2015 NBCA 18, 2015 NBCA 18

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 78-13-CA SARAH ELIZABETH BROOKS APPELLANT SARAH ELIZABETH BROOKS APPELANTE - and - - et - THE LAW SOCIETY OF NEW BRUNSWICK, PETER SEHEULT and NEW BRUNSWICK POLICE COMMISSION RESPONDENTS BARREAU DU NOUVEAU-BRUNSWICK, PETER SEHEULT et COMMISSION DE POLICE DU NOUVEAU-BRUNSWICK INTIMÉS Brooks v. The Law Society of New Brunswick et al., 2015 NBCA 18 Brooks c.

Barreau du Nouveau-Brunswick et autres, 2015 NBCA 18 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Green CORAM : l’honorable juge Larlee l’honorable juge Richard l’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: June 14, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 14 juin 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 204 Décision frappée d’appel : 2013 NBBR 204 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: January 28, 2015 Appel entendu : le 28 janvier 2015 Judgment rendered: April 2, 2015 Jugement rendu : le 2 avril 2015

Counsel at hearing: For the appellant: Sarah E. Brooks appeared in person For the respondent Law Society of New Brunswick: Philippe M. Frenette For the respondents Peter Seheult and New Brunswick Police Commission: Frederick C. McElman, Q.C. Avocats à l’audience : Pour l’appelante : Sarah E. Brooks a comparu en personne Pour l’intimé Barreau du Nouveau-Brunswick : Philippe M. Frenette Pour les intimés Peter Seheult et Commission de police du Nouveau-Brunswick : Frederick C. McElman, c.r.

THE COURT The appellant’s motion for various relief is dismissed with two sets of costs of $1,000, one payable to the Law Society of New Brunswick and the other to Peter Seheult and the New Brunswick Police Commission. The appeal is dismissed with two sets of costs of $3,000 similarly payable. LA COUR La motion de l’appelante dans laquelle elle sollicitait diverses mesures réparatoires est rejetée avec deux masses de dépens de 1 000 $, l’une payable au Barreau du Nouveau-Brunswick et l’autre à Peter Seheult et à la Commission de police du Nouveau-Brunswick.

L’appel est rejeté avec deux masses de dépens de 3 000 $, payables de la même manière. The following is the judgment delivered by THE COURT [ 1 ] Sarah Elizabeth Brooks commenced an action against the Fredericton City Police; the Chief of Police; six police officers; the City of Fredericton; the New Brunswick Police Commission and its Chair, Peter Seheult; the Law Society of New Brunswick; and three Crown Prosecutors. By Notice of Motion, the New Brunswick Police Commission and Mr. Seheult, sought an order, under Rules 23.01(1)(

a) and (

b) of the Rules of Court, striking the Amended Statement of Claim for failing to disclose a cause of action. If that order were granted, they asked the Court to convert the motion into a Motion for Judgment dismissing the action pursuant to Rule 37.10(

a) or, alternatively, for the Court to issue judgment dismissing the action under Rule 22.04(3). In a separate motion, the Law Society sought similar relief. In a decision reported at 2013 NBQB 204 , 405 N.B.R. (2d) 175, a judge of the Court of Queen’s Bench struck out the pleading. The motion judge did not, however, pronounce on the further relief that was sought pursuant to either Rule 37.10(

a) or 22.04(3). Ms. Brooks appeals the motion judge’s decision. The respondents take an opposite view, stating the decision should be upheld and also asking that the additional relief be ordered. [ 2 ] Nine days before the appeal was to be heard, Ms. Brooks filed a motion seeking various forms of relief: (1) the recusal of the Court of Appeal panel hearing the appeal; (2) a declaration that certain sections of the Police Act , S.N.B. 1977, c.

P-9.2, be found unconstitutional and of no force and effect; (3) the Court of Appeal give directions as a preliminary matter on certain questions of law the appellant raised in her motion; (4) the Court of Appeal provide an appropriate remedy for or order a hearing on constitutional and Charter violations she alleges have occurred; (5) the Court of Appeal assess costs against the respondents with regard to the defence of the appellant’s action in the Court of Queen’s Bench; and (6) adjournment.

