2017 NLCA 19, 2017 NLCA 19

Thomas Philip Cheeseman (applicant/appellant) v. Linda Marie Coles (respondent) (16/75) Indexed As: Cheeseman v. Coles 2017 NLCA 19 1 C.A.N.L.R. 548 Court of Appeal of Newfoundland and Labrador Green C.J.N.L. March 16, 2017

Summary: Mr. Cheeseman sought leave to appeal an order of the Provincial Court under

section 12.1 of the Family Violence Protection Act , SNL 2005, c. F-3.1 ( FVP Act ) which refused to vary or set aside an ex parte emergency protection order (EPO) previously granted to Ms. Coles by another judge of that Court. Mr. Cheeseman wished to argue that the EPO judge erred in: concluding that Mr. Cheeseman’s actions constituted family violence within the definition in

section 3 of the FVP Act ; in not concluding that the fear that an applicant for an EPO is required to show must have an objective as well as a subjective component; in admitting evidence of matters that were not relied on or did not exist at the time the original ex parte EPO order had been made; in admitting hearsay evidence; and in refusing to allow him to speak or enter evidence as part of his defence which, he says, demonstrated that Ms. Coles had been the victim of family violence at the hand of someone else prior to the time when Mr. Cheeseman and Ms. Coles began their relationship. Held: Application for leave to appeal dismissed. Green C.J.N.L.:

Section 12.1 of the FVP Act provides that an appeal from an order made under the FVP Act may be made to the Court of Appeal on a question of law or jurisdiction with leave of a judge of the Court of Appeal. The provisions of

section 12.1 of the FVP Act are similar to leave requirements in other statutes. The Court has previously decided that, in such cases the test for granting leave is whether, in addition to showing that the question on appeal is one of law or jurisdiction, the intended appellant can show a reasonably arguable case for success on appeal. Courts in other provinces have established a more elaborate test for leave. Melding these various lines of authority, the approach to determining leave under

section 12.1 of the FVP Act is to determine: (

i) whether it appears that the issue on appeal is one of law or jurisdiction; and, if so (ii) whether the appellant can show that either: (

a) he or she has a reasonably arguable case for success on the appeal; or (

b) the issue is of general importance to the administration of justice. While the foregoing should be the basic test for granting leave in cases of this type, the Court may exercise its discretion in an unusual case falling outside the parameters of item (ii) if circumstances warranted. There must be a basis for characterizing the issues as questions of law or jurisdiction.

That said, it is sufficient at the leave stage to raise a reasonably arguable case that the issues involve law or jurisdiction, recognizing, of course, that on the appeal itself, it is still necessary for the Court to conclude definitively that issues of law or jurisdiction are involved before granting any appellate relief. The issues raised by Mr. Cheeseman could be characterized as ones of law inasmuch as they potentially involve the

interpretation of the meaning and effect of provisions of the FVP Act , or involve the application of the law of evidence.

The real question in this case is whether Mr. Cheeseman has demonstrated an arguable case for success on appeal or, even if not, whether the issues involve matters of general significance. The issues identified by Mr. Cheeseman do not raise a reasonably arguable case for success on the appeal. The first ground of appeal was that the definition of family violence does not apply to the circumstances of his case. However, the transcript discloses evidence from which a conclusion that

section 5.3(a)(

f) of the FVP Act applied could have been reached. As to the second ground, there is no basis in the record for suggesting that the judge disregarded the objective requirement of the test. As to the third ground of appeal, subsection 10(4) (

a) of the FVP Act specifically allows the reception of “new evidence” on an application to set aside an ex parte order. The fourth ground of appeal also has no traction. The judge was entitled to rely on the affidavit evidence filed in support of the original ex parte order. Moreover, when Ms. Coles sought to lead hearsay evidence, the judge in fact rejected it or stated she was not going to consider it. Thirdly, when Ms. Coles referred to statements made by Mr. Cheeseman, such statements amounted to admissions and therefore were not precluded by the hearsay rule. Finally, on the few other occasions where Ms.

Coles may have stated something that was technically hearsay, it is clear from the transcript that the matters were peripheral to the main issues and were not referenced by the judge when reaching her decision. As to the final ground of appeal, it is clear that the judge rightly regarded evidence proffered by Mr. Cheeseman as to other events involving Ms. Coles and others as irrelevant. There is also no other justification for granting leave in this case. The term of the EPO has now expired and it has not been renewed. The issues are moot.

