Raymond v. Brauer, 2012 NSCA 30

NOVA SCOTIA COURT OF APPEAL Citation: Raymond v. Brauer , 2012 NSCA 30 Date: 20120314 Docket: CA 375964 Registry: Halifax Between: Paulette Raymond (#2) Appellant(Applicant) v. Connie Brauer Respondent Judge: The Honourable Justice Joel E. Fichaud Motion Heard: March 8, 2012, in Halifax, Nova Scotia, in Chambers Held: Motion for interim injunction dismissed with costs in the cause. Counsel: Appellant (Applicant) in person Respondent in person Reasons for judgment : [ 1 ] Ms.

Raymond seeks an injunction to restrict the publication and dissemination of information respecting her divorce proceedings and the proceedings associated with this appeal. Background [ 2 ] Ms. Raymond and her former husband Victor Harris have endured an acrimonious and litigious divorce. Those events are recounted in earlier decisions of the Supreme Court of Nova Scotia ( 2009 NSSC 272 ) and this Court ( 2010 NSCA 94 ).

[ 3 ] On March 23, 2011, Justice Warner of the Supreme Court issued an order that, without prior leave of the Court, Mr. Harris be enjoined from starting or continuing any litigation against Ms. Raymond respecting the marriage or divorce. [ 4 ] In autumn of 2011, Ms. Raymond filed a motion in the Supreme Court of Nova Scotia against Ms. Brauer under s. 45B of the Judicature Act , R.S.N.S. 1989, c. 240, as amended by S.N.S. 2009, c. 17, s. 1 .

Section 45B permits the Court to apply a vexatious litigant order to a spokesperson for the enjoined party. Ms. Raymond submitted that Ms. Brauer has been Mr. Harris ’ spokesperson, and the vexatious litigant order should apply also to Ms. Brauer. [ 5 ] Justice Warner heard the motion on December 12, 2011. According to the transcript, at that hearing both Ms. Raymond and Ms. Brauer appeared without counsel. By a decision that day, the judge dismissed Ms. Raymond ’ s motion. Justice Warner ’ s oral reasons say: In my view, to entertain Ms.

Raymond’s motion for a remedy under 45(b) [ sic ] of the Judicature Act or as a separate stand-alone application, this Court would have to find that Victor Harris or Connie Brauer, as his agent, spokesperson, or person otherwise associated with him, either are commencing or have commenced proceedings in a court or some evidence that they are threatening or intending to commence proceedings in a court in relation to her or the children of their marriage. ... As of October 7th, there is . . . of 2011, the date of the filing of the motion by Ms. Raymond, there is no outstanding divorce proceedings.

There are no threats of outstanding divorce proceedings. I read carefully the materials filed by Ms. Raymond, the voluminous materials, to determine if there was any document in those materials that would demonstrate or could demonstrate to the Court that Victor Harris and, more particularly, Connie Brauer, as his spokesperson, agent, or a person associated with him, was intending to commence any new proceedings in contravention of the restraining order that this Court issued against Victor Harris directly or indirectly by himself or by anyone on his behalf.

I could find nothing. ... ... the motion and application for the Court is in respect of

Section 45(b) [ sic ] of the Judicature Act and in respect of contemplated, commenced, or to-be- commenced legal proceedings. The documents that have been filed with this Court are not a proper pleadings [ sic ] and are not a pleadings [ sic ] of a defamation action, of a tort of harassment, of a tort of bullying or the possible new cause of action of cyberbullying, ... But nothing in the materials that have been filed with this Court would constitute or could be construed as constituting the commencement of a proceeding of some kind by Ms.

Raymond for anything other than what it says on the notice of motion filed on October 7th, which is a request that Ms. Brauer be specifically designated as a spokesperson for, an agent of, or another person specified by the Court who, in the opinion of the Court, is associated with the person against whom the order is made. ... And in each of those notices of contest, the respondent, Ms.

