Dixon v. Nova Scotia (Public Safety), 2011 NSCA 75

NOVA SCOTIA COURT OF APPEAL Citation: Dixon v. Nova Scotia (Public Safety), 2011 NSCA 75 Date: 20110831 Docket: CA 343192 Registry: Halifax Between: Delilah Delores Dixon and Peter Sheldon MacKinnon Applicants v. The Director of Public Safety Respondent Judge: The Honourable Justice Peter M. S. Bryson Motion Heard: August 4, 2011, in Chambers Held: Motion for leave to appeal is granted Counsel: Tony W. Mozvik, for the appellants Catherine J. Lunn, for the respondent Decision : [ 1 ] By order dated January 18, 2011, Justice Patrick J.

Murray ordered the appellants and their children to vacate their residential premises at Aspy Bay, Nova Scotia, pursuant to the Safer Communities and Neighbourhoods Act , S.N.S. 2006, c. 6 ( “ the Act ” ), on the grounds that the property was being habitually used for the possession, use, consumption and sale of crack cocaine, and was adversely affecting the safety and security of the community.

The order was to take effect for a period of 70 days commencing February 4th, but was partially stayed by an order of this Court pending appeal. [ 2 ] The usual practice of the Court is to hear applications for leave at the same time as the appeal itself. Although the appeal was set down, there was some confusion about whether or not the appellants were required to obtain leave to appeal from a single judge

of this Court, as opposed to the panel of three judges who would hear the appeal.

Section 21 of the Act says: 21

(1) An appeal of an order made by the Court may be taken only on a question of law and by leave of a judge of the Nova Scotia Court of Appeal.

(2) An application for leave to appeal must be made within fourteen days after the day the order is made or within such further time as a judge may allow.

(3) The decision of a judge on an application for leave to appeal is final and not subject to appeal.

(4) An order under

Section 13 is final and not subject to appeal. That application was heard by me on August 4, 2011. For the reasons that follow, I would grant leave on all issues raised by the appellants in their Notice of Appeal. [ 3 ] The Director raises the following issues on the application for leave: 1. Do the appellants require an extension of time in which to bring a leave application, pursuant to s. 21 of the Act ? 2.

Assuming compliance with the time provisions of s. 21 of the Act , should leave be granted to the appellants in this case? [ 4 ] Before addressing the Director ’ s substantive arguments, it would be helpful to discuss the leave process under the new Rules. [ 5 ] Under the 1972 Nova Scotia Civil Procedure Rules , leaves to appeal were generally heard by the panel of three judges who would be hearing the appeal proper. One exception to the former process involved appeals under the Workers ’ Compensation Act which were heard by a full panel ( Hogeterp v. Huntley , 2007 NSCA 75 , at paras. 19-20 ).

In contrast, new Civil Procedure Rule 90.12(1) says: 90.12

(1) An application for leave to appeal must be made to a judge of the Court of Appeal, unless legislation requires the application to be made to the Court of Appeal. However, Rule 90.12(2) allows a single judge to refer a motion for leave to a full panel. [ 6 ] Notwithstanding the language of new Rule 90.12, the Court expressed the view in A.B. v. Bragg Communications Inc. , 2011 NSCA 26 at paras. 20-21 , that, as a general proposition, a full panel of the Court of Appeal could do what a single judge could do and so could hear a leave to appeal application.

Consistent with prior practice, the Court heard both the leave application and the appeal proper in Bragg . Arguably, s. 21 of the Act is one of those statutory exceptions where a single judge must hear the leave application. Section 21(1) indicates that an appeal: ...may be taken only on a question of law and by leave of a judge of the Nova Scotia Court of Appeal. If the qualifier “ only ” applies to a “ question of law ” and not to “ leave of a judge ” , then arguably a full panel could do what a single judge could do on the same basis described in Bragg .

On the other hand, s-ss. 2 and 3 of s. 21, allow for an extension of time “ ...as a judge may allow ” , and s-s. 3 states that “ the decision of a judge on an application for leave is final and not subject to appeal ” . These subsections appear to contemplate that the leave application is to be heard by a single judge and not by a panel. However, as I clearly

have jurisdiction to make the decision, it is not necessary for me to comment on whether a panel also has that jurisdiction. ISSUE 1 - Timeliness of the Leave Application [7] The Director argues that the word “made” in s-s. 2 of s. 21 means that the leave application must be heard within 14 days. The Director acknowledges that the Notice of Appeal that was filed on January 28, 2011 includes a notice to apply for leave. So if theword “made” means filed, the leave application is timely. [8] The Director acknowledges the “modern approach” to statutory

interpretation described by the Supreme Court of Canada in anumber of cases and adopted by this Court in Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44: ...the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. [9] The issue of whether or not a notice of appeal is filed late is an issue of statutory

interpretation (Curves for Women NewGlasgow Ltd. v. Nova Scotia (Minister of Finance), 2007 NSCA 105, para. 21; Central Halifax Community Association v. Halifax(Regional Municipality), 2007 NSCA 39, para. 17). [10] In this case, the Director argues that the grammatical sense of the words “must be made” is not of much use and goes on tocontrast this language with language elsewhere in the Act, citing ss. 52, 55 and

Section 52 describes appeals to a judge of theSupreme Court with respect to orders relating to “fortified buildings”. The language in the

section talks about a notice of appeal havingbeen “served”.

Section 55 addresses stays of orders on appeal after a notice of appeal has been “filed”.

Section 61 deals with appealsfrom certificates with respect to costs and expenses. None of these sections involve applications for leave, or appeals to the Court ofAppeal and they fall under a different part of the Act relating to different breaches of the Act.

