Cummings v. Belfast Mini-Mills Ltd., 2011 NSCA 56

NOVA SCOTIA COURT OF APPEAL Citation: Cummings v. Belfast Mini-Mills Ltd. , 2011 NSCA 56 Date: 20110609 Docket: CA 341131 Registry: Halifax Between: Wanda Cummings and Gillian Leigh Appellants v. Belfast Mini-Mills and International Spinners Ltd. Respondents Judge: The Honourable Justice David P.S. Farrar Appeal Heard: May 24, 2011 Subject: Freedom of Information and Protection of Privacy Act , S.N.S. 1993, c. 5 ( FOIPOP Act ”) . Confidentiality of Documents Filed in Support of an Application for Disclosure.

Summary: The appellants appeal from a decision finding that documents filed in the Supreme Court in support of a judicial review application and four FOIPOP Act appeals were not subject to any blanket confidentiality order. They allege that the trial judge misinterpreted the FOIPOP Act and allege various breaches of their rights to privacy. Issues: Whether the Chambers judge erred in finding that there was no blanket confidentiality for documents filed in support of a FOIPOP Act appeal and dismissing the appellants’ motion for an injunction.

Result: Appeal dismissed. There is no blanket confidentiality for documents filed in support of a FOIPOP Act appeal to the Supreme Court nor was there any basis upon which the Chambers judge could grant the injunctive relief sought by the appellants. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 17 pages. NOVA SCOTIA COURT OF APPEAL Citation: Cummings v. Belfast Mini-Mills Ltd. , 2011 NSCA 56 Date: 20110609 Docket: CA 341131 Registry: Halifax Between: Wanda Cummings and Gillian Leigh Appellants v.

Belfast Mini-Mills and International Spinners Ltd. Respondents Judges: Fichaud, Farrar and Bryson, JJ.A. Appeal Heard: May 24, 2011, in Halifax, Nova Scotia

Held: Appeal dismissed per reasons for judgment of Farrar, J.A.; Fichaud and Bryson, JJ.A. concurring. Counsel: Appellants in person Robert K. Dickson, Q.C. for the respondents Reasons for judgment : BACKGROUND [ 1 ] The appellants are self-represented and are involved in protracted commercial litigation with the respondents relating to a Metro Fibre Spinning Mill, a machine used in the preparation and manufacture of animal fibre products.

During the conduct of that litigation, counsel for the respondents conducted a search at the Prothonotary’s office and discovered that the appellants were parties to five proceedings, four of which were appeals under the Freedom of Information and Protection of Privacy Act , S.N.S. 1993, c. 5. [ 2 ] In and around April and May 2010, representatives of Boyne Clarke, solicitors for the respondents, attended at the Prothonotary’s office to conduct a search of the proceedings in which the appellants were parties.

The following actions were identified by Boyne Clarke and copies were made of the contents of the files: 1) Hfx No. 326861 - Cummings and Leigh v. Minister of Community Services - a judicial review. 2) Hfx No. 326871 - Cummings and Leigh v. Department of Justice - a proceeding pursuant to the Freedom of Information and Protection of Privacy Act , S.N.S. 1993, c.5. 3) Hfx No. 326867 - Cummings and Leigh v. Attorney General of Nova Scotia and Capital District Health Authority - a proceeding pursuant to the Freedom of Information and Protection of Privacy Act . 4) Hfx No. 327449A - Cummings and Leigh v.

Royal Canadian Mounted Police - a proceeding pursuant to the Freedom of Information and Protection of Privacy Act . 5) Hfx No. 327460 - Cummings and Leigh v.

Department of Community Services - a proceeding pursuant to the Freedom of Information and Protection of Privacy Act . [ 3 ] The appellants, shortly after it occurred, became aware that the respondents’ counsel had accessed the files and copied the documents. [ 4 ] As a result, the appellants proceeded to file a Notice of Motion for an Injunction in SH 272748 (the action relating to the Metro Fiber Spinning Mill) seeking to restrain the respondents from, in any way, using the documents which they had obtained from the Prothonotary’s office.

