r v. Chartier, 2017 NLCA 48

Justin Elliott Young (applicant) v. Sarah Noble (respondent) (16/39) Indexed As: Young v. Noble 2017 NLCA 48 2 C.A.N.L.R. 141 Court of Appeal of Newfoundland and Labrador White J.A. August 1, 2017

Summary: Mr. Young applied for leave to appeal to the Supreme Court of Canada, a decision of the Chief Justice dismissing Mr. Young’sapplication to have an unsuccessful application for leave to appeal an interlocutory order of the Supreme Court Trial Division re-heardby a panel of three justices of the Court. He argued that the Chief Justice should not have determined whether comments by the singleappellate judge were an order, should not have engaged with the merits of the appeal in deciding the application and that the courtprocess was discriminatory to him. Held: Application dismissed.

White J.A.: A single judge on a provincial appeal court has the power to grant leave to appeal to the Supreme Court of Canada if thequestion involved in the appeal is one that ought to be submitted to the Supreme Court for decision. This court only grants leave to appeal to the SCC if there are special circumstances. Leave may be granted where a case involves amatter of public interest, or some important question of law, or the construction of Imperial or Dominion Statutes, or a conflict ofprovincial and Dominion authority, or questions of law applicable to the whole Dominion.

Provincial appeal courts have granted leave toappeal to the SCC when the court itself needs direction or guidance or when the local significance of the case gives a local court acomparative advantage over the Supreme Court in assessing the case’s importance. Mr. Young’s arguments do not raise specialcircumstances. The application was dismissed. Cases cited: L. (H.) v. Canada (Attorney General), 2003 SKCA 78, 230 D.L.R. (4th) 735 Marlay Construction Ltd. v. Mount Pearl (City) (1997), (NL CA), 147 Nfld. & P.E.I.R. 249 (Nfld. C.A.) Roman Catholic School Board Exploits-White Bay v.

Newfoundland Teachers’ Association (1983), 44 Nfld. & P.E.I.R. 14 (Nfld. C.A.) Pittman v. Manufacturers Life Insurance Co (1991), (NL CA), 91 Nfld. & P.E.I.R. 17 (Nfld. C.A.) The Minister of Public Works and Services v. Reid Newfoundland Company Limited and Mines and Forests (Newfoundland) Limited(1984), 45 Nfld. & P.E.I.R. 155 (Nfld. C.A.) Canadian Pacific Ltd. v. Lowe, 1999 NSCA 115, 180 N.S.R. (2d) 330 Chartier v. Chartier (1997), (MB CA), 154 D.L.R. (4th) 442 (Sask. C.A.) Ashmead v. British Columbia, (BC CA), [1992] 6 W.W.R. 763 (B.C.C.A.) Flaherty v. McKinlay Motors, (7 December 1951), (Nlfd.

C.A.) Chimo S.S. Ltd. v. Johnson et. al. (1960), (NL CA), 46 M.P.R. 109 (Nfld. C.A.) Bowaters Newfoundland Ltd. v. Mines and Forests (Newfoundland) Ltd. (1975), 10 Nfld. & P.E.I.R. 382 (Nfld. C.A.) Szeto v. Dwyer, 2010 NLCA 36, 297 Nfld. & P.E.I.R. 311

Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87 Pintea v. Johns , 2017 SCC 23 Counsel: Appearing on his own behalf, the applicant; Peter N. Browne Q.C., for the respondent. This application was heard on May 23, 2017 before White J.A. The following judgment was delivered on August 1, 2017 by White J.A. ______________________________________________________________ White J.A.: [ 1 ] Justin Elliott Young applies for leave to appeal Young v Noble , 2016 NLCA 58 to the Supreme Court of Canada (the SCC). [ 2 ] For the reasons that follow, I must dismiss the application. Background [ 3 ] This case began when Mr. Young sued Sarah Noble for false imprisonment, and she applied for a

summary trial. [ 4 ] The application did not proceed smoothly. Mr. Young missed the initial hearing, apparently because he was directed to the wrong courtroom. A

summary trial was ordered, then postponed so Mr. Young could seek leave to appeal. His application for leave was granted, but this Court directed that the

summary trial application be sent back to the trial division, and then declared the appeal moot. [ 5 ] After several further postponements and twists, the application finally came before Faour J. on May 30, 2016. He ordered a

summary trial and a case management meeting. [ 6 ] Mr. Young applied again for leave to appeal the

summary trial order. His application was dismissed by Welsh J.A. He then applied to have his application reheard by a panel of three judges. Green C.J.N.L. dismissed his application: [33] In

summary, looked at broadly, the matter which Mr. Young wishes to appeal is strictly a logistical procedural one which is the sort of matter that should generally be left to the trial court to determine pursuant to its inherent jurisdiction to manage and organize a claim for adjudication. The arguments in favour of granting leave were not so compelling as to suggest that there was anything incorrect in the initial decision denying leave. There is nothing in the record to indicate a sufficient degree of doubt as to the correctness of the result that would justify a re-hearing.

