2014 NBCA 41, 2014 NBCA 41

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 101-13-CA PROVINCE OF NEW BRUNSWICK as represented by the MINISTER OF SOCIAL DEVELOPMENT APPELLANT PROVINCE DU NOUVEAU-BRUNSWICK représenté par la MINISTRE DU DÉVELOPPEMENT SOCIAL APPELANTE - and - - et - NOËLLA COUTURE and RÉSIDENCE WEST END INC., a company duly incorporated under the laws of New Brunswick RESPONDENTS NOËLLA COUTURE et RÉSIDENCE WEST END INC., une corporation dûment constituée sous les lois du Nouveau-Brunswick INTIMÉES Province of New Brunswick, as represented by the Minister of Social Development v.

Noëlla Couture and Résidence West End Inc., a company duly incorporated under the laws of New Brunswick, 2014 NBCA 41 Province du Nouveau-Brunswick, représentée par la Ministre du Développement social c.

Noëlla Couture et Résidence West End Inc., une corporation dûment constituée sous les lois du Nouveau-Brunswick, 2014 NBCA 41 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Bell CORAM : l’honorable juge Larlee l’honorable juge Deschênes l’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: October 9, 2013 Appel d’une décision de la Cour du Banc de la Reine : Le 9 octobre 2013 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite

Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: February 26, 2014 Appel entendu : le 26 février 2014 Judgment rendered: June 26, 2014 Jugement rendu : le 26 juin 2014 Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Deschênes The Honourable Justice Bell Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Bell Counsel at hearing: For the appellant: J.

Danie Roy and Maya Hamou For the respondents: Mario Lanteigne Avocats à l’audience : Pour l’appelante : J. Danie Roy et Maya Hamou Pour les intimées : Mario Lanteigne THE COURT The appeal is allowed without costs. English version of the Court’s reasons for judgment delivered by

LARLEE J.A. [ 1 ] The Province of New Brunswick, as represented by the Minister of Social Development (the Minister), is appealing a decision issued on October 9, 2013, by a judge of the Court of Queen’s Bench, ordering an extension of the time for Noëlla Couture and Résidence West End Inc. to file an application for judicial review of a decision by the Minister. I. Background [ 2 ] For 23 years, Noëlla Couture has been the manager, director and operator of the other respondent, Résidence West End Inc., a home for people with special needs located in Bathurst, N.B.

On April 17, 2013, the Minister notified the respondents of her decision not to renew the Certificate of Approval, resulting in the impending closure of the Résidence West End Inc. community centre. The respondents consulted a lawyer on or about May 24, 2013, and were advised they had to act quickly given the time limit for filing the application. On June 3, 2013, the respondents’ lawyer sent the respondents a letter informing them that the proceedings had to be brought promptly in order to protect their interests.

On September 30, 2013, the respondents filed an application for judicial review as well as a motion seeking an extension of the time set out in Rule 69.03 of the Rules of Court of New Brunswick .

The Minister is appealing the decision granting the extension of the time for commencing an application for judicial review. [ 3 ] The Minister raises three grounds of appeal, namely that the motion judge erred in law by: 1) ordering the extension of the time for filing the application for judicial review in the absence of evidence of exceptional circumstances and/or sufficient cause, i.e., by considering the respondents’ financial situation to be an exceptional circumstance; 2) ordering the extension of the time for filing the application for judicial review and failing to set out the circumstances that the motion judge considered exceptional; and 3) considering that the lack of evidence of substantial prejudice affects the weight that should be accorded to the evidence of exceptional circumstances.

II. Standard of Review [ 4 ] The New Brunswick jurisprudence clearly establishes that this Court should only interfere with the exercise of discretion if it is shown that the trial judge misdirected himself or herself on the law, did not apply the proper principles or misapprehended the facts such that an injustice would result: Doiron v. Haché , 2005 NBCA 75 , [2005] N.B.R. (2d) 79 at para. 58 . III. Issue [ 5 ] Should the time set out in Rule 69.03 for commencing the review application have been extended? [ 6 ] Rule 69.03 provides as follows:

69.03 When Proceedings Commenced Subject to any Act, an application under thisrule shall be commenced within 3 monthsfrom the date of the order, conviction,commitment, warrant, decision, award orrefusal to act which is complained of but thecourt may, (

a) on appropriate terms, (

b) either before or after the expiration of thetime limited herein, and (

c) if a delay will not cause substantialprejudice to anyone, extend the time for commencing theapplication. 69.03 Quand introduire l’instance

Sous réserve de toute disposition d’une loi,toute requête formulée en application de laprésente règle doit être introduite dans les 3mois de la date de l’ordonnance, de ladéclaration de culpabilité, de l’incarcération,du mandat, de la décision, de la sentencearbitrale ou du défaut d’exécution contesté.La cour peut cependant,

a) aux conditions qui conviennent,

b) soit avant soit après l’expiration du délaiaccordé dans les présentes et

c) si le retard ne cause à personne unpréjudice sérieux, prolonger le délai pour l’introduction de larequête. IV. Analysis and Decision [7] In the case at bar, the motion judge found that the Minister had opted not to bring evidenceshowing the prejudice that might be caused to anyone by the extension of time sought by the respondents: the extension might havecaused some inconvenience, but not substantial prejudice. The motion judge therefore relied on the second criterion contemplated by thecase law, namely exceptional circumstances. [8] In Smith v.