No special feature in this case which makes it in the interests of justice to resolve. Cases cited: Newfoundland and Labrador Hydro v. Newfoundland and Labrador (Board of Commissioners of Public Utilities) , 2012 NLCA 38 , 323 Nfld. & P.E.I.R. 127 Newfoundland and Labrador (Consumer Advocate) v. Newfoundland Power Inc., 2003 NLCA 58 Labrador City (Town) et al v. Newfoundland and Labrador Hydro Inc. , 2004 NLCA 61 , 241 Nfld. & P.E.I.R. 81 . Bokenfohr v. Pembina Pipeline Corporation, 2017 ABCA 40 R. v. Newfoundland Recycling Limited , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 R. v.

Pottle , 2016 NLCA 22 Counsel: Appearing on his own behalf, the applicant/appellant; Appearing on her own behalf, the respondent. This application was heard on November 22, 2016 before Green C.J.N.L. The following judgment was delivered on March 16, 2017 by Green C.J.N.L. ______________________________________________________________

Green C.J.N.L.: [ 1 ] Mr. Cheeseman seeks leave to appeal an order of the Provincial Court under

section 12.1 of the Family Violence Protection Act , SNL 2005, c. F-3.1 ( FVP Act ) refusing to vary or set aside an ex parte emergency protection order (EPO) previously made by another judge of that Court. [ 2 ] The term of the EPO has now expired and it has not been renewed. Although Mr. Cheeseman is now no longer subject to the restrictions placed on him by the EPO, he is facing charges in another court for breaching the EPO while it was in force.

He says his motive for wanting to appeal the EPO decision, even though it is spent, is to enable him to argue that he should not have been convicted of breaches of the order because it should not have been issued in the first place. This issue of potential mootness is relevant to the question whether leave to appeal ought to be granted. [ 3 ]

Section 12.1 of the FVP Act provides as follows: With leave of a judge of the Court of Appeal, an appeal from an order made under this Act may be made to the Court of Appeal on a question of law or jurisdiction [ 4 ] This provision represents one of the few remaining situations under the new Court of Appeal Rules (in force as of October 17, 2016) where leave to appeal still has to be addressed.

See rules 33 (leave required by statute), 34 (leave to appeal consent orders) and 42(4) (leave to appeal an order granting or refusing a stay in the Court of Appeal). [ 5 ] A precondition to the granting of leave under the FVP Act is that the appeal must raise a question of law or jurisdiction. It is not sufficient that the error alleged be described by the putative appellant as an error of law or jurisdiction; the appellant must be able to convince the Court that it is at least arguable that the issues raised involve questions of law or of jurisdiction.

Context [ 6 ] A judge of the Provincial Court issued an EPO ex parte on June 24, 2016 pursuant to

section 5 of the Act and

section 7 of the Provincial Court Family Violence Protection Rules , NL Reg 52/06 ( PCFVP Rules ). It was based on sworn written statements by the Intended Appellant, Linda Coles, in response to a series of questions on a printed form of application provided by the Provincial Court. The EPO required Mr. Cheeseman, amongst other things, to refrain for a period of 30 days from having contact or communicating with Ms. Coles. [ 7 ] Mr. Cheeseman applied under

section 10 of the Act and

section 20 of the PCFVP Rules to have the EPO set aside. That hearing was held before another Provincial Court judge commencing on July 8, 2016 and continuing on July 19, 2016. Mr. Cheeseman submitted that there had not been any basis for the original judge to have granted the EPO. Amongst other things, he argued that there were no grounds for granting such an order. [ 8 ] The judge refused to set aside the EPO. She concluded that the burden on an applicant to set aside an EPO is to show “on a balance of probabilities that it is just and equitable that the order be set aside” (Transcript, July 19, 2016, p. 86).

She decided that to maintain the EPO the court must be satisfied, on the basis of the original record and any additional evidence properly submitted on the review application, that there was a subjective fear on the part of the original applicant and that there was a reasonable objective basis for that fear. She concluded: … it is clear to me that Ms. Coles is in fear for her safety, and I do find that in the context of all that she has said that there are objective grounds for that fear. [ 9 ] In coming to that conclusion she relied on a statement made by Ms. Coles in her original application that Mr.

