Ezurike v. Gbeve, 2023 NSCA 27

Nova Scotia Court of Appeal Citation: Ezurike v. Gbeve , 2023 NSCA 27 Date: 20230419 Docket: CA 521510 Registry: Halifax Between: Chinedu Ezurike Applicant v. Selom Angela Gbeve Respondent Judge: Wood C.J.N.S. Motion Heard: Motion by written submission ( Civil Procedure Rule 90.38) Held: Motion dismissed, without costs. Counsel: Chinedu Ezurike, applicant Selom Angela Gbeve, respondent Decision: [ 1 ] By decision and order dated March 30, 2023, Justice Peter Bryson dismissed Mr. Ezurike’s motion for an extension of time to file his appeal ( 2023 NSCA 23 ).

The proposed appeal relates to a Corollary Relief Order issued on December 5, 2022 by Justice Samuel Moreau of the Nova Scotia Supreme Court (Family Division). [ 2 ] When a judge in chambers issues an order which has the effect of disposing of an appeal, a party may request the order be reviewed by a panel of the Court with leave of the Chief Justice. Dismissal of a motion for extension of an appeal period triggers this potential procedure. The role of the Chief Justice and the criteria to be applied in determining whether to direct a review by a panel of the Court is set out in Marshall v.

Truro (Town) , 2009 NSCA 89 where MacDonald, C.J.N.S., said: [8] With this backdrop, I must consider the Chief Justice’s role as prescribed under Rule 90.38. First, let me briefly review the process involved in seeking leave under Rule 90.38(3) . Commencing the process is straight forward. The party seeking leave within prescribed time lines must file a notice of motion with the Chief Justice to which the opposing parties may file a reply, also within prescribed time lines. I then may dismiss the motion based solely on the material filed or should oral submissions be in order, set the motion down for hearing.

I expect that in most instances, as in this case, the filed materials would suffice and the need to call a hearing would be exceptional. In any event, following my review, I may dismiss the motion or grant leave. Here again are the relevant provisions:

(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. [9] When then should such motions be granted? As noted above, Rule 90.38(6)(

c) contemplates three situations. The first two are straight forward; namely when the judge acted without authority or contrary to existing jurisprudence. The third situation - to prevent an injustice - is much more general and requires some elaboration. [10] It occurs to me that to warrant a review by a panel of this court, an aggrieved party must present a highly compelling case. In other words, the potential for injustice must be clear and significant. Furthermore, one must presume that any potential injustice would have been obvious to the judge who granted the order under review.

Therefore, I would expect to grant such relief only in very exceptional circumstances. Otherwise, this provision might be simply viewed as an opportunity for a rehearing; a consequence that would be clearly unintended and unnecessary. In fact, it would be ill advised to allow such a provision to serve as an opportunity for a rehearing. Indeed, courts in similar contexts have discouraged such approaches. [ 3 ] In this proceeding, there is no suggestion that Justice Bryson acted without authority or that his decision is inconsistent with another decision of a judge or the Court. The issue here is whether Mr.

Ezurike has demonstrated that a review hearing by a panel is necessary to prevent an injustice. This requires a highly compelling case. It is not intended to give the applicant an opportunity to repeat the same arguments which were unsuccessful before the chambers judge. [ 4 ] In his request for a review, Mr. Ezurike raises four points which can be summarized as follows: 1. Justice Bryson misunderstood his explanation concerning when he formed the intention to appeal and first took formal steps to do so. 2.

Justice Bryson was incorrect in saying he had taken no steps to pay child support when he had, in fact, been in contact with the Maintenance Enforcement Program. 3. Justice Bryson noted Mr. Ezurike had not transferred the motor vehicle as ordered by Justice Moreau; however, Mr. Ezurike explained this was because the vehicle was not in his possession. 4. Justice Bryson was wrong to say he could have understood the steps and time for filing an appeal by accessing the court website. Mr.

Ezurike said he could not do so because of his limited computer skills and lack of proficiency in English. [ 5 ] I have reviewed the materials filed by Mr. Ezurike in relation to the motion for an extension of the appeal period and the materials filed in support of the motion for a review. In addition, I have listened to the recording of the hearing before Justice Bryson. It is obvious that Justice Bryson carefully explained the process to be followed and Mr. Ezurike understood what was required.

He was able to answer questions posed and did not request clarification or otherwise indicate any confusion or lack of comprehension. [ 6 ] Justice Bryson’s statement in his decision that Mr. Ezurike took no formal steps to initiate an appeal until February 24, 2023, is factually correct. Mr. Ezurike told Justice Bryson he contacted the Court in January to obtain information about initiating an appeal. According to the submissions by Mr. Ezurike, this took place after the expiry of the appeal period.

Nothing was filed with the Court until February 24 th . [ 7 ] With respect to non-payment of child support, Justice Bryson acknowledged in his decision that Mr. Ezurike said he had been in contact with the Maintenance Enforcement Program. His comment that no payment had yet been made was accurate according to the information provided by Mr. Ezurike at the hearing. [ 8 ] Before Justice Bryson, Mr. Ezurike said he had the necessary paperwork to transfer the motor vehicle but did not know how to complete it. Mr. Ezurike did not suggest that the vehicle being in the possession of Ms.

Gbeve was an impediment to the transfer. [ 9 ] Mr. Ezurike’s argument that he was unable to access information on the Court website due to language and technical deficiencies was made to Justice Bryson, who rejected this. Mr. Ezurike had been living and working in Canada for many years and indicated he had friends and acquaintances who could assist him with the appeal. [ 10 ] I am satisfied the arguments made by Mr. Ezurike in support of this motion for a review hearing are simply variations on the arguments made before Justice Bryson. There is no new information provided.

The decision whether to extend an appeal period is discretionary, and Justice Bryson’s decision demonstrates that he carefully considered the relevant principles and the circumstances before him. [ 11 ] Mr. Ezurike has not demonstrated that a review hearing is required in order to prevent an injustice and I, therefore, dismiss his motion for leave to review Justice Bryson’s decision. Since Ms. Gbeve did not respond to the motion the dismissal is without costs. Wood C.J.NS.