New Brunswick (Human Rights Commission) (1999), (NB CA),217 N.B.R. (2d) 336, [1999] N.B.J. No. 392 (C.A.) (QL), the applicant sought an extension of the time for filing an application forjudicial review. Drapeau J.A. (as he then was) ruled: “In my view, three months is, except in the most exceptional circumstances, morethan enough time for an aggrieved party to commence an application for judicial review.” (para. 25) [9] In New Brunswick (Minister of Transportation and Infrastructure) v.

LeBlanc, 2013 NBCA 9,398 N.B.R. (2d) 83, after citing the passage from Smith, Bell J.A. summarized this Court’s jurisprudence on exceptional circumstances: While this Court has not had occasion to define “exceptional circumstances” for purposes of applying Rule 69.03, related jurisprudencefrom New Brunswick and elsewhere provides some guidance. In R. v. Guitare, [2001] N.B.R. (2d) (Supp.) No. 61, [2001] N.B.J. No.242 (C.A.) (QL), Larlee J.A. heard a motion to extend the time for filing an appeal from a conviction and sentence pursuant to s. 678(2)of the Criminal Code and Rule 63.26 of the Rules of Court.

She observed that an extension could only be granted in “exceptionalcircumstances” where there is concern that an injustice may have occurred. From the time of his conviction and sentence to September17, 1997, Mr. Guitare was regularly taking anti-psychotic medication. He filed his Notice of Appeal on August 25, 1998. While the timefor filing an appeal expired before September 17, 1997, Larlee J.A. appears to accept Mr. Guitare’s explanation for the delay until thattime, namely, that the anti-psychotic medication he was taking prevented him from filing his appeal.

However, between September 17,1997, the date he ceased taking the medication, and August 25, 1998, the date he filed the Notice of Appeal, Mr. Guitare had no validexcuse for not filing his appeal. It would appear that a diagnosed medical condition which prevents one from meeting a limitation datemay constitute “exceptional circumstances” which would justify an extension of the limitation period.

In Blue v. Antigonish District School Board, [1990] N.S.J. No. 37 (N.S.S.C.(T.D.)) (QL) Glube, C.J. extended the time period for filing ajudicial review application under Nova Scotia Rule 56.06 in circumstances where the applicant attended at the Prothonotary’s Office onthe last possible date for filing and was prevented from doing so because of a power outage. In such circumstances, the Court observed itwould be “totally inequitable not to allow the certiorari application to proceed”.

No one would seriously dispute that government’sinability to accept documents, for whatever reason, on the last day of the limitation period, should constitute exceptional circumstancesfor purposes of considering a request for an extension. As a general proposition, I agree with the comments of Reed J. in Chin v. Ministerof Employment and Immigration, [1993] F.C.J.

No. 1033 (T.D.) (QL), wherein she stated: “[w]hen an application for an extension oftime comes before me, I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illnessor some other unexpected or unanticipated event” (at para. 8). In the present case, the “exceptional circumstances” advanced by the respondents included observations that they were busy lobbyingpoliticians, holding and/or attending meetings, and, in one case, pre-occupied with personal matters.

Clearly, none of those reasonsconstitute exceptional circumstances as contemplated by the Court in Smith. Had there been no evidence of substantial prejudice, I wouldallow the appeal on the basis that no exceptional circumstances exist which would have permitted an extension of the time for filing theapplication for judicial review. [paras. 23-25] [10] The Federal Court of Appeal dealt with a similar issue in Powell v. United Parcel Service, 2010FCA 286, [2010] F.C.J. No. 1336 (QL). A Federal Court judge exercised her discretion to deny an extension of time based on the legaltest in Canada (Attorney General) v.

Hennelly, (FCA), [1999] F.C.J. No. 846 (QL), namely whether there is areasonable explanation for the delay, and on the evidence before her, including evidence of impecuniosity. The Federal Court judgefound that the appellant did not meet that test, determining that the appellant had not demonstrated a continuing intention to pursue theapplication for judicial review and had not provided a reasonable explanation for her delay. Stratas J.A. observed on behalf of theFederal Court of Appeal: In my view, the Federal Court was entitled to reach that conclusion based on the law and the material before it.

The appellant has notdemonstrated that the Federal Court’s exercise of discretion was vitiated by error of law or palpable and overriding error. On the issue ofimpecuniosity, the material does show that the appellant was having difficulty raising funds for the retainer sought by counsel but thereis no evidence that her impecuniosity prevented her from preparing and filing a short notice of application within the thirty day period.[para. 4] The same issue has been addressed in the New Brunswick jurisprudence: Dowd v. New Brunswick Dental Society (1999), (NB CA), 210 N.B.R. (2d) 386, [1999] N.B.J.