[3] We dismissed the motion with reasons to follow. Here are the reasons: 1) The panel hearing the appeal is not biased. Moreover, there is a total absence of evidence that would cause an informed, prudentand reasonable person to believe there is a real possibility of bias in the circumstances (we will expand on this below). 2) A preliminary motion before an appeal (as opposed to a ground of appeal) is a rare place to attack various sections of a statute.Moreover, in R. v. Brown, (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J.

No. 82 (QL), L’Heureux-Dubé J., in dissent,summarized the following three prerequisites to be satisfied to permit the raising of a new issue, including a Charter challenge, for thefirst time on appeal: “[f]irst, there must be a sufficient evidentiary record to resolve the issue. Second, it must not be an instance in whichthe accused for tactical reasons failed to raise the issue at trial. Third, the court must be satisfied that no miscarriage of justice will resultfrom the refusal to raise such new issue on appeal” (para. 20). These criteria have since been adopted and followed in our Court: InLanglais v.

R., 2008 NBCA 20, 328 N.B.R. (2d) 201, at para. 5; Black v. R., 2010 NBCA 36, 360 N.B.R. (2d) 132, at para. 3, leave toappeal refused [2010] S.C.C.A. No. 325 (QL); Black v. R., 2010 NBCA 65, 363 N.B.R. (2d) 316, at para. 5, leave to appeal refused[2010] S.C.C.A. No. 469 (QL); Hachey v. R., 2012 NBCA 14, 383 N.B.R. (2d) 197, at para. 5; C.M.H. v. J.R.H., 2012 NBCA 71, 393N.B.R. (2d) 154, at para. 29 and Downey v. R., 2012 NBCA 78, 392 N.B.R. (2d) 238, at para. 6.

The first of these criteria was not metand we are unable to deal with the request. 3) It is not the role of the Court of Appeal to give directions on the law to a party to an appeal.

While the Court does provide as muchassistance as possible to a self-represented party on procedural matters, the fact remains that the trial and appeal process remains anadversarial process with each party responsible to present their arguments and the Court to impartially adjudicate on the merits. 4) We are not able to entertain arguments on the alleged Charter and other constitutional violations raised in the Notice of Motionsubstantially for the same reasons given in item 2 above. 5) The matter of costs against the Law Society of New Brunswick or the New Brunswick Police Commission is one to be determinedafter the hearing of the appeal and not one that can be determined in a motion before the appeal is heard. 6) No valid case has been made to adjourn the hearing of the appeal. [4] We do wish to expand on the bias allegation.

Not only did Ms. Brooks allege actual bias on thepart of the entire panel, she informed the Court she would report the panel to the Canadian Judicial Council should the panel rule againsther motion for recusal. She was immediately advised that such a threat has no bearing on the matter and would not influence in anymanner the members of the panel. It is the duty of all judges to “exercise their judicial functions independently and free of extraneousinfluence”: Canadian Judicial Council, Ethical Principles for Judges,

Chapter 2 – Principle 1. To borrow from the commentary in thatchapter, a “judge’s duty is to apply the law as he or she understands it without fear or favour and without regard to whether the decisionis popular or not” (p. 4). A judge who does not exercise his or her judgment fearless of threats of a complaint to the Canadian JudicialCouncil is not properly demonstrating what has been described as “the foundation of judicial impartiality”: judicial independence. Forthese reasons, Ms. Brooks’ threats have fallen on totally deaf ears. [5] The grounds advanced in support of Ms.

Brooks’ recusal motion stem from her losses beforethis Court in previous instances. At the root of most of Ms. Brooks’ contentions is her obsessively held belief that she has been defraudedof sufficient spousal support as a result of a conspiracy between her own family solicitor and the one representing her ex-husband.Notwithstanding the fact that this alleged fraud has never been adjudicated in court in any matter in which the alleged perpetrators havehad an opportunity to rebut what are until now mere allegations, Ms. Brooks expected the Court of Appeal to find fraud and makesweeping declarations.

