College of Registered Nurses of Manitoba v Hancock, 2023 MBCA 94

Citation: College of Registered Nurses of Manitoba v Hancock, 2023 MBCA 94 Date: 20231120 Docket: AI22-30-09782 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Associate Chief Justice Shane I. Perlmutter ( ad hoc ) BETWEEN : ) S. Hancock ) on her own behalf ) ) D. E.

Swayze, K.C. the COLLEGE OF REGISTERED NURSES ) for the Respondent OF MANITOBA ) ) Appeal heard: (Applicant) Respondent ) February 27, 2023 ) - and - ) Judgment delivered: ) August 28, 2023 SHANNON HANCOCK ) ) Motion under r 46.2 of (Respondent) Appellant ) the Court of Appeal Rules ) (Civil) ) ) Decision pronounced: ) November 20, 2023 PER CURIAM Introduction [ 1 ] This is a motion for a rehearing of an appeal and other ancillary relief (the motion). [ 2 ] By way of background, on August 28, 2023, the appellant’s appeal of the vexatious litigant order restraining her from initiating or continuing litigation against the respondent and its employees or representatives, except with leave of a judge, was dismissed (see 2023 MBCA 70 [ Hancock 2023]).

No certificate of decision has been entered yet. [ 3 ] On September 29, 2023, the appellant filed the motion. She also filed a memorandum of argument in support of her motion. The respondent filed a memorandum of argument in response to the motion, which it opposes. [ 4 ] The appellant did not file a reply to the respondent’s memorandum of argument within the time period specified in r 46.2(7) of the Manitoba, Court of Appeal Rules (Civil) , Man Reg 555/88R [the CA Rules ].

The appellant’s explanation for not filing her reply within the required time is that, although the registry accepted the respondent’s memorandum of argument in opposition to the motion and she received it, the appellant objected to the form of the written submission. While the appellant can raise an objection with the Court for it to decide on, she does not have the right to grant herself a self-help remedy, relieving herself from the requirements of the CA Rules .

After considering the circumstances, we were of the view that it would be contrary to the interests of justice to grant the appellant an extension of time for the filing of a reply. [ 5 ] The ancillary relief requested is that the Chief Justice, sitting alone, rehear the appellant’s appeal and that counsel be appointed for her in litigation currently before the Court of King’s Bench involving the Winnipeg Regional Health Authority (court file

number CI16-01-03950) (the KB Action). [ 6 ] The grounds for the motion relate to allegations of a miscarriage of justice arising from claims of the ineffective assistance of counsel, fraud and bias. [ 7 ] For the following reasons, the motion is dismissed with solicitor and client costs in favour of the respondent.

Discussion The CA Rules : Rehearing [ 8 ] Rules 46.2(1) , 46.2(3) , 46.2(9) and 46.2(11) of the CA Rules provide as follows: Rehearing 46.2(1) There shall be no rehearing of an appeal except by order of the court or at the instance of the court. 46.2(3) A motion requesting a rehearing shall be in writing stating the grounds for the motion, supported by a memorandum of argument. 46.2(9) There shall be no oral argument on the motion requesting a rehearing unless by direction of the court. 46.2(11) When any documents are required to be filed pursuant to this rule, a copy shall be filed for each of the judges who heard the appeal, and one for the court record.

The Standard for Granting a Rehearing of an Appeal [ 9 ] Given the public interest in finality of litigation, the threshold for granting leave for rehearing of an appeal pursuant to r 46.2(1) is a high one, reserved only for “ exceptional circumstances, where the interests of justice manifestly compel such a course of action ” ( Willman v Ducks Unlimited (Canada) , 2005 MBCA 13 at para 9 ).

Exceptional circumstances warranting the rehearing of an appeal include ( ibid at para 10): . . . 1) there is a patent error on a material point on the face of the reasons; 2) the appeal was decided on a point of law that counsel had no opportunity to address, and which point could not have reasonably been foreseen and dealt with at the hearing; or 3) the court has clearly overlooked or misapprehended the evidence or the law in a significant respect and there is a consequential serious risk of miscarriage of justice.

Who Determines a Motion for a Rehearing? [ 10 ] As Steel JA noted in Director of Child and Family Services v AC , 2007 MBCA 59 [ AC ], “ [a] motion for a rehearing is usually considered by the panel that heard the appeal. It is that panel which is most familiar with the appeal, the oral and written submissions and the reasons for judgment ” (at para 18; see also Davis v Labour Board (Man) et al , 2007 MBCA 121 at para 2 [ Davis ]).