No. 109 (C.A.) (QL), at para. 8; Nelson v. New Brunswick (Attorney General),2012 NBQB 99, [2012] N.B.J. No. 87 (QL), per Garnett J.; B & N Hospitalities Inc. (c.o.b. Le Chateau Bathurst) v. United Food andCommercial Workers International Union, Local 1288P (2006), 2006 NBQB 392 , 306 N.B.R. (2d) 72, [2006] N.B.J. No. 570(Q.B.) (QL), per Léger J.; Debly Construction Ltd. v. New Brunswick (Minister of Environment) (2000), (NB KB),229 N.B.R. (2d) 99, [2000] N.B.J. No. 322 (Q.B.) (QL), per Glennie J.; and C.M. Ventilation Ltd. v.

Sheet Metal Workers InternationalAssociation, Local 437 (1991), (NB KB), 122 N.B.R. (2d) 181, [1991] N.B.J. No. 1016 (Q.B.) (QL), per Deschênes J.(as he then was). [11] In my view, the first ground of appeal in this case has merit, allowing me to determine the issuein dispute. That ground of appeal posits that the motion judge erred in finding that the extension of the time for filing the application forjudicial review should be granted, considering only the respondents’ financial situation as exceptional circumstances. The motion judgehad the benefit of reading Ms.

Couture’s affidavit describing her financial situation. She wanted to retain a lawyer but before doing sowanted to make sure that she had the financial resources to pay for the lawyer’s services. She contends that her ruinous financial situationresulted from the closure order the Minister issued for her other business, Chez Couture et Ami(es) Inc. She took steps to obtainfinancing between early June and mid-July 2013, and was only in a position to make the decision to retain her lawyer on July 17, 2013,three months after the date of the order.

A member of her family assisted her financially at the last minute. [12] The motion judge in the case at bar answered the following question in the affirmative: are thereexceptional circumstances that caused the failure to comply with the time limit set out in the rule? In his view, the applicants’impecuniosity, caused by all of the circumstances on the record, constitutes “exceptional circumstances” as contemplated by the caselaw.

The motion judge expressed his view in the following manner: [TRANSLATION] In the case at bar, it was the applicants’ impecuniosity in particular that prevented them from instituting proceedingsand from accessing justice. Access to justice is a cornerstone of the principle of the rule of law and, under the circumstances of this case,to strictly adhere to the rule would be to deny the applicants access to justice, especially since the respondent did not present evidence tosupport the existence of substantial prejudice.

It seems to me that any definition of “exceptional circumstances” should include situations of financial distress like those in the case at bar, especially when impecuniosity results in the aggrieved parties being denied access to justice. It is especially so when the difficult financial situation is caused by the respondent’s decisions and the various proceedings that accompany those decisions. Not granting the applicants an extension of time under the circumstances of this case, which were largely beyond their control, would make it impossible for them to access justice.

It is, to my mind, still a reasonable time. Access to justice is maintained by recognizing that financial difficulties may, under certain specific circumstances, constitute “exceptional circumstances.” I would also add that the aggrieved parties must act in good faith and with due diligence, which I believe the applicants did in this case. In cases where financial difficulties are found to be exceptional circumstances, the respondent still enjoys the protection offered by the rule, namely the consideration of whether there is substantial prejudice, which there is not in this case.

The existence of substantial prejudice would prevent potential abuses. For all of these reasons, I grant the applicants an extension of time until September 30, 2013, the date the application was filed. [paras. 25-27] [ 13 ] I do not share the motion judge’s opinion. The case law indicates that impecuniosity is not in itself an exceptional circumstance without evidence of another unexpected or unanticipated event. There is no finding of fact or evidence filed by the respondents to support such a finding. [ 14 ] The motion record as a whole reveals the following: 1) Ms.

Couture is not unfamiliar with the legal system, because she sought the reversal of another decision previously made by the Minister: Chez Couture et Ami(es) Inc. v. New Brunswick (Minister of Social Development), 2012 NBQB 356 , 399 N.B.R. (2d) 318; 2) commencing an application is no impediment for a businesswoman with at least 23 years of experience; 3) she gives no reasons explaining why she did not comply with the time limit, although despite the fact her lawyer pointed out the urgency of the situation as early as May 24, 2013. [ 15 ] In my view, Ms. Couture’s affidavit is wanting.

She does not explain in her affidavit that she was unaware of the time limit. She obviously could have represented herself when filing the notice of application and later retained a lawyer to perfect the application if she felt that she needed a lawyer’s assistance at that stage. I concur with Stratas J.A. in Powell : “there is no evidence that [the respondents’] impecuniosity prevented [them] from preparing and filing a short notice of application within the [prescribed] period.” Finally, Ms.

Couture claims that she cannot afford to retain a lawyer, but no evidence has been filed concerning the amount of the retainer. I find that, in this case, Ms. Couture has not provided a satisfactory explanation for the delay. The fact that the respondents in this particular case could not afford to retain a lawyer is not an exceptional circumstance that justifies the failure to comply with the time limit set out in Rule 69.03 . [ 16 ] I am, therefore, of the opinion that the appeal should be allowed without costs, since none were sought. ____________________________________ M.E.L.

Larlee, j.c.a. ____________________________________ Alexandre Deschênes, j.c.a. ____________________________________ B. Richard Bell, j.c.a.