Since the Court has not done so in any of the previous proceedings before it, she accuses the Court of having“conspired and colluded to conceal” the alleged fraud and “violated [her] Charter Rights to an impartial and unbiased tribunal”. Frankly,her arguments are contemptuous. They betray a flawed understanding of the role of an appellate court, which has limited inherentjurisdiction, and generally limits itself to the questions properly raised before it. [6] Allegations of bias are serious allegations.

With limited exceptions, in cases of necessity,judges have both an ethical and a legal duty not to adjudicate matters in which they either believe they will be unable to judge impartiallyor that a reasonable, fair minded and informed person would have a reasoned suspicion of conflict. Thus, there is both a subjective andan objective component to the bias test when broad allegations, such as those in the present case, are made. To explain the relevantprinciples, we can do no better than quote extensively from the reasons of Cory J. for the majority of the Supreme Court in R. v.

S.(R.D.), (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 (QL). First, he addresses the question: What is Bias?:

It may be helpful to begin by articulating what is meant by impartiality. In deciding whether bias arises in a particular case, it isrelatively rare for courts to explore the definition of bias. In this appeal, however, this task is essential, if the Crown’s allegation againstJudge Sparks is to be properly understood and addressed. See Prof. Richard F. Devlin, “We Can’t Go On Together with SuspiciousMinds: Judicial Bias and Racialized Perspective in R. v. R.D.S.” (1995), 18 Dalhousie L.J. 408, at pp. 438-39. In Valente v.

The Queen, (SCC), [1985] 2 S.C.R. 673, at p. 685, Le Dain J. held that the concept of impartialitydescribes “a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case”. He added that “[t]heword ‘impartial’ . . . connotes absence of bias, actual or perceived”. See also R. v. Généreux, (SCC), [1992] 1 S.C.R.259, at p. 283. In a more positive sense, impartiality can be described – perhaps somewhat inexactly – as a state of mind in which theadjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.

In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particularissues. A helpful explanation of this concept was provided by Scalia J. in Liteky v.

U.S., 114 S.Ct. 1147 (1994), at p. 1155: The words [bias or prejudice] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate,either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal jurorwho has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because itis excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant’s prior criminalactivities that he will vote guilty regardless of the facts). [Emphasis in original.] Scalia J. was careful to stress that not every favourable or unfavourable disposition attracts the label of bias or prejudice.

For example, itcannot be said that those who condemn Hitler are biased or prejudiced. This unfavourable disposition is objectively justifiable – in otherwords, it is not “wrongful or inappropriate”: Liteky, supra, at p. 1155. A similar statement of these principles is found in R. v. Bertram, [1989] O.J. No. 2123 (H.C.), in which Watt J. noted at pp. 51-52: In common usage bias describes a leaning, inclination, bent or predisposition towards one side or another or a particular result.

In itsapplication to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave thejudicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officerunable to exercise his or her functions impartially in a particular case. See also R. v. Stark, [1994] O.J. No. 406 (Gen. Div.), at para. 64; Gushman, supra, at para. 29. Doherty J.A. in R. v. Parks (1993), (ON CA), 15 O.R. (3d) 324 (C.A.), leave to appeal denied, [1994] 1 S.C.R. x, heldthat partiality and bias are in fact not the same thing.

In addressing the question of potential partiality or bias of jurors, he noted at p. 336that: Partiality has both an attitudinal and behavioural component. It refers to one who has certain preconceived biases, and who will allowthose biases to affect his or her verdict despite the trial safeguards designed to prevent reliance on those biases. In demonstrating partiality, it is therefore not enough to show that a particular juror has certain beliefs, opinions or even biases.

It must bedemonstrated that those beliefs, opinions or biases prevent the juror (or, I would add, any other decision-maker) from setting aside anypreconceptions and coming to a decision on the basis of the evidence: Parks, supra, at pp. 336-37. This analysis is certainly not exhaustive. Different factors may determine the issue where, for example, the allegation relates to directpecuniary bias or some other personal interest in the outcome of a case.