For reasons that are not apparent, the motion did not proceed. [ 5 ] The appellants then filed an Appearance Day Notice, again seeking similar injunctive relief to that sought in the motion previously filed. The appellants realized that the Appearance Day Notice was inappropriate to obtain the relief sought and decided to proceed by way of a Notice of Application and commenced a new proceeding on July 22nd, 2010. In the application, the appellants sought the following relief: 1) That all of the documents obtained in bad faith by the defence be expunged from the litigation Case No. 272748 file as they are

separate litigations for which the applicants had claimed privilege through statutory and common law; 2) That defence counsel and his clients return all copies with a written guarantee that no copies exist; 3) That an injunction against the defence counsel and his clients be imposed, ordering non-disclosure of any of the contents of the documents, verbally or otherwise, as they are intended for corrective and other purposes; 4) That the defence counsel write an affidavit as to how he obtained the documents; 5) Costs. [ 6 ] As a result of a decision of the Honourable Justice Arthur Pickup, the application was amended on October 19, 2010, seeking the following relief: 1) That all of the documents obtained in bad faith by the defence be expunged from the litigation Case No. 272748 file as they are separate litigations for which the applicants had claimed privilege through statutory and common law; 2) That defence counsel and his clients return all copies of the files which were unlawfully obtained, including those not filed in an affidavit in Case No. 272748, with a written guarantee that no copies exist; 3) That an injunction against the defence counsel and his clients be imposed, ordering non-disclosure of any of the contents of the documents, verbally or otherwise, as they are intended for corrective and other purposes; 4) That the defence counsel, Mr.

Dickson, write an affidavit as to how he obtained the documents prior to the proposed 3 November 2010 injunction hearing date stating how, for what reason, and from whom the applicants’ FOIPOP documents were obtained, and why these, as well as sealed documents were filed in affidavit evidence in an unrelated matter; 5) That the defence counsel return and destroy any copies of phone bills which were provided to him in December 2007, with a written guarantee that all copies have been destroyed; 6) That the defence counsel provide any and all documentation provided to Boyne Clarke or their clients through individuals or agencies which pertain to privileged or confidential information about either of the plaintiffs in Case No. 272748; Ms.

Wanda Cummings or Ms. Gillian Leigh; and 7) Damages and costs. [ 7 ] In support of the Notice of Application, the appellants filed the affidavit of Wanda Cummings dated July 22nd, 2010. The affidavit is instructive for what it does not contain. In particular, the documents for which the appellants were seeking the injunction are not found or described anywhere in the record. The affidavits, and the briefs filed in support of the application and motion, rather than providing a basis for the claim of confidentiality, assumes confidentiality exists and seeks to enforce the confidentiality.

I will address this distinction later in more detail. [ 8 ] The matter came on for hearing before Supreme Court Justice C. Richard Coughlan on November 3rd and 9th, 2010. He rendered an oral decision on November 9, 2010 (now reported at 2010 NSSC 459 ) dismissing the application with costs of $1,000 payable, in any event of the cause, to the respondents.

[ 9 ] The appellants appeal alleging numerous errors on the part of the Chambers judge and, further seek to introduce fresh evidence on the appeal. [ 10 ] For the reasons I will develop I would dismiss both the application to introduce fresh evidence and the appeal. Issues [ 11 ] The appellants set out five issues in their factum. They are as follows: 1. Did the learned judge err in failing to acknowledge that documents filed by and in support of an appeal under

Section 41 Freedom of Information and Protection of Privacy Act , 1993, c. 5, s. 1 (" FOIPOP Act ") are not a matter of public record? 2. Did the learned judge err in acknowledging that sealed documents cannot be used in unrelated court proceeding, and by failing to order an injunction against the use of confidential and sealed documents in an unrelated proceeding? 3.

Did the learned judge err in failing to acknowledge that the copying and filing of the FOIPOP Act appeal and judicial review documents by the defendants in SH No. 272748 was unlawful, constituted an abuse of process and contempt of court, and was a violation of the appellant's privacy rights? 4. Did the learned judge exceed jurisdiction by waiving the appellant's right to privilege, and by failing to exercise the legislative provisions and protections as set out in the privacy legislation and common law? 5.

Did the learned judge, as a result of the forementioned, err in awarding costs to the defendants? [ 12 ] When considering the issues on this appeal, we cannot lose sight of the relief sought on the application filed on behalf of the applicants before the Chambers judge; they were seeking an injunction to have the documents accessed by Boyne Clarke returned to them or destroyed and that the defendants be enjoined from disclosing the documents or using them in any way. The grounds of appeal can be reduced to three issues which address all of the appellants’ alleged errors on the part of the Chambers judge.

