Meadus v. Meadus, 2011 NLCA 57

Date: 20110907 Docket: 11/65 Citation: Meadus v. Meadus , 2011 NLCA 57 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : SUZANNE MEADUS APPLICANT AND : CORY MEADUS RESPONDENT Coram: Green, C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (Family Division) 201002F0696 Application Heard: September 6, 2011 Judgment Rendered: September 7, 2011 Reasons for Judgment by Green, C.J.N.L.

Counsel for the Applicant: Daniel Glover The Respondent representing himself Green, C.J.N.L.: [ 1 ] Suzanne Meadus, the applicant, sought leave to appeal what she styled as “an order or decision of an unidentified judge” of the Family Division denying her a hearing in an application for

summary judgment or, alternatively, for directions as to how to proceed with respect to previous litigation in the court. [ 2 ] The facts in this bizarre situation, as relayed to the Court by counsel for Ms. Meadus, are these. Counsel forwarded the application to the registry of the Family Division for issuance. In it he stressed his client’s financial extremis resulting from the alleged failure of Mr. Meadus to comply with previous court orders, for which he had been cited for contempt (an order that is presently under appeal by Mr. Meadus), and asking that the matter be heard on an expedited basis.

Alternatively, he asked for an order for directions as to how to proceed. On the following business day, the papers were returned to him, without having been issued, with a “post-it” note attached, with handwriting on it, which read:

The Court cannot issue an Interim Appl. for

Summary Judgment. You will need to bring this matter back on for CMM to seek thisrelief.” [3] Counsel for Ms.

Meadus explained that he found this response concerning, not only because of the vagueness and informalityof it, but also because it effectively prevented him from making submissions about the importance of having the matter heard on anexpedited basis pursuant to rule 56A.71 of the Rules of the Supreme Court, 1986 and as an interim application under rule 56A.16, or of atleast seeking directions under those rules, taking into account the alleged urgency of the situation in the light of the full nature of theFamily Division’s regular docket. [4] Upon receipt of the returned documents, counsel for Ms.

Meadus telephoned a clerk in the registry to inquire why thedocuments had not been issued and not formally placed in front of a judge for consideration. He was referred to the “chief clerk”, whoindicated that a judge had been asked about whether the documents should be issued and the return of the documents to counsel “waswhat was decided”. When the chief clerk was asked the name of the judge, the answer given was, “We’ll get back to you”.

Whennothing more was heard, counsel filed a notice of appeal seeking leave to appeal and, if granted, to appeal from the decision of “anunidentified judge”. [5] It appears, therefore, that the note was affixed, not by a judge, but by a clerk of the court. The name of the clerk has not beendisclosed.

There is also the suggestion that the action taken by the clerk followed upon some sort of informal consultation with, orperhaps instruction by (it is not clear which), a judge whom the court staff have either failed or refused to identify. [6] For the purposes of this hearing, I have to proceed on the basis that the decision to return the documents, unissued, to counselfor Ms. Meadus was an administrative act, not a judicial one.

Generally speaking, the documentation supporting claimed relief in aproceeding has to be issued by the court and formally placed before a judge before any decision resulting therefrom can be considered ajudicial decision. A judge can only act in a judicial capacity once the procedural mechanisms of the court process are properly invoked.(There are, of course, exceptions to this, as, for example, where an ex parte injunction is sought on an urgent basis at a time when thecourt registry is not open; in that sense, a judge can exercise judicial powers on a 24/7/365 basis).

As well, to the extent that the clerk’sactions were motivated or directed by the comments of a judge, they must, given the informality of the way in which the commentsappear to have been made and the absence of any apparent record, be treated not as an attempt by the judge to make a formal ruling thatwas intended to form part of the record of the court. [7] This Court may only entertain appeals from judicial decisions. Section 5(1) of the Judicature Act, R.S.N.L. 1970, c. J-4provides that an appeal lies to the Court of Appeal “from an order” of the court below.

An “order” is defined as “an order of the Courtand includes a judgment, decree or ruling”: s. 2(l).

Subsection 5(3) provides that the Court has and may exercise “appellate jurisdiction,with such original jurisdiction as may be necessary or incidental to the determining of any appeal…” The combined effect of theseprovisions is that this Court’s jurisdiction is engaged only when an appeal is taken from a decision that can be characterized as ajudgment, decree or ruling that results from properly invoking the remedial jurisdiction of the court below, and the Court’s originaljurisdiction is limited to that which may be necessary or incidental to the exercise of the appellate jurisdiction. [8] Inasmuch as we appear to be dealing only with an administrative, and not a judicial, decision, this Court cannot exercise anyappellate jurisdiction over it and, hence, no original jurisdiction relating to it either.