Cheeseman telephoned her and said that one night she would wake up in her bed and find him lying next to her, and that if the relationship was over she would “go down big time.” She also relied on Ms. Cole’s evidence that Mr. Cheeseman walked into her house, tried to hug her and refused to leave until she called the police. [ 10 ] The judge did not rely on other incidents described by Ms. Coles relating to a break-in at her house and the theft of credit cards and jewelry because they had not been proven. However, she did rely on some evidence of events that had occurred after the EPO had originally been issued.

In particular, she relied on evidence from a third party that Mr. Cheeseman had stationed his vehicle at a place near Ms. Cole’s house where he could observe her. She further relied on evidence that Mr. Cheeseman telephoned Ms. Coles in violation of the original EPO. She made negative findings with respect to Mr. Cheeseman’s credibility, concluding that he was “not … candid or forthcoming with regard to his evidence.” (Transcript, p. 93). [ 11 ] She concluded that the evidence supported the conclusion that there was “family violence” committed by Mr. Cheeseman against Ms.

Coles within the meaning of section 3(1) (

f) of the FVP Act , which defines family violence as including: conduct that causes the applicant to reasonably fear for his or her safety, including following, contacting, communicating with, observing or recording a person. Arguments on Appeal [ 12 ] Based on his application for leave and his written argument, if leave to appeal were to be granted, Mr. Cheeseman wishes to argue, as grounds of appeal, that the EPO judge erred: 1. in concluding that Mr. Cheeseman’s actions constituted family violence within the definition in

section 3 of the FVP Act ;

2. in not concluding that the fear that an applicant for an EPO is required to show must have an objective as well as a subjective component. 3. in admitting evidence of matters that were not relied on or did not exist at the time the original ex parte EPO order had been made; 4. in admitting hearsay evidence 5. in refusing to allow him to speak or enter evidence as part of his defence which, he says, demonstrated that Ms. Coles had been the victim of family violence at the hand of someone else prior to the time when Mr. Cheeseman and Ms. Coles began their relationship. Leave to Appeal: Applicable Principles [ 13 ] This is the first time

section 12.1 of the FVP Act has come before this Court. However, its provisions are similar to leave requirements in other statutes. For example,

section 99 of the Public Utilities Act , RSNL 1990, c. P-47 similarly provides that an appeal from a decision of the Public Utilities Board on a question of law or jurisdiction to the Court of Appeal may only be made with leave. In Newfoundland and Labrador Hydro v.

Newfoundland and Labrador (Board of Commissioners of Public Utilities) , 2012 NLCA 38 , 323 Nfld. & P.E.I.R. 127 the test for granting leave was stated simply as whether, in addition to showing that the question on appeal is one of law or jurisdiction, the intended appellant can show “ a reasonably arguable case for success on appeal.” See also to the same effect Newfoundland and Labrador (Consumer Advocate) v. Newfoundland Power Inc., 2003 NLCA 58 and Labrador City (Town) et al v. Newfoundland and Labrador Hydro Inc. , 2004 NLCA 61 , 241 Nfld. & P.E.I.R. 81 .

Of course, it goes without saying that inasmuch as an appeal can only be had on a question of law or jurisdiction, the “reasonably arguable case for success” must be in relation to a matter than can be characterized as one of law or jurisdiction, [ 14 ] In other jurisdictions which also apply a leave requirement on matters of law or jurisdiction, sometimes a more elaborate test is enunciated. See, e.g., Bokenfohr v. Pembina Pipeline Corporation , 2017 ABCA 40 where Slatter J.A. enunciated an issues-based approach: [2] … On an application for permission to appeal, the Court considers a number of issues: (

a) Is the issue of general importance? (

b) Is the point raised of significance to the decision itself? (

c) Does the appeal have arguable merit? (

d) What standard of review is likely to be applied? (

e) Will the appeal unduly hinder the progress of the proceedings? [ 15 ] Paragraph (

e) would only be relevant in respect to what are now called “uncompleted proceedings” under our new Rules. It cannot apply to an EPO appeal like the present one. With respect to paragraph (d), the impact of the standard of review is already recognized in the Newfoundland and Labrador jurisprudence as part of the “reasonably arguable case” analysis. In Labrador City , for example, Cameron J.A. observed at p. 84: … in determining whether there are serious arguable issues consideration should be given to the standard of review to be applied by the Court in respect of the particular issues raised.