They are: 1. Did the Chambers judge err in his

interpretation of the FOIPOP Act ; 2. Did the Chambers judge err in failing to grant the injunctive relief sought; and 3. Did the Chambers judge err in awarding costs to the respondents on the motion, in any event of the cause? [ 13 ] The other issue that arises on this appeal is whether the appellants’ application to introduce fresh evidence should be allowed. I will address the fresh evidence issue first after discussing the standard of review. Standard of Review [ 14 ] The law on the standard of review was exhaustively considered by Saunders, J.A. in McPhee v. Gwynne-Timothy , 2005 NSCA 80 . Those standards are:

1. For findings of fact and inferences drawn from facts, there must be a palpable and overriding error to warrant overturning a trialjudge. An error is said to be palpable if it is clear or obvious. An error is overriding if, in the context of the whole case, it is so serious asto be determinative when assessing the balance of probabilities with respect to that particular factual issue. A high degree of deference ispaid to a trial judge’s findings (McPhee, supra, ¶ 32). 2. On questions of law the standard of review is one of correctness, the trial judge must be right (McPhee, supra, ¶ 33). 3.

Findings of mixed law and fact are said to fall along a “spectrum of particularity”. They involve applying a legal standard to agiven set of facts and are to be reviewed according to the palpable and overriding error standard unless the alleged error of law can beisolated from the mixed question of law and fact. Where that occurs the isolated legal principle will attract a correctness standard(McPhee, supra, ¶ 33). [15] On the issue of the costs award, we will not interfere unless the Chambers judge erred in principle or the decision is so wrongas to amount to a manifest injustice (McPhee v.

Canadian Union of Public Employees, 2008 NSCA 104, ¶ 71). [16] The appellants assert, and the respondents agree, that the standard of review for the grounds of appeal is correctness. Whilethere are certain aspects of the appellants’ argument that will attract the correctness standard of review, such as whether the Chambersjudge erred in his

interpretation of the FOIPOP Act, his ultimate decision in refusing to grant the injunction is a question of mixed lawand fact without an extricable legal principle and is entitled to deference. However, for reasons that will become apparent, thedistinction makes little difference in this case. Analysis Application to Introduce Fresh Evidence [17] At the commencement of the appeal, the appellants sought to introduce fresh evidence in support of their appeal. The freshevidence consists of the affidavit of Wanda Cummings and contains correspondence with the court and the Prothonotary.

It also containstranscripts of pre-hearing conferences from their FOIPOP Act appeals and their commercial litigation against the respondents. [18] In Harris v. Nova Scotia Barristers’ Society, 2004 NSCA 143, Justice Hamilton, of this Court, addressed the four-part testfor admitting fresh evidence on appeal: 105 With respect to the first two affidavits, the test for the admission of fresh evidence on appeal was set out by the Supreme Court ofCanada in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759 at page 775: Parliament has given the Court of Appeal a broad discretion in s. 610(1)(d).

The overriding consideration must be in the words of theenactment "the interests of justice" and it would not serve the interests of justice to permit any witness by simply repudiating or changinghis trial evidence to reopen trials at will to the general detriment of the administration of justice. Applications of this nature have beenfrequent and courts of appeal in various provinces have pronounced upon them -- see for example Regina v. Stewart (1972), (BC CA), 8 C.C.C. (2d) 137 (B.C.C.A.); Regina v. Foster (1977), 1977 ALTASCAD 300 , 8 A.R. 1 (Alta. C.A.); Reginav. McDonald (ON CA), [1970] 3 C.C.C. 426 (Ont.

C.A.); Regina v. Demeter (1975), (ON CA), 25C.C.C. (2d) 417 (Ont. C.A.). From these and other cases, many of which are referred to in the above authorities, the following principleshave emerged:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ (SCC), [1964]S.C.R. 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [ 19 ] I would dismiss the application to introduce fresh evidence on three bases: 1. The evidence was available and could have been adduced, with due diligence, before the Chambers judge; 2. More importantly, the issue on the hearing before the Chambers judge was the

interpretation of the FOIPOP Act and whether the appellants should have been granted the injunctive relief which they sought. The evidence sought to be admitted on the fresh evidence application does not pertain to either of these two issues. It is not relevant to the