Yet the concepts articulated can be used as guiding principles inthe consideration of this case. [paras. 103-108] [7] The subjective component of the bias test consists of a judge charged to adjudicate considering

whether he or she would be able to judge impartially. If the judge comes to the conclusion that he or she could not, then, barring certainrare exceptions, the judge must proceed no further. [8] The objective component of the bias test is what is referred to as “reasonable apprehension ofbias”. It is the test that is generally applied, because the subjective component generally stops with the judge either recusing or movingon to the objective component.

Justice Cory addresses this component as follows: When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to areasonable apprehension of bias. Idziak, supra, at p. 660. It has long been held that actual bias need not be established. This is so becauseit is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind. SeeNewfoundland Telephone, supra, at p. 636.

It was in this context that Lord Hewart C.J. articulated the famous maxim: “[it] is of fundamental importance that justice should not onlybe done, but should manifestly and undoubtedly be seen to be done”: The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B.256, at p. 259. […] The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons inCommittee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394: [T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the questionand obtaining thereon the required information. . . . [The] test is “what would an informed person, viewing the matter realistically andpractically – and having thought the matter through – conclude. …” This test has been adopted and applied for the past two decades.

It contains a two-fold objective element: the person considering thealleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. SeeBertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge ofall the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised alsoof the fact that impartiality is one of the duties the judges swear to uphold”: R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14.

See alsoStark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should alsobe taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgementof the prevalence of racism or gender bias in a particular community. The appellant submitted that the test requires a demonstration of “real likelihood” of bias, in the sense that bias is probable, rather than a“mere suspicion”.

This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee forJustice and Liberty, supra, at pp. 394-95: I can see no real difference between the expressions found in the decided cases, be they ‘reasonable apprehension of bias’, ‘reasonablesuspicion of bias’, or ‘real likelihood of bias’.

The grounds for this apprehension must, however, be substantial and I entirely agree withthe Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulousconscience”. [Emphasis added.] Nonetheless the English and Canadian case law does properly support the appellant’s contention that a real likelihood or probability ofbias must be demonstrated, and that a mere suspicion is not enough. See R. v. Camborne Justices, Ex parte Pearce, [1954] 2 All E.R. 850(Q.B.D.); Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.); R. v.

Gough, [1993] 2 W.L.R. 883 (H.L.); Bertram, supra,at p. 53; Stark, supra, at para. 74; Gushman, supra, at para. 30. Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for afinding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicialintegrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, butthe integrity of the entire administration of justice.

See Stark, supra, at paras. 19-20. Where reasonable grounds to make such anallegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly. The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30.

Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case. Finally, in the context of the current appeal, it is vital to bear in mind that the test for reasonable apprehension of bias applies equally toall judges, regardless of their background, gender, race, ethnic origin, or any other characteristic. A judge who happens to be black is nomore likely to be biased in dealing with black litigants, than a white judge is likely to be biased in favour of white litigants.

All judges ofevery race, colour, religion, or national background are entitled to the same presumption of judicial integrity and the same high thresholdfor a finding of bias. Similarly, all judges are subject to the same fundamental duties to be and to appear to be impartial. [paras. 109-115] [9] Neither of the respondents filed any evidence in response to the motion, although they filedwritten submissions and argued there was no merit to any of the relief sought. Ms. Brooks argued that their failure to file affidavits meanther motion was not contested.

She claimed the use of a brief of law instead of an affidavit “is unacceptable and constitutes an abuse of theprocess of the Court” and that such use, along with other materials filed by the parties, confirms the lawyers for these parties are “fullycomplicit in [the] dishonest acts, and acts of bad faith, perpetrated against” her. Unfortunately, such specious allegations are characteristicof Ms. Brooks’ approach to many who have crossed her path and refused to accept at face value the multiple allegations she levelsagainst others.