Brauer, denies, among other things, the one that was important to me, which I can’t find now that I’m looking at it, because I didn’t mark it, was that “there are no future proceedings planned by me.” The 45(b) [ sic ] remedy deals with proceedings and the commencement of proceedings. It does not deal with other torts that do exist in law, that might cover much of the conduct that Ms. Brauer, who is Mr. Harris’ partner, has done. I am not going to adjourn the proceedings. What I find is that there is no materials [ sic ] filed by Ms.

Raymond that is before the Court as of the date of the filing of her motion on October 7th, 2011, that would give this Court jurisdiction to reconsider the order it made on March 23rd, 2011, which encompasses conduct by Mr. Harris or anyone associated with him directly or indirectly from commencing any proceedings in a court. [ 6 ] Ms. Raymond appealed Justice Warner ’ s decision of December 12, 2011 to the Court of Appeal. Her Notice of Appeal contends that the judge misinterpreted s. 45B and the associated provisions of the Judicature Act .

[ 7 ] On February 17, 2012, Ms. Raymond filed an ex parte motion to the chambers judge of the Court of Appeal seeking an injunction against Ms. Brauer. On February 23, 2012, Ms. Raymond appeared in chambers for her motion. Ms. Brauer did not attend in the absence of notice. My decision of February 24, 2012 ( 2012 NSCA 22 ) declined to hear the motion without inter partes notice to Ms. Brauer . [ 8 ] On March 1, 2012, Ms. Raymond then filed the current motion and served Ms. Brauer with the Notice of Motion and Ms. Raymond ’ s supporting affidavit. Ms. Brauer filed a response that contests Ms.

Raymond ’ s allegations and claim. On March 8, 2012, Ms. Raymond and Ms. Brauer appeared in chambers, each speaking for herself without legal representation. Issue [ 9 ] Ms. Raymond ’ s Notice of Motion of March 1, 2012 seeks the following relief: The Appellant moves for: an interim injunction to preserve the status quo by maintaining confidentiality with a publication ban, notwithstanding decisions released on-line by the Courts of Nova Scotia, until shortly thereafter, when the court reconsiders motions for Confidentiality, Rule 85, et al.

The Appellant moves for: an Interim Order , complying with an interim injunction to preserve the status quo , on matters and related proceedings, concerning Victor Garnet Harris v Paulette Louise Harris and Paulette Raymond v Connie Brauer. [ 2012 NSCA 22] [emphasis in the original document] [ 10 ] At the chambers hearing on March 8, I asked Ms. Raymond to explain her requested remedy. Ms. Raymond said that, since 2008, there has been no publication in the media of the details of her matrimonial litigation . That, Ms. Raymond submits, is the status quo . Ms.

Raymond wishes to maintain that status quo by banning any dissemination in the media or over the internet of anything related to her matrimonial litigation or to her current appeal against Ms. Brauer. Ms. Raymond said that she wishes an order that would bind the media, the internet providers and Ms. Brauer. Her requested order would include a ban on the publication of judicial decisions, such as this one. [ 11 ] The issue is whether I should grant such an order. Analysis [ 12 ] In my respectful view, I should not. [ 13 ] Ms. Raymond appeals the Supreme Court ’ s decision of December 12, 2011.

In that proceeding under appeal Ms. Raymond sought an amendment to the existing vexatious litigant order, by adding Ms. Brauer, further to s. 45B of the Judicature Act .

Section 45B(1) permits a court to make an order restraining a person from “ starting a further proceeding ” or “ continuing to conduct a proceeding ” .

Section 45B(2) permits the court to “ make the order apply to a spokesperson or agent ” of the restrained party. The issue in the decision that is under appeal was whether the existing vexatious litigant order should extend to restrain Ms. Brauer from starting or continuing a proceeding. [ 14 ] The issue in the Court of Appeal will be whether the judge made an appealable error by ruling that the vexatious litigant order should not be amended under s. 45B to restrain Ms. Brauer from starting or continuing a proceeding.