interpretation of the FOIPOP Act nor does it provide a basis upon which the injunctive relief sought by the appellants could be granted; and 3. The evidence in no way could be expected to have affected the result. As stated above, it was irrelevant to the issues that the Chambers judge had to decide and, therefore, could not have, in any way, affected the result. [ 20 ] For these reasons, the fresh evidence application must fail. 1. Did the Chambers judge err in his

interpretation of the FOIPOP Act? [ 21 ] The appellants argue the Chambers judge erred in his

interpretation of the FOIPOP Act and, in particular, he failed to recognize that documents filed by and in support of the appellants’ applications were confidential and not a matter of public record pursuant to the FOIPOP Act . In my view, the Chambers judge made no such error. [ 22 ] It is apparent from their submissions, that the appellants are of the view that the FOIPOP Act creates a blanket confidentiality for any document filed in court during a FOIPOP appeal.

In support of this argument they rely upon the provisions of the FOIPOP Act , Practice Memorandum No. 28 and representations made by court staff or judges involved in their various appeals. None of these provide support for the appellants’ position. I will address each of them individually. FOIPOP Act [ 23 ]

Section 42 of the FOIPOP Act is as follows: 42

(1) On an appeal, the Supreme Court may (

a) determine the matter de novo; and (

b) examine any record in camera in order to determine on the merits whether the information in the record may be withheld pursuant to this Act.

(2) Notwithstanding any other Act or any privilege that is available at law, the Supreme Court may, on an appeal, examine any record in the custody or under the control of a public body, and no information shall be withheld from the Supreme Court on any grounds.

(3) The Supreme Court shall take every reasonable precaution, including, where appropriate, receiving representations ex parte and conducting hearings in camera, to avoid disclosure by the Supreme Court or any person of (

a) any information or other material if the nature of the information or material could justify a refusal by a head of the public body to give access to a record or part of a record ; or (

b) any information as to whether a record exists if the head of the public body, in refusing to give access, does not indicate whether the record exists .

(4) The Supreme Court may disclose to the Minister or the Attorney General of Canada information that may relate to the commission of an offence pursuant to another enactment by an officer or employee of a public body.

(5) Where the head of the public body has refused to give access to a record or part of it, the Supreme Court, if it determines that the head of the public body is not authorized to refuse to give access to the record or part of it, shall (

a) order the head of the public body to give the applicant access to the record or part of it, subject to any conditions that the Supreme Court considers appropriate; or (

b) make any other order that the Supreme Court considers appropriate.

(6) Where the Supreme Court finds that a record falls within an exemption, the Supreme Court shall not order the head of the public body to give the applicant access to the record, regardless of whether the exemption requires or merely authorizes the head of the public body to refuse to give access to the record. 1993, c. 5, s. 42 . (Emphasis added) [ 24 ] The specific sections relied upon by the applicants are ss. 42(3)(

a) and (b). They assert that these provisions give a blanket confidentiality to any documentation filed in support of an appeal from the refusal of a request for access to information or an appeal where access has been granted. [ 25 ] Section 42(3) provides no such confidentiality. What is referred to in that

section is the information for which disclosure is sought, not the information filed in support of an appeal to the court. In other words, the information referred to in s. 42(3) is the information for which disclosure has been granted or for which the disclosure has been refused. It is with respect to that information that the court is to take every reasonable precaution to ensure that the information is not disclosed.

The reason for doing so is apparent: failure to maintain confidentiality of the records sought would defeat the rights of appeal under the FOIPOP Act and could result in information being disclosed which is protected from disclosure under the FOIPOP Act . Practice Memorandum No. 28 [ 26 ] Practice Memorandum No. 28 applies to appeals commenced before the Supreme Court under s. 41 of the FOIPOP Act . The procedure under that Memorandum, in

summary, is as follows: 1. The appellant completes the appropriate form and that form is filed with the Prothonotary;

