Howe v. Nova Scotia Barristers’ Society, 2020 NSSC 229

SUPREME COURT OF Nova Scotia Citation: Howe v. Nova Scotia Barristers’ Society , 2020 NSSC 229 Date: 20200902 Docket: Hfx 470698 Registry: Halifax Between: Lyle D. Howe Applicant v. Nova Scotia Barristers’ Society Respondent DECISION Judge: The Honourable Justice Jamie Campbell Heard: August 19, 2020, in Halifax, Nova Scotia Counsel: Laura McCarthy, for the Applicant Bernadine MacAulay, for the Respondent [ 1 ] Lyle Howe has made a motion to have a Consent Dismissal Order set aside. The order relates to his Notice of Judicial Review of decisions made by the Nova Scotia Barristers’ Society. Mr.

Howe and the NSBS agreed to the dismissal of the Judicial Review by a consent order that was signed by counsel and filed with the court. Mr. Howe’s argument is that because he agreed to the dismissal of the judicial review based on a mistaken understanding that the Court of Appeal would address the issues that he raised in the judicial review, the dismissal of the judicial review should be set aside. Facts [ 2 ] Mr. Howe has filed a lengthy affidavit containing the materials relating to the judicial review and his Notice of Appeal to the Nova Scotia Court of Appeal. The entire document is over 500 pages long.

Despite that however, the facts that are relevant to the disposition of this motion can be summarized briefly. [ 3 ] On July 17, 2017 the NSBS found that Mr. Howe had engaged in misconduct contrary to the Code of Professional Conduct. On October 20, 2017, the NSBS issued a decision by which Mr. Howe was disbarred from the practice of law. Mr. Howe filed a Notice for Judicial Review of both decisions on November 27, 2017.

He also filed a Notice of Appeal with the Nova Scotia Court of Appeal on December 4, 2017. [ 4 ] The NSBS took the position that judicial review proceeding should be quashed, as an abuse of process. They claimed that because there was a statutory right of appeal in the legislation, it was an abuse of process to proceed with judicial review of the same decision on essentially the same grounds. February 8, 2018 was set as the date to hear the NSBS motion to dismiss the judicial review. Documents were filed by the NSBS in advance of the scheduled hearing date. Mr. Howe’s brief was due on February 1, 2018.

The day before that, Mr. Howe had requested and the NSBS agreed to the dismissal of the judicial review without costs to either party. The consent dismissal order was signed on February 1, 2018 and was issued by the court on February 5, 2018. [ 5 ] Mr. Howe went ahead with the proceedings in the Court of Appeal. The decision was released by the Court of Appeal on October 24, 2019. Mr. Howe has applied for leave to appeal that decision to the Supreme Court of Canada.

[6] Mr. Howe explained that at the Court of Appeal he specifically raised the issue about inaccurate statements made by otherlawyers. He argued that he was disbarred for making inaccurate statements that were no worse than those made by other lawyers. Mr.Howe said that it was his reasonable belief that the Court of Appeal would have addressed that issue raised in the appeal. The Court ofAppeal did not, in Mr. Howe’s opinion, address the issue of the norms for unintentional misstatements and his assertion of the unequaltreatment of him by the NSBS. [7] Mr.

Howe says that he agreed to the consent dismissal order with the belief that issues would be dealt with by the Court ofAppeal and they were not. He says that he consented to the dismissal of the judicial review as a result of this mistaken, though reasonable,view. Jurisdiction [8] Mr. Howe argues that Nova Scotia Civil Procedure Rule 82.22 provides for re-opening a proceeding. [9] The Rule says that a party to a proceeding concluded by a final order may make a motion to vary the order only in one of threecircumstances. One is when there is an error to be corrected or time extended.

One is where legislation permits the order to be varied. Andone is where the text of the order would have it apply in circumstances in which it is not intended to apply. None of those circumstancesapply here. [10] Rule 82.22(3) says that a party may make a motion to re-open a hearing of proceeding concluded by final order “only in thelimited circumstances in which the re-opening is permitted by law”. The question is whether this is one of those limited circumstances. [11] The court does have inherent jurisdiction beyond the Civil Procedure Rules to set aside a decision. Mr.

Howe has put forwardseveral cases in support of that proposition. [12] In Van de Wiel v. National Life Assurance Company 2002 NSSC 209, the inherent jurisdiction of the court is discussed. In thatcase the court set aside an order dismissing the case that was issued on the understanding that the party did not want to proceed. Theevidence showed that the party did, in fact, want to proceed with the action but her counsel had failed to communicate that to the court. [13] In Perfaniuk v. Ladobruk and Canadian Home Assurance Co. (MB CA), the defendant failed to provide noticeof the lawsuit to his insurer.

