.

As a result, it should be excluded from the Appeal Book. Mr. Wadden, at the time of the appeal hearing, can make argument to the panel as to why it should form part of the record. [ 2 ] BMO also asks that it be permitted to file a brief of key exhibit and transcript references that will be referred to during oral argument. I advised the parties that I would review this issue with the panel hearing the appeal and advise of the panel’s wishes in due course.

Farrar, J.A.