Buttressing that observation is the text of r 46.2(11) which makes clear that the documents required to be filed on a motion for a rehearing “shall” be provided to “the judges who heard the appeal”. Obviously, as was the situation in AC and Davis , the practice of the original panel deciding the rehearing motion is not an inflexible rule; for example, where a judge is unavailable due to a retirement or an appointment.

Communications to the Registry [ 11 ] In addition to her formal written submission, as required by r 46.2(3), the appellant attempted to make further submissions on the motion by informal communications to the registry. This is inappropriate. No party has the right to provide supplementary submissions by simply writing to the registry, the Court or individual judges without invitation. As was stated in Jhanji v The Law Society of Manitoba , 2022 MBCA 78 [ Jhanji 2022] (at para 13 ): . . .

The orderly conduct of an appeal is of importance, not just to the parties, but to the Court itself and to the administration of justice generally. More broadly, the public expects that disputes are litigated efficiently and resolved according to the rule of law. That cannot occur if the appellate process is chaotic. Both The Court of Appeal Act , CCSM c C240 (the CA Act ); and the CA Rules seek to ensure the orderly conduct of an appeal by balancing the principles of fairness, proportionality and finality.

[ 12 ] In our reasons for decision on the appeal, we were critical of the appellant’s approach of filing a formal written submission and then routinely attempting to supplement her position by writing, on her own motion, to the registry, the panel or individual judges (see Hancock 2023 at paras 123, 129-39 ). Such an approach is contrary to this Court’s comments in Jhanji 2022 and the architecture of the CA Rules .

While there are situations when the Court will relax normal procedure in the interests of justice and rely on an informal communication to the registry, such communications cannot be considered where that margin of lenience is abused, as is the situation here. The Request to Make Oral Argument [ 13 ] Ordinarily, a motion for the rehearing of an appeal is decided solely on the basis of the written materials filed by the parties (see r 46.2(9)).

Having reviewed the written materials filed by the parties and being familiar with the oral and written submissions made on the previous judgment, we are satisfied that no oral argument is necessary to decide the motion. Miscarriage of Justice Arguments [ 14 ] The appellant makes no substantive claim that our decision on her appeal contains a patent error on a material point on the face of the reasons or that the appeal was decided on a point of law that she did not have an opportunity to address.

Her request for a rehearing is based essentially on miscarriage of justice arguments. [ 15 ] A “miscarriage of justice” connotes an irregularity in a legal process of such gravity that it either renders the result unfair or it’s effect creates the appearance of an unfair process (see R v Khan , 2001 SCC 86 at para 69 ). This is an exacting standard to establish (see Samborski Garden Supplies Ltd v MacDonald (Rural Municipality) , 2015 MBCA 53 at para 23 ). [ 16 ] A significant problem with the motion is that it largely does not comply with the rules of court.

It is trite but important to recall that there are not two sets of rules of court; one for a party with a lawyer and one where the party is self-represented (see Bazan v The Assiniboine South School Division et al , 2013 MBQB 68 at paras 67-69 ).

As Monnin JA noted in Dewing v Kostiuk et al , 2017 MBCA 22 , “ there is a responsibility on self-represented persons to familiarize themselves with the relevant legal practices and procedures pertaining to the case and to ‘prepare their own case’” (at para 21). [ 17 ] The appellant is a mature individual who is familiar with the legal system based on years of litigation. In an earlier appeal involving the appellant challenging a professional discipline ruling made against her, this Court highlighted that her submissions contravened the rules of court.

This Court stated that she had a duty to familiarize herself with the relevant practices and procedures pertaining to her appeal, “prepare [her] own case and be respectful of the court process and the officials within it ” ( 2021 MBCA 20 at para 75 [ Hancock 2021]). [ 18 ] In our decision on this appeal ( see Hancock 2023 ), this Court faced a repeat of Hancock 2021.

As previously noted, we said that “ [t] he appellant [had] completely ignored the correct procedures in the CA Rules and simply engaged in an electronic letter- writing campaign with the registry and members of the judiciary ” ( Hancock 2023 at para 123 ).

As was the situation on the rehearing of Hancock 2021, this Court also received written submissions laden with “spurious allegations” ( 2021 MBCA 59 at para 11 ). [ 19 ] Unfortunately, while the appellant is well aware of her legal responsibilities and the need to respect the procedure of this Court and the officials within it, she refuses to do so. [ 20 ] We do not need to comment on every submission the appellant has made in furtherance of her motion.

Many of the submissions are on irrelevant matters, such as the conduct of lawyers opposing her in the KB Action, which is not the subject of this appeal and for which the respondent is not a party. Other submissions are based on new factual accusations without any admissible evidence to support them put forward in the manner required by r 21 of the CA Rules . An example of this is the appellant’s allegation of fraud and other dishonest conduct made against the respondent and various lawyers in relation to obtaining the vexatious litigant order against her.