Furthermore, there is no other good reason to justify a re-hearing in the current circumstances. While I recognize Mr. Young’s concern about the scope of the order that was made, insofar as it might, in his view, be construed as barring him from further access to the Court of Appeal, there is no need for a re-hearing to deal with that matter, as I have clarified the limits to the scope of the order that of necessity must be the case when it is considered against the backdrop of the general principle of access to the Court in the absence of any finding of abuse of process or vexatious litigation. [ 7 ] Now Mr.

Young applies for leave to appeal this order to the SCC. Analysis [ 8 ] In the hearing Mr. Young outlined what I understood to be three issues with Green C.J.N.L.’s decision. [ 9 ] First, one of the reasons Mr. Young wanted a rehearing was that he felt that Welsh J.A. ordered him not to file further applications in this Court. In hearing his application, she said: So, I would not grant leave today because there’s no basis for granting leave. You need to finish in the trial division what you started in the trial division.

When that’s finished, … you may say, “Well, I don’t agree with that”, that’s fine … then you can come to this Court, but you should not be coming to this court, back and forth, because the judge sets a date or the judge decides you’re going to proceed in a particular way … So, the difficulty you have is you must not … come back to this Court until you have a decision and then if you are unsatisfied you can come back … All right so, Mr.

Young, I hope you understand now what I was trying to say is that all the procedural things they get finished next door at the trial division … When you’ve got a final decision, if you’re not satisfied then you come to this Court. Wait till you have a final decision.

[10] Green C.J.N.L. wrote that this was not an order barring Mr. Young from filing further applications: [31] I do not read Welsh J.A.’s order in the all-encompassing manner that Mr. Young does. Generally, a potential litigant cannot bebarred from or controlled in his or her access to the court unless he is abusing the process or has been declared a vexatious litigant.Neither of these findings were made by Welsh J.A. While it is true that her remarks in Court were expressed in very general terms, theywere directed to explaining why it was not appropriate for Mr.

Young to be granted leave to appeal in the current case. They were notspecifically directed to making a formal order preventing him from coming back in any other conceivable circumstance. Her remarkscan, and should be regarded [as] simply indicating to Mr. Young that any attempt at appeal of an interlocutory order has a high burden tomeet before leave will be granted and that Mr. Young’s focus should be on dealing with the merits of the claim in the Trial Division. [11] Mr.

Young argues that Green C.J.N.L. should not have ruled on whether this was an order: I believe that if a court wanted to declare that Justice Welsh’s order for me not to come back was not an order for me [not] to come back,I believe that the easiest way for the court to have done that was to give a panel re-hearing … I continue to assert that I believe I was ordered not to come back … and I will keep asking for the right to appeal on that issue until I endup at the highest court in the land which is the [SCC]. [12] Second, Mr.

Young argues that Green C.J.N.L. dealt with the merits of his proposed appeal, instead of whether to order arehearing of the application for leave to appeal. He says this was a substantial error: I feel like I went to Justice Green and not only was I denied the panel re-hearing, I felt like he gave a judgment on what would have beenthe appeal had I been given a panel re-hearing and then given the appeal.

So I thought it was like two steps beyond the jurisdiction of thecourt in that matter. [13] He also says that it caused him procedural unfairness: [W]hen I worked on that appeal, I had written 40 pages and the first 20 dealt with the jurisprudence regarding leave to appeal and theother 20 would have been, at least some argument on what that appeal would have been if I had been given leave to appeal. And then Idecided for the sake of I guess correctness and brevity, I thought why do I need to file the appeal when I just need to ask for leave toappeal?

So I decided to take out those 20 pages and just ask the Court—meet the law and the jurisprudence on what was needed for leaveand so be it. … I didn’t have to argue that before Justice Green because I didn’t think a determination of that would be done at the panel re-hearing, butthat the panel re-hearing would just strictly decide whether I should have a panel re-hearing or not but not deal with the merit of theproposed appeal which I had not been given leave … [14] Third, Mr.