In fact, these are exactly the type of allegations she leveled against the members of the panel in her arguments in supportof recusal. For example, she has even stated that “this Court has now actively participated in misconduct that has put, and continues toput, the appellant’s very life in danger,” ostensibly because the Court has not ruled in favour of her many allegations. Pointing to this andother allegations, counsel for the Police Commission argued on the motion that the mere fact that Ms. Brooks believes something doesnot make it so. We agree. [10] As Bastarache J. did in Arsenault-Cameron v.

Prince Edward Island, (SCC),[1999] 3 S.C.R. 851, [1999] S.C.J. No. 75 (QL), each member of the panel individually considered the first issue raised in the motion asif it were an application for recusal addressed to each individual judge. Each one of us considered first whether she or he had a state ofmind that in any way predisposed to a particular result or that was closed to a particular issue. Each one of us individually concluded thather or his state of mind was disinterested in the outcome and open to persuasion by the evidence and submissions.

We use the word“disinterested” in the sense that a disinterested person is impartial and has no stake in the outcome. Thus, there was no subjective basisfor any of us to recuse. We each then turned to the question whether, on the evidentiary record Ms. Brooks filed in support of her motion,an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude there to be aprobability of bias. Each member of the panel answered the question in the negative. [11] It is for these reasons we dismissed Ms. Brooks’ motion in its entirety.

At the time, weindicated that costs on the motion would be addressed in our reasons. Counsel for the Law Society and counsel for Mr. Seheult and thePolice Commission responded to the motion with detailed briefs. As costs generally follow the event, their clients are entitled to costs onthe dismissal of the motion. We would therefore order one set of costs in the amount of $1,000 to the Law Society and one set to theother respondents in the same amount. [12] In her reasons for decision, the motion judge pointed out that the appellant’s action against therespondent and others relates to two main events in her life.

The appellant claims these events have caused her to suffer mental illnessesand “have prevented her from being able to train for a new career, have destroyed her family relationships, have compromised her lifeand safety, and have ‘kept her ill and a victim of crime and wrongdoing by others’” (para. 2). [13] The first event was the appellant’s hostile divorce proceedings, which commenced in 2006 andultimately caused the appellant to experience severe depression and anxiety.

The appellant asserts that the quantum of her entitlement tospousal support was incorrectly calculated in those proceedings, which led her to further assert that her former family law solicitor hadconspired with her ex-husband’s solicitor to defraud the appellant. [14] The second event relates to an incident that occurred on the evening of February 6, 2010.

Theappellant had sent emails to the Attorney General, her ex-lawyer and other parties containing allegations respecting the alleged fraud.While in a state that has been described as “intoxicated”, she made calls to the Mental Health Service Mobile Crisis Unit following whichseveral police officers came to her residence. Their attendance allegedly culminated in the appellant’s involuntary detention.

In addition,the appellant asserts that her subsequent reports respecting the alleged fraud to the Fredericton Police Force were not properly dealt withand, as well, she alleges that all defendants, including the Law Society, have, inter alia, conspired to cause her damages. [15] In ruling on the respondents’ motions, the judge of the Court of Queen’s Bench held that theappellant’s action relating to these events has no legal solution, because there is no basis for a court action in regard to either of theevents with which she is preoccupied.

The judge held that the Amended Claim filed June 27, 2012, should be struck on the basis thepleading does not disclose a cause of action as against the respondents.

[16] In support of her appeal from that decision, Ms. Brooks relies on 23 grounds.

We generallygroup them as allegations of errors of law on the part of the motion judge relating to her finding an absence of “bad faith” on the part ofthe Police Commission, failing to apply judicial notice, misapplying irrelevant case law, awarding costs, and finding the appellant’spleadings “frivolous and vexatious”. [17] The appellant also argues the motion judge erred in her assessment of the evidence (especiallywith respect to actions of police officers) and in showing bias in favour of the respondents. [18] With respect to the motion by the Police Commission and Mr.