The power of the Court of Appeal referred to in rule57.23(1)(b), to “make any order which might have been made by the court appealed from” only becomes operative once the jurisdictionto hear an appeal is properly engaged. I leave open the question as to whether there is an inherent jurisdiction in the Court to make otherorders, such as orders of mandamus, that may be necessary to ensure that the administration of justice operates correctly so that decisionsare made in a proper format and appeal rights can be properly invoked.

Ubi ius ibi remedium. [9] Even if this Court has jurisdiction to issue a mandamus requiring that the matter be heard by a judge, I would not be preparedto make such an order at this point because there is nothing before me to suggest that a demand was subsequently made to theadministrative staff to present the matter to a judge in a formal way with a request to overrule the administrative act of the clerk and thatthat demand was refused. A demand and refusal is generally a condition of the granting a mandamus: Johns-Manville Canada Inc. et alv. Newfoundland (1985), 51 Nfld. & P.E.I.R. 338 (NFSC).

Indeed, counsel for Ms. Meadus conceded that the current application was nota formal application for a mandamus. [10] The application for leave to appeal from this administrative decision cannot therefore be entertained in its present form. Theapplication is stayed until further notice. [11] Nevertheless, since the decision in question essentially purports to slam the access door of justice in a litigant’s face, it hasserious consequences and is deserving of comment.

For the rule of law to be meaningful, it depends on the ability of citizens withpotential legal grievances having access to the court system to have those perceived grievances dealt with. The only exception to thisprinciple is if the person seeking access to the court has previously disentitled himself or herself from invoking the jurisdiction of thecourt as a result of having been declared a vexatious litigant or otherwise has specifically, for good and sufficient reason, been made thesubject of a court order that restricts access. [12] As this Court has noted in Seadane International Inc. v.

Morgan International Marketing Co. et al (1999), (NL CA), 180 Nfld. & P.E.I.R. 97 (NFCA), the administration of justice operates on the basis of the general principle of universal accessto the courts. The right of access to the courts encompasses within it the right to commence any type of claim.

As I noted in Clancey v.Clarke Transport Canada Inc. et al (1998), (NL CA), 160 D.L.R. (4th) 621 (NFCA) at para 35: [N]o potential litigant is to be refused consideration, at the filing counter, of any claim however novel or infelicitously expressed. [13] Accordingly, it is not up to an administrative official to decide, in the absence of a prior judicial directive (not merely theexpression of an informal opinion), whether to allow a potential litigant the opportunity to seek adjudication on a matter that on its faceappears to have been submitted in good faith.

To countenance otherwise, would be to allow a non-judicial determination of a good faithclaim without allowing the party submitting the claim to be heard, even on preliminary issues such as jurisdiction, standing andjusticiability.

[ 14 ] At the very least a potential litigant is entitled to be heard by a judicial officer even if the claim is novel or unusual. While this does not mean that in all cases, “being heard” necessarily requires an oral hearing, it does, at the least, if the court is disposed to reject a claim, require that the party submitting the claim be notified of the specific concerns of the court and be given an opportunity to make submissions, either orally or in writing, on those matters of concern.

It also requires a reasoned decision (however terse), entered as part of the record of the court, from which a proper appeal can be taken if the party whose claim is rejected believes error has been made. [ 15 ] The applicant is advised to bring the comments in this Decision to the attention of the Administrator of the Family Division and to renew his request that the matter be placed before a judge for consideration.

If the Administrator persists in refusing to do so, consideration could be given at that point to the making of a formal application for a mandamus against the administrative officer in question, either in the General Division or, possibly, in this Court. If, on the other hand, the matter is placed before the judge and he or she has questions as to the appropriateness of the application or questions jurisdiction, standing or justiciability, the applicant should be given an opportunity to be heard before being denied access to the court.

The rule of law requires no less. [ 16 ] It is also appropriate to make one further comment. This is the second time this year that this Court has been made aware of “decisions” purportedly being recorded by way of notations on post-it notes attached informally to court documents. In a previous case involving the same parties, this Court had to refer another matter back to the Family Division for a proper decision because of a lack of record and reasons for the decision purportedly made. See Meadus v. Meadus , 2011 NLCA 46 . [ 17 ] The Family Division is part of a superior court. It is a court of record.

It must carry out its functions in accordance with professional standards. Use of post-it notes cannot be said to be a proper endorsement on the record. The paucity of information, with no references to dates and acknowledgement of authorship, makes the record completely inadequate. It does not distinguish judicial from administrative decisions and gives no indication of the intended legal consequences of what is written. [ 18 ] Decision by post-it note is simply not acceptable. J. D. Green, C. J.N.L.