Young says that the court process was discriminatory to him: I speak of the court, not any justice, I mean the court itself I believe made an order and the court in that proceeding could not overturn itand in the context of that situation, I think you might be able to see it at some point with all the succession of unprecedented proceduralthings against me, at some point I believe there might be what I call professional discrimination.

I think me against a Queens Counselmaybe has been to my disadvantage, and I think that I can plead and argue prima facie case that I have been the victim of not personalmalice by the court but probably the victim of a professional situation that’s unprecedented. I know how difficult it is for the court in thissituation, what I’m doing is probably unprecedented. I know the great precedent takes a lot of legal fight and that’s what I’m doing.

So Ijust state to the court that I believe I can plead to the Supreme Court of Appeal discrimination even when it comes to the decision ofJustice Green because of the greater context of how I think unprecedented all of this has been. The Test for Leave to Appeal to the SCC [15] A single judge on a provincial appeal court has the power to grant leave to appeal to the SCC if “the question involved in theappeal is one that ought to be submitted to the Supreme Court for decision”: Supreme Court of Canada Act, RSC 1985, c. S-26, s. 37. [16] This power is rarely exercised.

Most applications for leave are decided by the SCC itself. As Bayda C.J.S. explained in L. (H.) v.Canada (Attorney General), 2003 SKCA 78, 230 D.L.R. (4th) 735, at para. 4: The provincial courts should never lose sight of the fact that usually it is the Supreme Court that is in the best position to assess whethera particular question satisfies the necessary criteria. Furthermore, that Court’s resources and the constraints of time dictate that it can hearand decide only a limited number of cases involving questions that, on their face, satisfy the necessary criteria.

Because all cannot beheard, it becomes necessary for the Court to choose from amongst those cases those it should hear. The Court, in other words, needs tofix priorities. Provincial courts of last resort should respect that need and allow the Supreme Court to determine its own agenda. … [17] This court only grants leave to appeal to the SCC if there are “special circumstances”: Marlay Construction Ltd. v. Mount Pearl(City) (1997), (NL CA), 147 Nfld. & P.E.I.R. 249 (Nfld. C.A.) at para. 6; Roman Catholic School Board Exploits-White Bay v. Newfoundland Teachers’ Association (1983), 44 Nfld. & P.E.I.R. 14 (Nfld.

C.A.); Pittman v. Manufacturers Life InsuranceCo (1991), (NL CA), 91 Nfld. & P.E.I.R. 17 (Nfld. C.A.); The Minister of Public Works and Services v. ReidNewfoundland Company Limited and Mines and Forests (Newfoundland) Limited (1984), 45 Nfld. & P.E.I.R. 155 (Nfld. C.A.). [18] Other appeal courts take a similarly stringent approach, though they express it in different words. Leave may be granted in “rareand exceptional circumstances”: Canadian Pacific Ltd. v. Lowe, 1999 NSCA 115, 180 N.S.R. (2d) 330 at para. 7; “the clearest of cases”:Chartier v. Chartier (1997), (MB CA), 154 D.L.R. (4th) 442 (Sask.

C.A.); “in very rare cases in which we areconvinced that an issue is raised of such obvious and compelling importance that the litigation calls for the attention of the country’s

highest court without regard to competing demands for the court’s attention”: Ashmead v. British Columbia, (BC CA),[1992] 6 W.W.R. 763 (B.C.C.A.), at p. 767. [19] What are “special circumstances”? Old decisions of this court set out a number of categories of cases that could justify grantingleave, building on Flaherty v. McKinlay Motors, an unreported 1950 decision where Sir Albert Walsh C.J. said, The grant of leave to appeal is within the discretion of this Court and that discretion must be exercised judicially.

It has been laid downthat leave may well be granted where a case involves a matter of public interest, or some important question of law, or the constructionof Imperial or Dominion Statutes, or a conflict of provincial and Dominion authority, or questions of law applicable to the wholeDominion. [20] This approach was followed in Chimo S.S. Ltd. v. Johnson et. al. (1960), (NL CA), 46 M.P.R. 109 (Nfld. C.A.);Bowaters Newfoundland Ltd. v. Mines and Forests (Newfoundland) Ltd. (1975), 10 Nfld. & P.E.I.R. 382 (Nfld.

C.A.); and, Pittman. [21] More recent decisions from other provinces have since emphasized that a provincial appeal court should grant leave when thelocal significance of the case gives a local court a comparative advantage over the SCC in assessing the case’s importance. In Ashmead,Taylor J.A. said, I agree with counsel for the applicants that in considering leave applications under s. 37 this court ought to have particular regard toissues of provincial as well as national concern.