Obviously, where the standard of review is patent unreasonableness the serious arguable issue test is more difficult to meet than where the test is correctness. [ 16 ] I would observe, with respect to the foregoing, however, that (

i) although Cameron J.A. referred to “patent unreasonableness” in contradistinction to correctness relative to the standard of review, the deferential standard is now one of simple correctness; and (ii) while one would generally expect questions of law or jurisdiction to normally attract a standard of correctness, recent Supreme Court of Canada jurisprudence does recognize that some questions of law (such as the

interpretation placed by a tribunal on its home statute) still attract a deferential standard of reasonableness. This latter point would also have little application in the EPO context where the appeal is from another court rather than from a tribunal. In such cases, where there is a question of law or jurisdiction involved, the standard of review will almost invariably be one of correctness where review of the decision of a court, rather than an inferior tribunal, is involved. [ 17 ] Paragraph (

c) of the Bokenfohr list of issues equates to the Hydro “ reasonably arguable case” test. Paragraph (

b) in my view adds little except to emphasize that an appeal point of little or no moment should perhaps not justify leave. That point can be subsumed under the arguable case test. [ 18 ] Paragraph (

a) may well be a legitimate consideration, particularly in the EPO context. Because of the short time frame involved in EPOs (maximum of 90 days), rarely will appeals of live issues be taken. They may therefore often be moot by the time the case reaches the Court of Appeal. Nevertheless, the rarity of an opportunity to clarify the law in this area may justify the granting of leave when an important issue is presented.

This may amount to a counter argument to the mootness argument and may justify granting leave on grounds of the issue being one of “general importance.” [ 19 ] The notion of an issue being of general importance as a ground for granting leave also finds reflection in a related issue in the criminal context involving

summary conviction appeals under

section 839 of the Criminal Code . Such appeals to the Court of Appeal may only proceed “with leave of that court or a judge thereof … taken on any ground that involves a question of law alone.” This Court has expressed the view that the ground of appeal in such cases must be such that either the ground of appeal has a “reasonable possibility of success” or “the proposed question of law [has significance] to the administration of justice.” See R. v. Newfoundland Recycling Limited , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 per Rowe J.A. at paragraph 9. As to this test, I would observe that: (

i) the “reasonable

possibility of success” standard is arguably roughly equivalent to the Hydro “reasonably arguable case” test; and (ii) “significance to the administration of justice” standard is essentially the same as the “issue of general importance” standard in Bokenfohr . [ 20 ] Melding these various lines of authority, I conclude that the approach to determining leave under

section 12.1 of the FVP Act is to determine: (

i) whether it appears that the issue on appeal is one of law or jurisdiction; and, if so (ii) whether the appellant can show that either: (

a) he or she has a reasonably arguable case for success on the appeal; or (

b) the issue is of general importance to the administration of justice. [ 21 ] I would also add that while the foregoing should be the basic test for granting leave in cases of this type, I would not preclude the Court from exercising its discretion in an unusual case falling outside the parameters of item (ii) if it felt circumstances warranted. Question of Law or Jurisdiction? [ 22 ] As noted in the Labrador City case, “it is not enough … to merely characterize the issues raised as being questions of law or of jurisdiction” (per Cameron J.A. at paragraph 5).

There has to be a basis for so characterizing the issues that way. That said, the applicant should not have to convince the court beyond a peradventure at the leave stage that issues of law or jurisdiction are necessarily engaged. It is sufficient at this stage to raise a reasonably arguable case that the issues involve law or jurisdiction, recognizing, of course, that on the appeal itself, it is still necessary for the Court to conclude definitively that issues of law or jurisdiction are involved before granting any appellate relief. [ 23 ] In this case, the issues raised by Mr.

Cheeseman could be characterized as ones of law inasmuch as they potentially involve the

interpretation of the meaning and effect of certain provisions of the FVP Act , or involve the application of the law of evidence. [ 24 ] The real question in this case is whether Mr. Cheeseman has demonstrated an arguable case for success on appeal or, even if not, whether the issues involve matters of general significance that might in any event justify the Court examining the issues presented. Reasonably Arguable Case? [ 25 ] For the reasons that follow, I am satisfied that issues identified by Mr.