A comparison of the language used inthese sections with that used in s. 21 is unhelpful because these sections refer to a different court, different offences or issues anddifferent processes. [11] The Director also argues that the remedial purpose of the statute and the schemes established in it contain a theme throughoutof expediency and short turnaround times. That may be. But it does not assist when interpreting the word “made” here, because thegranting of leave in a 14 day window would not appreciably affect the appeal time line, at least where leave is granted.

In other words, adecision on the merits where leave was granted would likely not be rendered more expeditiously than an appeal in the ordinary course. [12] This Court dealt with the question of when an appeal was made in Cape Breton Development Corp. v. Nova Scotia (WorkersCompensation Appeal Board) (1993), 1993 NSCA 144 , 124 N.S.R. (2d) 43 (Devco). After reviewing previous case law,Justice Hallett explained at paras. 29-30: 29

Section 182 of the Act now deals with appeals to this court. The wording of the

section is significantly different that theprovisions of s. 140(1) in effect at the time the decision in Re Chafe was rendered.

Section 182 provides that leave to appeal “must bemade to the said judge within thirty (30) days after the rendering of the decision”. The authorities generally agree that when wordssimilar to those used in the present s. 182 are employed by the legislature an appeal is made when the documents are filed. The SupremeCourt Practice, 1988 states: “An application is treated as ‛made’ when the relevant document (notice of ex parte application, if it is ex parte, or summons, if it is interpartes) is lodged with the Civil Appeals Office.

It is not necessary for the application to be heard before the expiration of the time limit.” 30 In my opinion as a result of the change in the wording of the relevant

section an appeal to this court from a decision of the AppealBoard is made when the documents instituting the application are filed with the court. [Emphasis added]

[13] There are good policy reasons for favouring an

interpretation that an application is made when the notice for leave is filed. There can be different appeal periods in different areas of the law, but absent explicit legislative direction (ie. the Children and FamilyServices Act), the actual hearing dates for those matters are not constrained: they are all set down consistent with the general practice ofthe court.

Interpreting “made” as the filing of the notice provides consistency of practice and more flexibility with respect to the hearingon the merits. [14] Regarding the argument of an expedited process for leave applications under the Act, an analogy can be drawn to interlocutoryappeals. Interlocutory appeals are expedited by the Rules because they must be filed within 10 clear days. But a hearing on the merits isset down in the usual manner.

Treating “made” as “filed” in this case would be consistent with the time line for filing an interlocutoryappeal. [15] In the result, the word “made” in s. 2 of the Act means filed. [16] Alternatively, in the circumstances of this case, I would grant an extension to pursue a leave application under s. 21(2) for threereasons: first, at least one of the grounds of appeal is clearly a question of law – the Director concedes as much – and this Act is newand could benefit from judicial consideration by this Court; second, there is every indication of a vigorous pursuit of the appeal withinappropriate time lines by the appellants; third, the question of whether the leave application must be heard by a single judge or a panelwas a matter of some uncertainty in light of the general practice of the Court and the novelty of the Act.

ISSUE 2 - Should Leave be Granted? [17] The Director says that the Act only allows appeals on questions of law and that not all the issues raised in the notice of appealare issues of law. The appellants’ notice of appeal describes the alleged errors of the Chambers judge as follows: (

a) Failing to properly interpret the meaning of the term “habitually used” as employed in s. 7(1)(

a) of the Act; (

b) Failing to properly interpret the meaning of the term “reasonable inference” as employed in s. 7(1)(

a) of the Act; (

c) Failing to properly interpret ss. 7(1)(

a) and (

b) of the Act in regard to the need for a community safety order. [18] The Director concedes the first issue is a question of law. I agree. Interpreting statutory language is a question of law: R. v.Mahoney, (SCC), [1982] 1 S.C.R. 834. [19] With respect to the second ground of appeal, the Director says the appellants complain that the Chambers judge erred byrelying on inadequate evidence and bare assertions. This argument illustrates one of the difficulties for the Chambers judge on a leaveapplication when, traditionally, the leave judge would not have the arguments of the parties in facta before him or her.

It may be that theDirector is correct that, ultimately, a full panel of this Court would reject an argument under the second ground of appeal as not one ofpure law. But the

interpretation of a statutory term – in this case “reasonable inference” – is, at least as a first step, a question of law. And the application of a legal standard to a set of facts is a question of law (R. v. Shepherd, 2009 SCC 35, at para. 20). Moreover, ifthere is no evidence to support a factual finding, that is an error of law (R. v. Caouette, (SCC), [1973] S.C.R. 859), as ismisapprehending important evidence (R. v. R.E.W., 2011 NSCA 18, at 29). [20] The third ground of appeal is less clear.

It does refer to failing to properly interpret sections of the Act “in regard to the needfor a community safety order”. The Director submits that this implies a lack of evidentiary foundation. This ground of appeal suggestsa two-stage analysis:

interpretation of the sections in question and an application of those sections to the evidence before the Court. Thismay be a mixed question of fact and law which the Act prohibits the Court from entertaining on appeal. However, it may also be thatthere is an extricable question of law involved in this ground of appeal. In my view, it is inappropriate for me to determine that issue. Atleast I do not consider that I should preclude the appellants from arguing this ground of appeal based on the attenuated process of thismotion.

Simply because a full panel may lack jurisdiction to hear a leave application would not limit the panel’s jurisdiction at theappeal proper to dismiss a ground of appeal because the panel determined that it was not ultimately a question of law.

[ 21 ] Accordingly, leave to appeal is granted on all grounds of appeal raised in the appellants ’ notice of appeal. [ 22 ] Costs of the leave application will be costs in the cause. Bryson, J.A.