Seheult, the motion judgeallowed it because, in accordance with s. 33.1 of the Police Act, no action lies against them for anything done or purported to be done bythem in good faith. The judge concluded the pleadings did not set out any facts that would constitute bad faith on behalf of theCommission or Mr. Seheult. From the reasons for decision, it is clear the judge understood the law with respect to bad faith: she reliedon Hamalengwa v. Bentley, 2011 ONSC 4145, [2011] O.J. No. 3477 (QL), in which Lederman J. decided a similar case with respect tothe Ombudsman of Ontario.

In so doing, we are of the view she made no error. [19] With respect to the motion by the Law Society, the motion judge noted that, according to Rule23.01(1)(b), the Court had to rely on the pleadings to determine if the moving party had demonstrated it was plain and obvious theStatement of Claim discloses no reasonable cause of action: Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959,[1990] S.C.J. No. 93 (QL). For a discussion of the “plain and obvious” test see New Brunswick Community College et al. v. Vihvelin,2015 NBCA 17.

Further, the motion judge was of the view this was one of the clearest of cases since the Law Society does not owe aprivate duty of care to individuals, but a public duty to the protection of clients and society as a whole: Edwards v. Law Society of UpperCanada, 2001 SCC 80, [2001] 3 S.C.R. 562, at para. 14 and Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537. The motion judgemade conclusions that are untainted by any reversible error in following the decisions of this Court, especially the criteria set out inSewell v.

ING Insurance Company of Canada, 2007 NBCA 42, 314 N.B.R. (2d) 330, at para. 26, and followed in Simson et al. v. DeerIsland Credit Union Limited and Barteau et al., 2012 NBCA 92, 395 N.B.R. (2d) 76, leave to appeal to the Supreme Court of Canadarefused [2012] S.C.C.A. No. 550 (QL); Enbridge Gas v. Modern Construction, 2003 NBCA 78, 264 N.B.R. (2d) 145, at paras. 20-21;and Spencer v. Laforge, 2001 NBCA 35, 237 N.B.R. (2d) 232, at paras. 10-11.

There is no basis to disturb the motion judge’s findings.As a result, the order striking the Amended Statement of Claim must stand. [20] The appellant alleges bias on the part of the motion judge. In our opinion, the appellant has notcome anywhere close to meeting the test set out in Dugas v. Gaudet et al., 2014 NBCA 7, 416 N.B.R. (2d) 389: the grounds giving riseto the apprehension of bias must be sufficiently serious to rebut the presumption the judge will abide by his or her oath of office to“[judge] a particular controversy fairly on the basis of its own circumstances (see United States v.

Morgan, 313 U.S. 409 (1941), at p.421, excerpt quoted with approval in R. v. S.(R.D. …)” (para. 5). [21] The appellant is a self-represented litigant and her notion of judicial notice does not accord withours: Murray v. New Brunswick Police Commission (2012), 389 N.B.R. (2d) 372, [2012] N.B.J. No. 211 (C.A.) (QL), at para. 10.Judicial notice may be taken of notorious and undisputed facts, or of facts the accuracy of which can be demonstrated by resort to readilyaccessible sources of indisputable reliability: AMEC Americas Limited v.

MacWilliams, 2012 NBCA 46, 388 N.B.R. (2d) 254, at para.37, leave to appeal refused [2012] S.C.C.A. No. 304 (QL). In any event, in this case, judicial notice could not be used to fill any of thegaps in the abysmal evidentiary record presented by the appellant to the motion judge. [22] Finally, a cost award is within the discretion of the judge and cannot be interfered with unless“it is founded upon an error of law, an error in the application of the governing principles or a palpable and overriding error in theassessment of the evidence”: The Beaverbrook Canadian Foundation v.

The Beaverbrook Art Gallery, 2006 NBCA 75, 302 N.B.R. (2d)161, at para. 4, referring to British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, appliedmost recently by this Court in Johnson v. State Farm Fire and Casualty Company, 2015 NBCA 4, [2015] N.B.J. No. 13 (QL), at para. 4.There was no such error in this case. Ms. Brooks argued that the decision of this Court in Tibbetts v. Newman, 2005 NBCA 37, 283N.B.R. (2d) 63, stands for the proposition that unless a judge gives reasons for ordering costs, the award cannot be maintained.