It is in this respect that a provincial court of appeal might be in a better position than theSupreme Court itself to recognize a case as one which required final adjudication in the country’s highest court. … [22] Similarly, in L. (H.), Bayda C.J.S. said at para. 4, … [O]n rare occasions, a provincial or regional concern of compelling importance will arise, rendering a provincial court of appealpeculiarly suited to determine if that case is one that ought to be decided by the country’s highest court.

And, when that happens, theCourt should not shirk from exercising the jurisdiction bestowed upon it by s. 37. [23] In recent years, provincial appeal courts have granted leave to appeal to the SCC when the court itself needs direction orguidance. In Chartier the Manitoba court felt unable to overturn a precedent that had been rejected in most other jurisdictions; in L. (H.)the Saskatchewan court was concerned that a recent SCC decision might be per incuriam, but felt unable to decide that itself. Application to Mr. Young’s Arguments [24] Mr.

Young’s arguments do not raise special circumstances that would justify my granting leave to appeal to the SCC. [25] They do not raise issues of great public importance. On the contrary, they are fine procedural points about the application of thisCourt’s rules. [26] They do not have any special local dimension that might give me a comparative advantage over the SCC in deciding whether togrant leave. I am no better positioned to grant leave than the SCC, and that in itself is a strong reason not to intervene. [27] I must dismiss Mr. Young’s application. With that said, I will offer some brief comments on Mr.

Young’s arguments. Thesecomments are not binding on him. They are intended simply to help explain the procedures at play in this case. [28] With respect to Mr. Young’s first argument, not every comment a judge makes in the course of a hearing or even in reasons forjudgment is an order. The Chief Justice can only order a rehearing of the way a judge “disposed of” an application: r. 31. The courtcannot rehear a mere question of comment. It is not even clear what that would mean. And so, before deciding whether to order arehearing of Justice Welsh’s statement that Mr.

Young should “not … come back to this Court until [he had] a decision”, Green C.J.N.L.had to decide whether it was a disposition or a mere comment. [29] Green C.J.N.L. considered Welsh J.A.’s words in their full context and concluded: [31] … Her remarks can, and should be regarded is simply indicating to Mr. Young that any attempt at appeal of an interlocutory orderhas a high burden to meet before leave will be granted and that Mr. Young’s focus should be on dealing with the merits of the claim inthe Trial Division. [30] Since the comments Mr.

Young objects to were not an order, they could not be reheard. [31] With respect to Mr. Young’s second argument, the merits of the final appeal are relevant to the leave application: r. 57.02(4)(b).The merits of the leave application are relevant to the rehearing application, as Green C.J.N.L. explained at paragraph 3.

Therefore themerits of the final appeal are also relevant to the rehearing application. [32] From another perspective, the discretion to rehear must be exercised in light of “an underlying principle of proportionality whichmeans taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the natureand complexity of the litigation”: Szeto v. Dwyer, 2010 NLCA 36, 297 Nfld. & P.E.I.R. 311, at para. 53, adopted in Hryniak v. Mauldin,2014 SCC 7, [2014] 1 S.C.R. 87.

It would not be proportionate to order a rehearing of an application for leave when the ultimate appealwas without merit. [33] Mr. Young acknowledged that “maybe the Court took an opportunity not maliciously but maybe to resolve an issue that’s been abit of a tangled mess and it did make it less complicated”. The rules of court are designed to make this possible. [34] With respect to Mr. Young’s third argument, this Court has a duty to ensure that everyone is treated fairly and withoutdiscrimination.

It is impossible to deny that there is an inequality when a self-represented litigant must argue a case against experiencedcounsel. The Court must take “affirmative and non-prejudicial steps” to address this, as explained in the CJC’s Statement of Principles on

Self-represented Litigants and Accused Persons , endorsed in Pintea v. Johns , 2017 SCC 23 . [ 35 ] Green C.J.N.L. took such an affirmative and non-prejudicial step with his explanation at paragraph 32: [32] To clarify the matter for Mr. Young, I am prepared to declare that, inasmuch as he has not been declared to have abused the Court process and has not been declared a vexatious litigant, Mr. Young is not presently barred from making further appropriate applications or appeals to the Court in relation to other matters arising in the course of the

summary trial. Any such applications or appeals will, of course, be subject to the applicable procedural law and the rules of court, in particular rule 35 and will also be subject – as would any case - to having costs awarded against him if the Court were to consider any such appeals to have been inappropriately brought. [ 36 ] I fully adopt the comment of the Chief Justice. Conclusion [ 37 ] The application for leave to appeal to the SCC is dismissed. In the circumstances, I will make no order for costs. Application dismissed