Mercier v. Nova Scotia (Attorney General), 2012 NSCA 25

NOVA SCOTIA COURT OF APPEAL Citation: Mercier v. Nova Scotia (Attorney General) , 2012 NSCA 25 Date: 20120306 Docket: CA 362099 Registry: Halifax Between: Roger Edouard Mercier Appellant/Applicant v. Attorney General of Nova Scotia and Arthur Theuerkauf Respondents Judge: The Honourable Justice Joel Fichaud Appeal Heard: March 1, 2012, in Halifax, Nova Scotia, in Chambers Held: Motion dismissed for failure to give notice Counsel: Appellant/Applicant in person Reasons for judgment : [ 1 ] Mr. Mercier was charged with two counts of violating s. 811 of the Criminal Code .

On October 27, 2010, the charges were brought before a judge of the Provincial Court. The Crown offered no evidence and the judge dismissed the charges. Mr. Mercier then sued the Attorney General of Nova Scotia and the Crown ’ s counsel, Mr. Theuerkauf, for damages. The defendants applied under Rule 13.03 for

summary judgment on the pleadings to dismiss Mr. Mercier ’ s action. On December 11, 2011, Justice Coughlan of the Supreme Court of Nova Scotia granted that motion. The transcript of the judge ’ s oral reasons says: There is not [ sic ] basis in law for a claim against Mr. Theuerkauf but when he determined convictions were unlikely, made arrangements to have the charges dismissed at an early date. The claim against him is totally without merit. Likewise, there is no claim against the Attorney General of Nova Scotia. The motion is granted.

[ 2 ] On November 14, 2011, Mr. Mercier appealed Justice Coughlan ’ s ruling to the Court of Appeal. On February 16, 2012, Justice Oland in chambers scheduled the appeal hearing for September 17, 2012. Mr. Mercier said that he intended to move to add fresh evidence to the record. [ 3 ] On February 27, 2012, Mr. Mercier filed an ex parte motion in chambers, requesting orders that:

(1) Nova Scotia ’ s Freedom of Information and Protection of Privacy Review Office turn over documents from the Public Prosecution Service; (2) the Public Prosecution Service turn over documents; (3) the Police Complaints Commission and Police Complaints Commissioner, Ms. Nadine Cooper Mont, turn over documents, including documents from the Minister of Justice; (4) the Halifax Regional Police turn over documents; and (5) the documents that are turned over be sealed. Mr.

Mercier gave no notice of this motion to the respondents, or to the parties who would be ordered to turn over the information. [ 4 ] In support of the motion, Mr. Mercier filed his affidavit sworn on February 27, 2012. Mr. Mercier appeared in chambers on March 1, and made submissions in support of his motion. I asked Mr. Mercier to address why the motion could not proceed after notice to the respondents and affected parties. [ 5 ] Mr.

Mercier ’ s affidavit says that, in the elevator after the conclusion of the chambers hearing on February 16, 2012, the respondents ’ counsel said: “ It ’ s Okay, there is lots of time to forget before the appeal in September. ” Primarily from this source, Mr. Mercier asks me to infer that (1) an order is needed to preserve the documentary evidence that is the subject of this motion and (2) that order must be given ex parte . [ 6 ] I disagree that there is any basis for an ex parte motion.

I am not satisfied that there is any risk to the survival of the documents in the possession of the Freedom of Information and Protection of Privacy Review Office, the Public Prosecution Service, the Police Complaints Commission or its Commissioner, the Minister of Justice or the Halifax Regional Police. [ 7 ] Motions are to be made inter partes , with notice to affected parties, unless there is a compelling need, established by evidence, for an ex parte order.

I find as a fact that no such need has been established on this motion. [ 8 ] I dismiss the motion because of the failure to give notice to the respondents and the other affected parties. This is without prejudice to Mr. Mercier ’ s ability to re-commence the motion inter partes , after giving appropriate notice. [ 9 ] If the appropriate notices are given, there may still be an issue whether, on an appeal from a

summary judgment on the pleadings, a chambers judge of the Court of Appeal may effectively order discovery of documentary evidence. The issue surfaces because Rule 13.03(3) says: “ A motion for

summary judgment on the pleadings must be determined only on the pleadings, and no affidavit may be filed in support of or opposition to the motion ” . I make no comment on how that issue may be resolved. The point, if it arises, is for consideration by the judge who would hear the motion after Mr. Mercier gives the appropriate notice to the respondents and affected parties. [ 10 ] For those reasons, I dismiss the ex parte motion without costs. Fichaud, J.A.