Citation: 2012TCC157
Date: 20120511
Docket: 2009-719(IT)G
BETWEEN:
CHRISTOPHER J. ROPER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb J.
[1]
This matter has a long
history. The Appellant, who is a lawyer, filed his notice of appeal on February
20, 2009. A demand for particulars was made by the Respondent and the Appellant
requested three extensions of time to provide his answers. Eventually the
Appellant provided his answers on July 16, 2009. A Reply was filed on August
24, 2009.
[2]
The parties agreed upon
certain dates for the completion of various steps in the litigation and an
Order of Justice Jorré dated February 2, 2010 was issued to reflect these
agreed upon dates. In particular the Order provided that the parties were to
file and serve lists of documents by April 1, 2010. The Respondent filed and served
a list of documents on April 1, 2010 but the Appellant did not file a list of
documents by April 1, 2010.
[3]
The parties appeared
before Justice Archambault on August 30, 2010 as a result of a motion brought
by the Respondent to dismiss the Appellant’s appeal following the failure of
the Appellant to comply with the Order that had been issued by Justice Jorré.
[4]
The motion to dismiss
the Appellant’s appeal was denied and the Appellant was ordered to prepare a
list of documents and serve the list on the Respondent by September 13, 2010.
The Appellant served his list of documents a day late – September 14,
2010. September 13, 2010 was a Monday and no explanation was provided for the
late service of the list of documents. The only documents on the Appellant’s
list of documents were copies of his tax returns for 2001 (for the
post-bankruptcy period) and for 2002.
[5]
In the Order that was
issued by Justice Archambault (which was dated September 13, 2010), it was
noted that:
Failure by the Appellant to comply with the present order may result
in the Respondent filing a motion to dismiss Appellant’s appeal and this motion
could be granted by this Court.
[6]
The Respondent
requested that the Appellant’s appeal be dismissed for failure to comply with
the Order of Justice Archambault, first by a letter and later by a motion.
[7]
Justice Boyle heard the
Respondent’s motion on February 7, 2011 and dismissed this motion. As part of
the Order issued by Justice Boyle, he provided that the Appellant could, until
February 18, 2011, add to his list of documents and he ordered the Appellant to
pay costs of $1,000 on or before March 9, 2011.
[8]
On February 18, 2011
the Appellant sent a list of documents to counsel for the Respondent and on
March 9, 2011 the Appellant sent a cheque for $1,000. This cheque was later
returned for insufficient funds.
[9]
While the Respondent
was requesting a hearing of the appeal the Appellant was requesting a
pre-hearing conference. The Appellant’s request for a pre-hearing conference
was denied and the appeal was set down for hearing on September 29, 2011.
[10]
On September 27, 2011
the Appellant requested that the hearing scheduled for September 29, 2011 be
adjourned to allow him to retain counsel. The parties appeared before Associate
Chief Justice Rossiter on September 29, 2011. Associate Chief Justice Rossiter
granted the Appellant’s request for an adjournment. He rescheduled the hearing
for February 16, 2012. He also ordered the Appellant to pay costs of $3,500 by
November 30, 2011.
[11]
On November 30, 2011
the Appellant sent a cheque to counsel for the Respondent in the amount of
$3,500. This cheque was later returned because the account on which it had been
drawn was closed.
[12]
On the date scheduled
for the hearing of the Appellant’s appeal, February 16, 2012, the parties
appeared before Justice Jorré. Counsel for the Appellant sought to introduce
documents that were not included in the Appellant’s list of documents.
[13]
The appeal was
adjourned. In the Order issued by Justice Jorré dated February 21, 2012 he
recited some of the lengthy history. He provided in the Order that the
Appellant was to pay costs in the amount of $5,500 by March 16, 2012. He also
provided that if any of the costs of $1,000 awarded by Justice Boyle or $3,500
awarded by Associate Chief Justice Rossiter were unpaid, they were also to be
paid by March 16, 2012. All of the costs were to be paid by certified cheque.
[14]
The Order also stated
that:
6. if the costs are not paid on or before March 16, 2012, the appeal
shall be dismissed on application by the respondent with a supporting
affidavit.
[15]
The Appellant did not pay
the amount of $10,000 by March 16, 2012 and the Respondent brought this motion
to request that the Appellant’s appeal be dismissed. After the Respondent
brought this motion the Appellant paid the amount of $10,000.
[16]
During the hearing of
this motion it became clear that the Appellant is encountering severe financial
difficulties and has been experiencing such difficulties for some time. He does
not have a house, a car, any savings or any tangible assets. He was evicted
from the condominium that he was renting. He moved to another condominium in
the same building (that he is also renting) and is in arrears for the payment
of rent for this unit. He has lost staff at his law practice because of his
inability to pay his debts. Although it is not clear when his financial
problems began it appears that at least since October of 2011 he has been
unable to pay his debts as they become due. He tried to borrow the $10,000 from
family members to pay the costs that were to be paid by March 16, 2012 but was
unable to do so. He eventually was able to borrow the $10,000 in a private
transaction.
[17]
Prior to this motion,
there does not appear to have been any indication by the Appellant that he was
experiencing severe financial problems. At the hearing on February 16, 2012
(following which the Order dated February 21, 2012 was issued requiring him to
pay the $10,000 in outstanding costs by March 16, 2012) there was no indication
by the Appellant that he would not be able to pay the $10,000 by March 16,
2012.
[18]
It is too late at a
hearing, following the failure of the Appellant to pay the $10,000 by March 16,
2012, for the Appellant, for the first time, to raise the issue of his
inability to pay this amount by that date when his financial difficulties began
several months before he was ordered to pay this amount. The Appellant is a
lawyer and therefore would understand clearly the consequences of failing to
comply with a clear order of this Court. The Order of Justice Jorré is clear
that the Appeal would be dismissed if the Appellant did not pay the outstanding
cost awards of $10,000 by March 16, 2012. The Appellant did not pay this amount
by March 16, 2012 and therefore as provided in the Order of Justice Jorré,
his appeal is dismissed.
[19]
Counsel for the
Respondent also asked for additional costs. However, since the Respondent has
already been awarded costs of $10,000 (which have now been paid) in a matter in
which the appeal has not been heard, no additional costs will be awarded.
[20]
As a result the
Respondent’s motion requesting that the Appellant’s appeal be dismissed, is
granted, without costs, and the Appellant’s appeal is dismissed.
Signed at Halifax, Nova
Scotia, this 11th day
of May 2012.
“Wyman W. Webb”
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