Olumide v. Nova Scotia (Human Rights Commission), 2021 NSCA 25

Nova Scotia Court of Appeal Citation: Olumide v. Nova Scotia (Human Rights Commission) , 2021 NSCA 25 Date: 20210310 Docket: CA 490899 Registry: Halifax Between: Ade Olumide Appellant v. Nova Scotia Human Rights Commission, Her Majesty The Queen In Right of Nova Scotia, Her Majesty The Queen In Right of Canada Respondents Judge: Wood, C.J.N.S. Motion Heard: Motion by written submission Held: Motion dismissed Counsel: Ade Olumide, self-represented Kendrick Douglas for the Nova Scotia Human Rights Commission Edward A.

Gores, QC, for Her Majesty The Queen In Right of Nova Scotia Melissa Chan, for Her Majesty The Queen In Right of Canada Decision: [ 1 ] Mr. Olumide commenced this proceeding by a Notice of Appeal filed on August 9, 2019. At the same time he designated a mailing address and email for delivery of documents. [ 2 ] On August 26, 2019, the Registrar, in accordance with the Court’s usual practice, sent a letter to Mr. Olumide referencing various resources which might be of assistance to him as a self-represented appellant.

The letter informed him that the Civil Procedure Rules required him to file a motion for date and directions within 80 days which would be December 5, 2019. [ 3 ] Mr. Olumide filed several motions, including one for date and directions, which were set to be heard on December 4, 2019 by telephone. Mr. Olumide did not participate in the hearing. The presiding judge, Justice David P. S.

Farrar, dismissed the motion for date and directions with costs and issued a written decision outlining the reasons for doing so ( 2019 NSCA 95 ). [ 4 ] On February 16, 2021, the Registrar issued a notice of motion to dismiss the appeal pursuant to Civil Procedure Rules 90.43(3) and (4) on the basis that Mr. Olumide had not perfected his appeal within the required 80 day time period. She sent the notice of motion and a memorandum in support of the request and summarizing the procedural history to the parties on February 16, 2021. The materials for Mr.

Olumide were sent by mail and email to the addresses which he had provided to the Registrar in August 2019. Mr. Olumide advised the Registrar by email on February 16 th that he would not be participating in the hearing which was set for March 3, 2021 by telephone. [ 5 ] At the appointed time on March 3, 2021, Justice Carole A. Beaton heard submissions from the Registrar and counsel for the other parties. Mr. Olumide did not participate. Justice Beaton allowed the Registrar’s motion and dismissed the appeal. [ 6 ] On March 8, 2021, Mr. Olumide filed a motion requesting a review under Rule 90.38 which provides:

(1) In this Rule 90.38, (

a) a reference to the “Chief Justice” includes a judge designated by the Chief Justice for the purpose of this Rule;

(b) “party” includes an intervenor under Rule 90.19.

(2) An order of a judge of the Court of Appeal in chambers is a final order of the Court of Appeal, subject only to review under this Rule 90.38.

(3) An order of a judge in chambers that disposes of an appeal may be reviewed by a panel of the Court of Appeal, with leave of the Chief Justice.

(4) A party who requests leave to review an order of a judge must file a notice of motion for leave to review with the Chief Justice and deliver the notice to the other parties to the appeal, no more than seven days after the date of the order to be reviewed.

(5) A party who opposes a motion for leave to review must file with the Chief Justice, and deliver to the other parties, a reply no more than seven days after the date of the filing of the motion for leave to review.

(6) The Chief Justice may do any of the following on a motion for leave to review: (

a) dismiss the motion for leave to review; (

b) set the motion down for hearing; (

c) grant leave to review the order of the judge in chambers if the Chief Justice is satisfied that the judge acted without authority under the rules, or the order is inconsistent with an earlier decision of a judge in chambers or the Court of Appeal, or that a hearing by a panel is necessary to prevent an injustice.

(7) The Chief Justice need not give reasons for the determination of a motion under this Rule.

(8) If leave is granted, the Chief Justice must set a time and date for the hearing of the review before a panel of the Court of Appeal and give directions for the filing of factums and other material.

(9) A judge may not sit as a member of the panel of the Court of Appeal hearing an appeal from the judge’s order.

(10) An order granting leave to appeal under this Rule 90.38 is a final order of the Court of Appeal and is not subject to further review. [ 7 ] Mr. Olumide’s notice of motion requests a review of Justice Beaton’s order issued March 3, 2021 as well as Justice Farrar’s order of December 4, 2019. This latter order did not dispose of the appeal and is, therefore, not eligible for review under Rule 90.38(3). The only order which I can consider is the one of March 3, 2021. [ 8 ] In American Holdings 2000, Inc. v.

Royal Bank of Canada , 2019 NSCA 82 , I outlined the factors to be considered in deciding whether to grant leave for a review under Rule 90.38. In most cases, a request for review of a chambers decision is accompanied by additional evidence which was not before the chambers judge. That is not the situation here. Mr. Olumide did not file an affidavit in support of his motion.

As I noted in American Holdings , a review, particularly in the absence of new evidence, should not be readily granted: [21] I acknowledge that there could be some circumstances where leave to review should be granted even though new evidence is not provided in support of the review motion. These include where the decision was made without jurisdiction, conflicts with existing jurisprudence, or is one of those rare and exceptional cases where the deficiency in the chambers decision is readily apparent and of such significance that a miscarriage of justice might result if a review does not occur.

This philosophy can be found in the decision in R. v. Mercier , 2011 NSCA 58 : [32] It is clear from Justice Beveridge’s decision that he acted within the authority of the Rules and that his decision is not inconsistent with an earlier decision of a Chambers judge or the Court of Appeal in the context of denying leave to extend time to appeal, which are the first two considerations the Chief Justice must address when deciding whether to grant leave (sub-Rule 6(

c) of 90.38). Ultimately then, the question for the Chief Justice would be whether leave is necessary to “prevent an injustice”. As informed by Marshall and Liberatore , that means a finding of “exceptional circumstances”. Examples include: (

a) A patent error on a material point in a decision which leave is sought to review; (

b) The decision was decided on a point that the parties had no opportunity to address. (

c) The Chambers judge clearly overlooked or misapprehended the evidence or the law in a significant respect and there is consequently a serious risk of a miscarriage of justice. [ 9 ] In this case, despite Mr. Olumide’s decision not to attend, Justice Beaton carefully considered the circumstances in deciding to grant the Registrar’s motion. She concluded that an extension of 15 months beyond the original deadline for the motion for date and directions was reasonable for completion of that step in the proceeding. In addition, Mr.

Olumide was aware of the hearing and chose not to participate to explain why the appeal should not be dismissed. [ 10 ] Mr. Olumide’s materials filed in support of the request for a review does not say why he refused to attend the March 3 rd hearing or provide any reason for failing to perfect his appeal by making a motion for date and directions. [ 11 ] Based on Mr. Olumide’s submissions and the rest of the file materials, I conclude that a review of Justice Beaton’s decision by a panel of this Court is not necessary to prevent an injustice. As a result, Mr. Olumide’s motion under Rule 90.38 is dismissed.

Wood, C.J.NS.