The insurance company did not have an opportunity to defend the claim. The court was satisfied that therehad been a procedural error that had created an unfairness. [14] In Goodwin v. Rodgerson 2002 NSCA 137, the Court of Appeal noted that the power to set aside a final order is a proceduralconcept and courts must be cautious in exercising the power which should not be used to effect changes in substantive law. As in Van deWiel the court set aside the Prothonotary’s decision to dismiss a civil claim because the plaintiff’s lawyer failed to file a notice of intentionto proceed within 30 days.

The court exercised its inherent jurisdiction to correct an injustice that arose from a procedural error. [15] In each of these cases, there was a procedural mistake of some kind that led to an injustice that had to be corrected. The inherentjurisdiction is to account for procedural mistakes or oversights. Setting aside a consent order is quite a different thing. That amountsessentially to undoing a deal. [16] The distinction between the correction of procedural oversights and mistakes and undoing the deal was noted by the Court ofAppeal in Gates Estate v. Pirate’s Lure Beverage Room 2004 NSCA 36.

The court noted that the rationale for not varying consent ordersthat resolve substantive issues is that the orders give effect to agreements reached by the parties after negotiations. Those negotiations mayinclude the litigants compromising their strict legal rights. Once the court accepts that agreement by issuing the consent order “thenegotiated terms and the finality the parties sought by their agreement should be respected”, para. 28. [17] Gates Estate referred to an earlier case cited in both Van de Wiel and Goodwin. In Golden Forest Holdings Ltd. v.

The Bank ofNova Scotia (1990), (NS CA), 98 N.S.R. (2d) 429 (NSCA), Justice Hallett noted that the court does not have the powerto vary a consent order that gives effect to a settlement unless the settlement agreement itself could be varied. Justice Hallett cited theOntario Court of Appeal case, Monarch Construction Ltd. v. Buildevco Ltd. et. al. (1988) 26 C.P.C. (2d) 164 (Golden Forest HoldingsLtd., para. 10). A consent judgment is final and binding and can only be amended when it does not express the real intention of the parties or where thereis fraud.

In other words, a consent judgment can only be rectified on the same grounds on which a contract can be rectified. [18] The consent order is like a contract. It is a deal. [19] The order sought to be set aside here was dispositive of the case. Consent was not obtained by fraud or misrepresentation. Theagreement was not illegal. The agreement was not obtained under duress. There was no mutual mistake of fact. Mr. Howe hoped for andperhaps even anticipated a different outcome at the Court of Appeal. That is not a mistake of fact. Defeated expectations are not the sameas a mistake of fact. [20] Mr.

Howe argues that the Court of Appeal did not even address the issues that he raised. He says that he did not receive a hearingon those issues. With respect, that is equating being answered with being heard. The Court of Appeal heard Mr. Howe on the issues thathe raised. The fact that the Court of Appeal or any court does not specifically address each argument, or each piece of evidence, putforward by a litigant is not the same as not hearing the litigant. [21] When the NSBS made a motion to dismiss the judicial review application Mr. Howe could have argued that it should not havebeen dismissed.

He could have discontinued the judicial review, paid costs to the NSBS and reserved the right to have the judicial reviewstarted again. Or, he could have, and in fact did, consent to the dismissal of the judicial review without paying any costs. That was anegotiated settlement of the dispute. [22] In the absence of duress, fraud, misrepresentation or mistake of fact this court does not have the jurisdiction to set aside a consent

order issued by the court that gives effect to a properly negotiated resolution of the case. [ 23 ] Even if the court had that jurisdiction, I would decline to exercise it in the context of this case. An agreement to dispose of a case must have meaning. If reasons are put forward to set aside that agreement, they would have to be compelling. Mr. Howe’s argument that he entered the agreement with the reasonable assumption that the Court of Appeal would address each and every one of the issues he raised is not well founded. Courts are not obliged to address the specifics of every argument put before them.

To expect otherwise is not a reasonable expectation. [ 24 ] Mr. Howe says that the circumstances have changed since the consent dismissal order was issued. He says that he could not have anticipated that the Court of Appeal would not have addressed his issues and that is a changed circumstance or a newly discovered fact. That is not a changed circumstance. And it is not a newly discovered fact. It is something that happened after the fact and is just a restatement of the defeated expectations.

A litigant cannot reasonably assume that each issue will be traversed, that answers given to each question raised or that assessments will be provided for each piece of evidence. [ 25 ] The motion is dismissed with costs to the Nova Scotia Barristers’ Society in the amount of $750. Campbell, J.