Executive Summary: Key Legal and Evidentiary Issues

• Timeliness of filing appeals from Small Claims Court decisions was a central issue.

• Limitation periods for claims regarding alleged destruction or disposal of personal property determined the outcome.

• The appellant did not establish a bona fide intention to appeal within the required timeframe.

• Justification for the delay in filing appeals, including incarceration, was not accepted as reasonable.

• No persuasive case for error or real grounds of appeal were identified.

• The court declined to exercise discretion to extend the time for appeal and dismissed the applications without costs.

Facts of the case

Brandon Barnaby filed a Notice of Motion seeking an extension of time for filing an appeal in two matters from decisions of the Small Claims Court filed on April 15, 2024 (SCCH 523446 Phoenix House and SCCH 523445 Salvation Army). Both motions were heard at the same time with the consent of the parties. The Small Claims Court decisions addressed whether Mr. Barnaby’s claims for damages, resulting from the alleged destruction or disposal of his personal property by the respondents, were barred by a limitation period.

In the Phoenix House matter, the adjudicator determined that Mr. Barnaby discovered the possible claim on January 11 or 12, 2013. He filed his claim with the Small Claims Court on May 4, 2023, long after the limitation period expired on September 1, 2017. The adjudicator determined the claim was barred by the passage of time and dismissed the claim.

In the Salvation Army matter, the adjudicator determined that Mr. Barnaby discovered the possible claim by August 15, 2015. He filed the claim with the Small Claims Court on May 4, 2023, long after the limitation period expired on September 1, 2017. The adjudicator determined that the claim was barred by the passage of time and dismissed the claim.

Appeal procedure and extension request

Section 22(2) of the Small Claims Court Forms and Procedures Regulations required that an appeal be commenced “not later than 30 days after the adjudicator’s order or determination is filed,” which would have been not later than May 15, 2024, in these cases. Subsection 22(12) provides that noncompliance does not render a proceeding void, but the proceeding may be amended, set aside as irregular, or otherwise dealt with as the Court may direct. Neither the Small Claims Court Act, the Regulations, nor the Nova Scotia Civil Procedure Rules provide guidance on how a judge should exercise discretion to grant an extension of time in the context of a Small Claims Court appeal.

Court’s assessment and outcome

The court found that the affidavit evidence filed by Mr. Barnaby did not establish a bona fide intention to appeal the adjudicator’s decision. Evidence from Phoenix House indicated that a correction’s officer requested information on how to appeal the decision at the time of receipt, and it was reasonable to infer that this information was passed along to Mr. Barnaby. The court was not satisfied that there was a reasonable excuse for the delay in filing the appeal. Although Mr. Barnaby was incarcerated from November 14, 2022, up to June 13, 2025, he was able to file the claim and participate in the Small Claims Court hearing while incarcerated. None of the other reasons offered by Mr. Barnaby provided a reasonable excuse. The applicant did not demonstrate a persuasive case for error or identify real grounds of appeal that would justify appellate interference. The alleged error of law related to the finding that the applicant failed to file his claim within the time limits required.

The court concluded that, taking all factors into account, justice did not require that the requested extension of time be granted. Accordingly, the applications to extend time to commence appeal proceedings against Phoenix House and Salvation Army were each dismissed without costs. No specific monetary amount was ordered or awarded in this decision.