2. The Prothonotary date stamps the form without setting a date for the appeal, and the appellant is then required to serve the form on the Minister of Justice; 3. The Prothonotary, also on the filing of the completed form, will pick a date, time and place for the pre-hearing conference only. This ensures that any party served with the form will be aware of the date and that it is only for a pre-hearing conference. The pre- hearing conference is required to be held within 20 days of the filing of the form; 4. The pre-hearing conference will be conducted “in camera” and need not be recorded. The Chambers judge is directed to consider a number of issues, including: (

c) if any portions of the appeal hearing will be considered confidential and what measures may be necessary to ensure such confidentiality; (

d) whether the names of any of the parties are to be confidential and, if so, what steps will be taken to ensure that confidentiality; (

e) the manner in which the record-keeper will present information of records to the court and the manner in which confidential information or records is to be identified with the court; (

g) which of the parties, if any, shall have access to the information or records; and (

m) any and all such matters which the judge conducted in the pre-hearing conference deemed were necessary for the proper conduct of that particular appeal. (the lettering follows the lettering in the Practice Memorandum, however, I have only referenced the provisions in the memorandum that could potentially deal with confidentiality). [ 27 ] The most significant portion of the Practice Memorandum is in ¶ 9. I will set it out in its entirety: 9. Any documents or records to be filed with the court following the pre-hearing conference are to be placed in a brown manila envelope and SEALED.

The following notation is to be placed by counsel on the envelope: “CONFIDENTIAL DOCUMENTS PRODUCED TO THE COURT ONLY PURSUANT TO THE FREEDOM OF INFORMATION AND PROTECTION OR PRIVACY APPEAL. THESE DOCUMENTS ARE FILED BY (name of the lawyer and the party they represent)”.

This brown manila envelope is to be kept separate from the court file and is to be held by the Prothonotary and given by the Prothonotary to the judge who will hear the appeal. (Emphasis added) [ 28 ] As is apparent from the plain wording of the Practice Memorandum, and the FOIPOP Act , the documents or records that are afforded confidentiality, are those documents and records being filed after the pre-hearing conference and which the court is to review for the purposes of determining whether the appeal has merit. [ 29 ] There is nothing in the Practice Memorandum which supports the appellants’ assertion that the forms and documents filed on the commencement of the appeal are subject to a blanket confidentiality order .

Representations of Court Staff and Judges [ 30 ] To the extent that the appellants rely upon representations made by court staff and/or judges in support of their argument, it

appears that they misunderstood what was being told to them about the confidentiality of documents. They rely upon correspondence with the Prothonotary, however, a review of the correspondence does not support the position put forward by the appellants. In particular, in an email message from the Prothonotary to Ms. Cummings dated April 8, 2010, the Prothonotary is explicit that there is no blanket confidentiality and that it would be necessary to make a motion pursuant to s. 85 of the Civil Procedure Rules seeking an order for confidentiality.

She says: I am prepared to hold the court files in my office pending you filing the documents required to bring the motions on the three files. HOWEVER, I am only prepared to hold the files until the end of the day Tuesday, April 13th. This means that at 4:30 on April 13 if the motions have not been filed, the court files will be returned to the court filing vault and will be accessible to the public. [ 31 ] Ms.

Cummings responded to the Prothonotary indicating that the documents would be filed before April 13th and, although documents were filed for a Rule 85 order, the appellants never proceeded with the motion. [ 32 ] The appellants now say that they did not proceed with the motion because they were of the view that it was not necessary because of the comments of Justice Robertson at the pre-hearing conference which was held on May 10th, 2010. They say Justice Robertson stated that a confidentiality order was not necessary for a FOIPOP Act appeal, as the documents were confidential and covered by privacy legislation.

However, the court’s running file notes contained in the affidavit of Ms. Cummings, filed in support of the application, do not support the appellants’

interpretation of what was told to them by Justice Robertson. The notes provide: Justice Robertson pointed out that the record sent to the Court for review is sealed, therefore, the file need not be . Indeed, the application made for a motion of confidentiality and non-publication orders (to include all files the appellants currently have before the courts) is premature and not properly made pursuant to the rules.

A blanket request for sealing files was rejected by the Court. (Emphasis added) [ 33 ] The court notes show that the appellants were told by Justice Robertson exactly what I have set out above, that is, records sent to the court for review for the purposes of the appeal will be confidential. The appellants’ request for a blanket confidentiality order was dismissed by Justice Robertson. [ 34 ] It is clear from a review of the record and the oral and written submissions of the appellants that they misunderstand what documents are subject to confidentiality under the FOIPOP Act .

However, that misunderstanding did not come about as a result of anything which was told to them by court staff or the court itself, but rather, as a result of their own misunderstanding of the provisions of the FOIPOP Act , the Practice Memorandum and what was being told to them. [ 35 ] In conclusion on this issue, there is no basis to conclude that the Chambers judge erred in concluding that documents filed in support of a FOIPOP Act appeal are not subject to confidentiality. 2.