Our silence in relation to any of the appellant’s claims should be taken to mean that the argument has no merit. [ 21 ] The issues raised by the appellant are repetitive and overlap. She essentially makes three miscarriage of justice arguments raising a concern as to the ineffective assistance of counsel, the vexatious litigant order being obtained against her based on fraud, and bias.

Ineffective Assistance of Counsel [ 22 ] The appellant says that she received the ineffective assistance of counsel from various lawyers during various labour and professional discipline proceedings from 2012 onward, as well as during the course of the appeal of the vexatious litigant order that was argued by Mr. Klaudt (former counsel).

She says that he failed to raise objections that she wanted him to make. [ 23 ] In this Court’s reasons for decision, we decided that there was no basis to support the appellant’s claim that a miscarriage of justice had occurred due to the ineffective assistance of counsel generally and, in particular, former counsel’s representation of her on the appeal on the material that was presented to us (see Hancock 2023 at paras 122-26 ).

We reiterate the observation in our reasons for decision that, on the admissible record before us, former counsel provided competent representation to the appellant during the course of the appeal until he was discharged. [ 24 ] In our view, this argument must fail as it is nothing more than an expression of disagreement with this Court’s decision. As was explained in Jhanji v The Law Society of Manitoba , 2023 MBCA 15 [ Jhanji 2023], “ [a] rehearing is not available to a party who merely ‘disagrees’ with the result or wishes to ‘reargue’ the appeal (citations omitted) . T he threshold is far higher” (at para 5).

Fraud [ 25 ] In her written submission, the appellant sets out multiple allegations of fraud and other dishonest conduct against the respondent and several lawyers. In addition to her general claim that the vexatious litigant order was obtained against her by reason of

fraud, she liberally tosses around accusations of threats, collusion, misfeasance, perjury, non-disclosure, misconduct and discrimination against a multitude of parties.

There is no admissible evidence before us to support anything the appellant claims. [ 26 ] The respondent describes the appellant’s written submission as laden with “substantial diatribe” and failing to identify any material errors in fact or law that cast doubt on this Court’s decision upholding the vexatious litigant order that was made against the appellant. [ 27 ] It is important to return to the record that we heard on the appeal that was based on proven facts—not the supposition posited by the appellant in her written submission.

In the decision that gave rise to Hancock 2023, the judge detailed in careful reasons why the appellant had crossed the line in her litigation against the respondent. We agreed with his exercise of discretion and provided detailed reasons why, based on the standard of review, the vexatious litigant order should not be interfered with (see Hancock 2023 at paras 77-121 ). [ 28 ] There is no merit to the appellant’s fraud submissions as reason for her appeal to be reheard.

Bias [ 29 ] The appellant raises more than a dozen claims of bias, attacking the respondent, several members of the legal community and members of the panel. She also makes a host of allegations of conflict of interest relating to members of this Court who did not sit on this appeal, members of the Court of King’s Bench and members of law firms not involved in this appeal. It is difficult to make sense of much of her submissions.

The best one can make of them, as the respondent puts it, is that the appellant is advancing a narrative of “a grand conspiracy amongst lawyers, professional regulatory bodies, government, and the judiciary to disenfranchise her and her fellow nurses.” [ 30 ] While none of the bias claims are supported by cogent evidence to warrant a rehearing of the appeal, it is appropriate to comment in more detail on those made against the panel members as we dismissed her appeal. [ 31 ] In the motion, the appellant repeats the bias claim relating to one member of the panel having a family member who has retained law firms for their affairs that had no role in this appeal.

This is reargument of a ground of appeal decided against the appellant previously and not a proper basis to grant a rehearing (see Jhanji 2023 at para 5 ). [ 32 ] The appellant also makes claims against panel members who have sat on her prior appeals or who have been involved in an association of the legal profession (who is not party to this case) in which members of law firms opposed to her in litigation are also members.

Such claims are frivolous on their face (see Bartel-Zobarich v Manitoba Association of Health Care Professionals (MAHCP- Bargaining Unit) et al , 2023 MBCA 41 at para 12 ; and Carbone v Burnett , 2019 ABQB 320 at para 33 ). [ 33 ] The appellant accuses one of the panel members of making what she calls “stigmatizing remarks” about her mental health during the hearing of the appeal on February 27, 2023. This is a new bias claim raised for the first time. In her written submission, the appellant says that this allegation was not raised earlier because her former counsel refused to do so.