[ 15 ] Ms. Raymond and Ms. Brauer both acknowledge that the matrimonial litigation has ended, and there currently is no proceeding against Ms. Raymond. Ms. Brauer says she has no intent to start one, and Ms. Raymond is unaware of any new proceeding against her in the offing. [ 16 ] In the proceeding under appeal, there was no claim before the Supreme Court judge whether Ms. Brauer committed a tort, such as defamation, intimidation, or invasion of privacy. So no such issue can be injected into the appeal.

The Court of Appeal is not a tribunal of original jurisdiction to adjudicate a fresh cause of action that was not before the judge under appeal. A chambers judge of the Court of Appeal has no more original jurisdiction than does the Court of Appeal. As a chambers judge, my jurisdiction is limited to interlocutory matters that connect to the issues that are under appeal. I cannot issue a remedy for an alleged tort by Ms. Brauer that was not before the Supreme Court and is not appealed to the Court of Appeal. Yet that is effectively what Ms. Raymond ’ s motion seeks against Ms.

Brauer. [ 17 ] The usual interim motion sought of a chambers judge is a stay of execution under Rule 90.41. Ms. Raymond does not seek a stay. Justice Warner dismissed her application to alter the vexatious litigant order. So there is no existing order, that is under appeal, and that must be “ stayed ” to maintain the status quo . Ms. Raymond defines the “ status quo ” to mean the fact that, since 2008, the media have not discussed her matrimonial litigation. She wishes a court order to maintain that silence.

But such an order would not be a stay, under Rule 90.41, of Justice Warner ’ s decision of December 12, 2011 that is under appeal. [ 18 ] If the Court of Appeal allows the appeal and adds Ms. Brauer to the vexatious litigant order, according to s. 45B Ms. Brauer will be restrained from “ starting ” or “ continuing to conduct ” a “ proceeding ” . Nothing in s. 45B prescribes an injunction against dissemination of information to the media or use of the internet. The remedy that Ms. Raymond seeks in this motion against Ms.

Brauer is outside the issues before the Court of Appeal, and outside my power as a motions judge of this Court. [ 19 ] I will turn to Ms. Raymond ’ s requested order against the media and internet providers. [ 20 ] Some proceedings carry a statutory publication ban. Section 94(1) of the Children and Family Services Act , S.N.S. 1990, c. 5, for instance, says “ [n]o person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing ” under that Act . There is no statutory publication ban involved with Ms.

Raymond ’ s appeal. [ 21 ] Rule 90.37(15) permits a motions judge of the Court of Appeal to issue a publication ban, order the sealing of a file or use of pseudonyms, or direct that a hearing be in camera . But a motion for a confidentiality order binding the media is considered after notice to the media, under the notification protocol that is outlined on the Courts of Nova Scotia website. The media are given the opportunity to contest the motion by counsel: e.g. A.B. v . Bragg Communications Inc. , 2010 NSCA 57 (chambers) and A.B. v.

Bragg Communications Inc. , 2011 NSCA 26 (C.A.) , leave to appeal granted October 13, 2011 (S.C.C.). The court ’ s consideration of the confidentiality order weighs the constitutional open court principle, that the Supreme Court of Canada has approved on many occasions, in the balance with any need for confidentiality in the circumstances at hand. Ms. Raymond has not given notice of this motion to the media, through the protocol on the Courts of Nova Scotia website or in any other fashion. She has not given notice to internet providers, whom she also seeks to enjoin.

There has been no opportunity for any of these parties, who would be bound by the restraining order, to address the open court principle or its application here. [ 22 ] In

summary, I have no substantive jurisdiction to grant the requested motion against Ms. Brauer. Without having given notice, Ms. Raymond has not followed the proper procedure to seek a confidentiality order against other parties, such as the media or internet providers. Conclusion [ 23 ] I dismiss Ms. Raymond ’ s motion, with costs in the cause.

Fichaud, J.A.