Did the Chambers judge err in failing to grant the injunctive relief sought? [ 36 ] The Chambers judge’s decision on this point is relatively short: [5] Not having particulars of the specific documents for which the injunction is sought, I am not able to determine if some type of order to prevent the use of the documents is appropriate, and for that reason the motion must fail. [ 37 ] With respect, the Chambers judge made the only decision he could have made on the evidence submitted and the submissions before him.

He was being asked by the appellants to decide that certain documents were confidential without the benefit of viewing the documents to see if the appellants’ legal arguments had merit. He was not provided with any of the documentation that was alleged to be confidential and for which the injunction was sought. As stated previously, the application proceeded as if all of the documentation were confidential and the injunctive relief was being sought to enforce that confidentiality.

[38] This can be seen from an excerpt from the appellants’ factum where they argue: [67] In Justice Coughlan's 9 November oral decision, he cited the reason for the failure of the injunction application: [5] Not having particulars of the specific documents for which the injunction is sought, I am not able to determine if some type of orderto prevent the use of the documents is appropriate, and for that reason the motion must fail. [68] Again, it was not denied by the defendants that they had copied the documents.

While the appellants asserted that they wereirrelevant in any event, the issue which Justice Coughlan was seized with was whether the confidential documents were inappropriatelyseized and whether injunctive remedy should issue.

His Lordship went on in para. 6 to state that: [6] It appears, however, that any material which was copied from the files was not material for which a FOIPOP order was sought, butrather material filed in support of the application. [69] The appellants written submissions outlined that, in addition to being documents which were filed in support, many of thedocuments were obtained through FOIPOP and needed to be corrected. Again, however, this was not the issue to be decided. Asoutlined above, submissions and documents filed in support of a review with the Privacy Office are kept confidential.

Section 42(3) ofthe Act mandates the Court to do the same. [39] Unfortunately, by assuming the documents were confidential, the appellants failed to appreciate the burden on them to showthe basis for their claim for confidentiality. [40] The appellants allege errors by the Chambers judge in failing to rule that the documents were copied unlawfully, the copyingwas an abuse of process, was in contempt of court and a violation of privacy rights in legislation or common law or, alternatively, abreach of their Charter rights.

There was nothing put before the Chambers judge by the appellants to establish that any “privacy” rightconcerning the documents or information complained of ever existed or that the documents were copied “unlawfully” or that there wasan abuse of process or contempt of court. [41] As I have found above, there is no blanket confidentiality for documents filed in support of a FOIPOP Act appeal. Theconfidentiality applies to the documents sought to be disclosed. It was incumbent upon the appellants to bring forward evidence uponwhich the Chambers judge could determine whether the injunctive relief was appropriate.

Their failure to do so was fatal to theapplication. [42] For these reasons, I would dismiss the appellants’ appeal from the Chambers judge’s failure to grant the injunctive relief. 3. Did the learned Chambers judge err in awarding costs to the respondents on the motion, in any event of the cause? [43] The respondent was the successful litigant on the motion. Generally, costs will be awarded to the successful party. Why this isso was addressed by Saunders, J. (as he then was) in Landymore v. Hardy (1992), (NS SC), 112 N.S.R. (2d) 410: Costs are intended to reward success.

Their deprivation will also penalize the unsuccessful litigant. One recognizes the link between therising cost of litigation and the adequacy of recoverable expenses. Parties who sue one another do so at their peril. Failure carries a cost.There are good reasons for this approach. Doubtful actions may be postponed for a sober second thought. Frivolous actions should beabandoned. Settlement is encouraged. ...

[ 44 ] As set out under the standard of review, we will not interfere with the Chambers judge’s discretion in awarding costs unless he erred in principle or the decision is so wrong as to amount to a manifest injustice. The Chambers judge granted costs to the successful party and, in doing so, he properly exercised his discretion and I would dismiss this ground of appeal. Costs of this Appeal [ 45 ] Both parties seek costs of the appeal if they are successful. [ 46 ] In these circumstances, I would decline to award costs to either party.

The appellants are self-represented, and it appears, from my review of the record that this appeal results from their misunderstanding of the effect of the provisions of the FOIPOP Act and the directions conferred by the Practice Memorandum and others. Conclusion [ 47 ] For the reasons set out herein, the appeal is dismissed, without costs to either party. Farrar, J.A. Concurred in: Fichaud, J.A. Bryson, J.A.