Leaving aside the fact we have no admissible evidence from her former counsel or the appellant, who has provided nothing to the Court under oath to support this claim, we do not find her explanation as to delay to be credible due to the sequence of events. [ 34 ] The appellant made post-hearing submissions on her own behalf raising a claim of bias, which were addressed in our reasons for decision (see Hancock 2023 at paras 122-42 ). However, she did not raise the “stigmatizing remarks” bias claim with reasonable promptness.

We expressed our concern with the appellant’s litigation strategy of sitting on apparent instances of miscarriages of justice and remaining silent. We stated ( ibid at para 136): . . . [T]he record is entirely unsatisfactory. There is a complete absence of a proper record based on admissible evidence to support the claim. There is also no proper explanation from the appellant as to why the alleged bias of the judge was not raised at the first reasonable opportunity which would have been at the hearing of the appeal.

The lack of a timely objection may be informative as to the materiality of the concern (see R v Samaniego , 2022 SCC 9 at para 47 ). See also R v Van Wissen , 2018 MBCA 100 at para 13 [ Van Wissen ] . [ 35 ] Aside from this unreasonable delay, there is an inadequate evidentiary record here to support this new bias claim. We have no transcript of the hearing and the appellant appears to be mixing what was said in the reasons for decision and what was said at the hearing of the appeal six months earlier. [ 36 ] In any event, in our view, the appellant is unreasonably distorting the record.

Claims of a reasonable apprehension of bias require that any impugned comments of a judge be viewed in the context of the proceeding (see R v Ibrahim , 2019 ONCA 631 at para 85 ). [ 37 ] In his reasons for decision (see 2022 MBQB 26 ), the judge made findings describing the appellant as displaying signs of “paranoia” (at para 90), as well as a host of other mental health challenges. For example, the record before the judge was that, during the appellant’s professional discipline proceedings, she was diagnosed by Dr.

Stambrook with a generalized anxiety disorder, complicated bereavement, a Major Depressive Disorder with anxious distress, and an aggravation of trust and complex issues in the context of sleep disturbance, difficulty settling, and overinclusive and somewhat sticky ideation. [ 38 ] As our reasons for decision explained, the judge had before him extensive expert evidence as to the mental health challenges the appellant had experienced, as well as submissions from her former counsel relying on those mental health challenges as reason not to make a vexatious litigant order against her.

The statement in our reasons for decision (that the appellant says is stigmatizing), that the judge was of the view that the appellant has “ obvious mental health struggles ” ( Hancock 2023 at para 15 ), was well supported by the record and was not contentious in the lower court.

[39] Judges are not required to “sit in silence” while legal proceedings unfold (Donald JM Brown with the assistance ofDavid Fairlie, Civil Appeals (Toronto: Thomson Reuters, 2023) vol 2 (loose-leaf updated 2023, release 3), pt IV, ch 11 at

section 11:37). As was noted by Monnin JA in Van Wissen, “[a] Court of Appeal hearing is not a tea party” (at para 20). We endorse the followingfurther comments he made (ibid at para 16): Unlike trial courts, where judges typically do not descend into the arena, appellate court judges are expected to enter the fray andchallenge counsel and the validity of the arguments being advanced. It is appropriate for appellate court judges to play an active role inthe appeal hearing. Appellate courts have the benefit of considering all of the arguments pertaining to the grounds of appeal before theappeal hearing.

This provides appellate court judges with the opportunity to let counsel know the areas where there are concerns and togive counsel the opportunity to address those concerns. [40] An appellate court judge discussing with counsel a finding of a judge or tribunal and its reasonableness in a fair andreasonable manner, which is what occurred during the hearing of this appeal, is a common occurrence in appeals and is not the type ofinjudicious comment that can rise to a reasonable apprehension of bias. [41] Additional important context is that one of the issues in the appellant’s appeal of the vexatious litigant order madeagainst her was the argument of her former counsel that her mental health challenges should have been analyzed in the same way that isdone in criminal law in the sentencing process.

We disagreed. As was explained in our reasons for decision, a vexatious litigant order is“preventative” (Hancock 2023 at para 13)—not punitive. [42] We concluded that an individual’s mental health challenges do not entitle them to institute a vexatious proceeding andobligate the Court to tolerate abusive behaviour (ibid at para 99). The record on the appeal was consistent with the medical diagnosis ofthe appellant having a somewhat sticky ideation. The appellant made a litany of unsupported claims about the respondent and numerouslawyers representing opposing parties.

We decided, contrary to the position advanced by former counsel for the appellant, that it is notappropriate for this Court to allow a person with fragile mental health to abuse the legal system to advance vexatious claims.