Shesupports that argument with the following statement of Ryan J.A. in that case: In Andrews v. Andrews (1980) (ON CA), 32 O.R. (2d) 29 at 36 (C.A.) the Court of Appeal held that since thediscretion to award costs is to be exercised judicially, the trial judge should, if possible, give reasons for the order as to costs. [para. 16] Andrews was a matrimonial case and the Court pointed out that in such cases the success of the parties is “not as important as in ordinarycivil litigation”. Moreover, the case stands for the proposition that, whether reasons are given or not, “[t]he Court of Appeal will not

lightly interfere with the trial Judge’s award of costs” and that, for the Court of Appeal to so interfere, “the appellant must demonstratethat the trial Judge erred in the exercise of his discretion”. In any event, Ryan J.A.’s decision in that case related to the need for a judge toexplain why there had been a deviation from the usual practice of not ordering costs to an unrepresented litigant. In contrast, in thepresent case, the judge simply followed the general rule that costs follow the event: Acadia Marble, Tile & Terrazzo Ltd. v.

OromoctoProperty Developments Ltd. (1998), (NB CA), 205 N.B.R. (2d) 358, [1998] N.B.J. No. 412 (C.A.)(QL), at para. 35;and Flieger v. Adams, 2012 NBCA 39, 387 N.B.R. (2d) 322, at para. 23. Where the judge follows the general rule and the award is notinordinately high or low, the absence of reasons, by itself, does not demonstrate error in the exercise of judicial discretion. [23] For some reason, while the motion judge ordered the striking of the Amended Statement ofClaim, she did not make an order dismissing pursuant to either Rule 37.10(

a) or 22.04(3). However, in her reasons, she concluded noneof the claims against the respondents reveal a cause of action known to law, but are frivolous and vexatious (para. 9).

Finally, since theStatement of Claim did not disclose a reasonable cause of action, it was plain and obvious to her that the appellant could not succeed ifthe matters were to proceed to trial. [24] While the respondents did not cross-appeal or file a Notice of Contention, they neverthelesssought relief pursuant to Rule 62.21(1), which authorizes the Court of Appeal to make the decision or order that ought to have been madein first instance: see J.H. v.

T.H., 2014 NBCA 52, 422 N.B.R. (2d) 388, at para. 11, where the Court applied the principle ofproportionality and decided the issue itself instead of remitting it to the Court of Queen’s Bench. In J.H. v. T.H., as in Canadian Union ofPublic Employees, Local 1773 v. Town of Shediac, 2005 NBCA 20, 280 N.B.R. (2d) 324, the Court had at its disposal the means todecide the matter. In Canadian Union of Public Employees, Local 821 v. Vitalité Health Network (Zone 1B), 2015 NBCA 3, [2015]N.B.J.

No. 14 (QL), Drapeau, C.J.N.B. states New Brunswick codified the principle of proportionality (Rule 1.02.1), which allows theCourt to consider the importance and complexity of the triable issue even if the litigation itself is not considered important or complex(para. 58). [25] We are all of the view that remitting this matter to the Court of Queen’s Bench, to have theorder made that ought to have been, would be wasteful of the parties’ time and money. Therefore, in accordance with Rules 1.02.1 and62.21(1), we are prepared to issue the order the motion judge should have directed.

Based on the conclusions of the motion judge, that:(1) no cause of action was revealed; (2) the claims were frivolous and vexatious; and (3) the actions would not succeed if they proceededto trial, and based on her striking out the Amended Statement of Claim as against the respondents, the action against the respondents isordered dismissed. [26] At the end of the reasons given to strike out the pleadings in this case, the motion judge madecertain observations regarding difficulties that often confront a judge when a party fails to adhere to the Rules of Court in draftingpleadings, and also in trying to balance the court’s obligation to “both afford the self-represented litigant access to the courts on the onehand, and on the other hand bluntly tell them they have no case” (para. 19). [27] On the first matter, the motion judge noted that the Rules of Court require pleadings to contain a“concise statement of the material facts” (Rule 27.06(1)), yet Ms.