Cheeseman do not raise a reasonably arguable case for success on the appeal. [ 26 ] His first ground of appeal (the definition of family violence does not apply to the circumstances of his case) was based on the submission that at the EPO hearing his counsel took Ms. Coles through each of the subparagraphs in the definition of family violence and elicited an acknowledgement from her that the circumstances described in each subparagraph did not exist. However, a review of the transcript of the evidence discloses that with respect to subparagraph (f), quoted above, which is the one which Ms.

Coles is relying on and which the judge purported to apply, Mr. Cheeseman’s counsel did not pose an appropriate question and did not obtain a negative answer. Furthermore, the transcript discloses evidence from which a conclusion that

section 5.3(a)(

f) of the FVP Act applied could have been reached. [ 27 ] With respect to the second ground of appeal (failure to acknowledge an objective element to the notion of fear in subparagraph (f)), the transcript demonstrates that the judge referred to other cases, and quoted from them, to the effect that the court must be satisfied both of the subjective fear of the EPO applicant and that there is a reasonable objective basis for that fear.

She stated “the subjective fear or concerns of the applicant must be supported by objective evidence” and that the conduct complained of must cause the applicant to “reasonably fear” for his or her safety. There is no basis in the record for suggesting that the judge disregarded the objective requirement of the test.

In fact, she made a specific finding (Transcript, July 19, 2016, p. 92) that “there are objective grounds for that fear.” [ 28 ] As to the third ground of appeal (relying on evidence of events that occurred subsequent to the granting of the original ex parte order), there is no basis for this complaint. Subsection 10(4) (

a) of the FVP Act specifically allows the reception of “new evidence” on an application to set aside an ex parte order. [ 29 ] The fourth ground of appeal (reception of hearsay evidence) also has no traction. First, the judge was entitled to rely on the affidavit evidence filed in support of the original ex parte order without requiring its repetition by way of viva voce evidence. See paragraph 10(4)(

a) of the FVP Act . Secondly, on the several occasions when Ms. Coles sought to lead hearsay evidence, the judge in fact rejected it or stated she was not going to consider it. Thirdly, when Ms. Coles referred in her testimony to statements made by Mr. Cheeseman, such statements amounted to admissions and therefore were not precluded by the hearsay rule. Finally, on the few other occasions where Ms. Coles may have stated something that was technically hearsay, it is clear from the transcript that the matters were peripheral to the main issues and were not referenced by the judge when reaching her decision.

It cannot therefore be said that she put any weight on such matters. [ 30 ] As to the final ground of appeal (failure to allow Mr. Cheeseman an opportunity to tender certain evidence), it is clear that the judge rightly regarded evidence proffered by Mr. Cheeseman as to other events involving Ms. Coles and others as irrelevant to the allegations against Mr. Cheeseman. [ 31 ] There is no substance to any of the grounds of appeal. It cannot therefore be said that there is a reasonably arguable basis for success on the proposed appeal.

Issue of General Importance? [ 32 ] There is also no other justification for granting leave in this case, based on the notion that there is an issue of general importance relating to the meaning, operation or application of the FVP Act that could benefit from consideration by this Court. [ 33 ] The issues are moot. The EPO is now spent. While that in itself is not necessarily preclusive of the Court considering the appeal where there are countervailing considerations there is no special feature in this case which makes it in the interests of justice to resolve. [ 34 ] I recognize Mr.

Cheeseman’s desire to obtain a favourable ruling in this Court so he could use it as a defence against the charge he is facing for breaching the EPO. In this situation, however, he faces the insurmountable problem that even if the EPO were now to be set aside a charge for breach of it, while still in existence may still be maintained. As this Court stated in R. v. Pottle , 2016 NLCA 22 at paragraph 22 : “[A]n order made by a court with the jurisdiction to do so is binding until set aside”. Conclusion and Disposition [ 35 ] The application for leave to appeal is therefore dismissed.

As there was no realistic basis for pursuing the application for leave to appeal, Ms. Coles should be entitled to her costs on this application which, pursuant to Rule 58(1) of the Court of Appeal Rules, I fix at $500.00. Application dismissed .