We seenothing stigmatizing or discriminatory about that view and reiterate it. [43] We see no clear evidence of bias that would displace the strong presumption of judicial impartiality as to any of theclaims against the panel members, or otherwise, to warrant a rehearing of the appeal (see Yukon Francophone School Board, EducationArea #23 v Yukon (Attorney General), 2015 SCC 25 at paras 20-21, 25). Conclusion [44] The appellant has failed to meet the heavy burden of demonstrating that there are exceptional circumstances for herappeal to be reheard.

Given our view on the motion for a rehearing, we also decline to order the ancillary relief requested, but wouldpoint out we do not see our jurisdiction to order the ancillary relief requested in any event. [45] There is no jurisdiction for the appellant’s appeal to be reheard by only one judge, as she requests, when a quorum tolawfully hold court on an appeal requires a panel of at least three judges (see The Court of Appeal Act, CCSM c C240 at

section 14). [46] We also fail to see how we could entertain an application to appoint counsel paid for by the Attorney General on amatter not before our Court. If the appellant wishes to pursue that relief in relation to the KB Action, she should do so in the Court ofKing’s Bench.

Costs [47] Costs on a motion for a rehearing is dealt with by r 46.2(10), which provides: Rehearing … 46.2(10) Unless otherwise ordered by the court, costs awarded on a motion requesting a rehearing shall be taxed as for a motion before the court. [48] The respondent has asked for a departure from r 46.2(10) and seeks solicitor and client costs on the motion. [49] An award of solicitor and client costs is exceptional and normally requires “reprehensible, scandalous or outrageousconduct on the part of one of the parties” (Young v Young, (SCC), [1993] 4 SCR 3 at 134). [50] An unsuccessful allegation of fraud may, but not inexorably, lead to an award of solicitor and client costs (see Hamiltonv Open Window Bakery Ltd, 2004 SCC 9 at para 26). [51] Sullying professional integrity and trustworthiness during the course of litigation with allegations of contemptuousconduct having no foundation, in fact, may warrant the Court’s disapproval by an award of solicitor and client costs (see J-Sons Inc v NM Paterson & Sons Limited, 2003 MBCA 156 at para 26). [52] Generally, an award of solicitor and client costs is reserved for a party’s conduct during the course of litigation asopposed to pre-litigation conduct (see Judges of the Provincial Court (Man) v Manitoba et al, 2013 MBCA 74 at para 173). [53] Ultimately, an order of costs for an appeal must be moulded to do justice, taking into account the circumstances of theappeal and the proceedings giving rise to it (see Winnipeg (City) v Sheegl et al, 2023 MBCA 63 at paras 134-35).

[ 54 ] The respondent makes the following compelling submission: “A hallmark of vexatious litigants is the incredible expense they cause the responding parties to endure.

The Respondent has endured significant legal costs due to the Appellant’s conduct before this court and the courts below.” [ 55 ] In our view, this is one of those rare cases where it is appropriate to award solicitor and client costs in favour of the respondent on the motion to express disapproval with the appellant’s conduct of this litigation. [ 56 ] In our reasons for decision, we noted the “highly inappropriate conduct” ( Hancock 2023 at para 139 ) that the appellant engaged in during the course of the appeal, which included writing to a judge of the panel privately while the decision was under reserve, without the consent of the respondent, and attempting to manipulate the process by seeking to enlist the Chief Justice to assist her in causing a judge of the panel to recuse themselves. [ 57 ] The appellant’s written submission on the motion is what can only be described as a poisonous document.

It impugns the professional integrity and trustworthiness of dozens of individuals, many of whom have absolutely no role in this appeal. In particular, it makes baseless and repeated claims of fraud and other dishonesty against the respondent and its legal counsel.

It is noteworthy that the allegations of fraud were not made in the appellant’s written submissions on the appeal when she had counsel, but only on the motion for a rehearing once she chose to represent herself. [ 58 ] We have considered the fact that, to this point in the litigation, the respondent has been entirely successful; costs have been awarded on a tariff basis and unpaid.

The appellant is self-represented and has experienced mental health challenges, but none of that should be seen by her, the respondent or the public as a licence to bombard the courts with baseless and damaging allegations in an endless fashion. [ 59 ] When the totality of the circumstances are carefully weighed, we are satisfied that the appellant has engaged in reprehensible, scandalous or outrageous conduct during the course of the appeal process and that an award of solicitor and client costs is necessary to do justice in the circumstances.

Disposition [ 60 ] The motion is dismissed with solicitor and client costs in favour of the respondent. JA JA ACJ