Brooks’ Amended Statement of Claim consists of 193 paragraphs and60 pages. The judge explained her point by referring to an American decision in which the judge had to sift through an 80-page 261-paragraph “complaint” (i.e. a statement of claim) containing numerous allegations that were wholly irrelevant to the claim.

The motionjudge observed that, in the American case, Sparks J. had stated: “[t]his Court is not inclined to indulge [the claimant’s] desire forpublicity, self-aggrandizement, or vilification of Defendants, by sifting through eighty mostly unnecessary pages in search of the fewkernels of factual material relevant to his claims” (para. 17 of the motion judge’s decision). The motion judge then went on to state asfollows: This is precisely the exercise I had to go through in trying to glean some legally relevant information.

It is not the function of thejudiciary to “hunt and peck” to find what Judge Sparks calls “a few kernels of factual material relevant to his claims”. Ms. Brooks’Amended Claim was filled with improper innuendos, was prolix and, contained very little in the way of material facts. In the case of Ms.Brooks if “vast swaths” of the complaint were entirely removed there would be no remaining paragraphs of “any legally relevantinformation” because the entire Amended Claim is irrelevant. [para. 17] [28] On the second matter, the motion judge referred to the decision Robertson J.A. rendered inMurray v.

New Brunswick Police Commission and reproduced the following paragraph: Unfortunately, what courts are facing today is a cluster of cases in which the self-represented litigant is generally unwilling and, at times,hostile to the prospect of taking instruction from the court, particularly as to what can be argued. This is the litigant who is under themistaken impression they have an unfettered right to pursue their self-interests without regard to the rights of the opposing party underthe rules of evidence and the Rules of Court. These are the cases in which the simple case becomes unnecessarily complex and court

proceedings become marathon sessions. These are the cases in which the self-represented litigant operates on the mistaken assumption that if he or she is unsuccessful on any ruling it is because of bias on the part of the decision-maker. These are the litigants who, if confronted with the law, will plead ignorance and seek the court’s indulgence. Otherwise, they continue to believe they have mastered the intricacies of statutory

interpretation, the application of legal principles, doctrines and rules -- without the benefit of legal training. Often, these are the cases where the opposing party has had to retain and pay legal counsel to defend unmeritorious interlocutory proceedings in circumstances where everyone knows the self-represented litigant lacks the financial resources to pay any costs award, be it large or small.

These are cases where the self-represented litigant will expect, if not demand, that he or she be given greater and persistent access to court staff, whose primary function is to serve the public at large by accepting documents that comply with legal requirements and not to act as quasi-judicial advisors. Fortunately, most cases and most self-represented litigants do not fall within these descriptions. The law reports support this observation: e.g., Druet v. Girouard , 2012 NBCA 40 , [2012] N.B.J. No. 136 (QL).

Regrettably, it only takes a few to grind down the pace at which justice is delivered in this Province and to stretch the patience of all judges who, as a matter of fact, are truly committed to ensuring that all litigants are provided with meaningful “access to justice”. On the other hand, the extent to which Rule 76.1 will be viewed as a viable means for controlling vexatious proceedings is a matter beyond the scope of these reasons. [para. 10] [ 29 ] In our view, the motion judge’s references to the American case and to Robertson J.A.’s observations were entirely justified.

While it is the function of the justice system to serve the public, it does not give individuals a right to abuse the service. This appeal, just like the underlying action against the respondents to this appeal, is devoid of any merit. Just like the action against these respondents, the appeal is frivolous.

It is an abuse of the justice system. [ 30 ] For these reasons, the appeal is dismissed with costs of $3,000 to Peter Seheult and the Police Commission, and $3,000 to the Law Society of New Brunswick, in addition to the costs awarded above on the dismissal of the motion. _____________________________________ M.E.L. LARLEE, J.A. ______________________________________ J.C. MARC RICHARD, J.A. ______________________________________ BRADLEY V. GREEN, J.A.