MacDonald v. Nova Scotia (Attorney General), 2012 NSCA 64

NOVA SCOTIA COURT OF APPEAL Citation: MacDonald v. Nova Scotia (Attorney General) , 2012 NSCA 64 Date: 20120612 Docket: CA 379468 Registry: Halifax Between: Brad William MacDonald Appellant v. The Attorney General of Nova Scotia representing Her Majesty the Queen in the right of the Province of Nova Scotia Respondent Judge: The Honourable Justice Duncan R. Beveridge Motion Heard: June 7, 2012, in Halifax, Nova Scotia, In Chambers Held: Motion by the respondent to set aside the notice of appeal is granted Counsel: Appellant, in person Ryan T.

Brothers, for the respondent Decision : [ 1 ] The respondent brought a motion to set aside the appellant ’ s notice of appeal on the basis that it failed to disclose a ground for an appeal. I heard the motion on June 7, 2012. I granted it. I did so for the reasons that follow. BACKGROUND

[ 2 ] Mr. MacDonald commenced an action by filing a notice of action and statement of claim in the Nova Scotia Supreme Court on May 27, 2011. These documents were amended on July 4, 2011. [ 3 ] The respondent filed a defence and then brought a motion for

summary judgment on the pleadings to dismiss or set aside the statement of claim on the basis that the pleadings failed to disclose a viable or sustainable cause of action. The motion was based on Rule 13.03 of the Nova Scotia Civil Procedure Rules . It provides: 13.03

(1) A judge must set aside a statement of claim, or a statement of defence, that is deficient in any of the following ways: (

a) it discloses no cause of action or basis for a defence or contest; (

b) it makes a claim based on a cause of action in the exclusive jurisdiction of another court; (

c) it otherwise makes a claim, or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own.

(2) The judge must grant

summary judgment of one of the following kinds, when a pleading is set aside in the following circumstances: (

a) judgment for the plaintiff, when the statement of defence is set aside wholly; (

b) dismissal of the proceeding, when the statement of claim is set aside wholly; (

c) allowance of a claim, when all parts of the statement of defence pertaining to the claim are set aside; (

d) dismissal of a claim, when all parts of the statement of claim that pertain to the claim are set aside.

(3) 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.

(4) A judge who hears a motion for

summary judgment on pleadings may adjourn the motion until after the judge hears a motion for an amendment to the pleadings.

(5) A judge who hears a motion for

summary judgment on pleadings, and who is satisfied on both of the following, may determine a question of law: (

a) the allegations of material fact in the pleadings sought to be set aside provide, if assumed to be true, the entire facts necessary for the determination; (

b) the outcome of the motion depends entirely on the answer to the question. [ 4 ] Mr. MacDonald ’ s statement of claim described how he was on welfare in 2006. He was also employed. He says he told his worker that his father had to go to the hospital for cancer surgery. Ten-twelve days later a letter arrived from his worker requiring him to start seeing an employment counsellor and attend employment meetings. If he failed to do so, his welfare cheque would be affected.

Mr. MacDonald also said that his wife was ill and that welfare tampered with her ability to receive her medication. [ 5 ] His complaints to the Department of Community Services went unanswered. The Ombudsman was unable to help him nor the staff at Nova Scotia and Dalhousie Legal Aid. He said this left him no alternative but to take his claim to court. He sought an award of $4 million. [ 6 ] Justice Moir heard the motion for

summary judgment on the pleadings on January 11, 2012. Mr. MacDonald was self represented. Ryan Brothers was counsel for the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia. [ 7 ] I have reviewed a transcript of the hearing before Justice Moir. Mr. MacDonald explained to Justice Moir that he was not looking for compensation, but for justice. Justice Moir took pains to explain to Mr. MacDonald that he failed to see what kind of remedy the court could provide to him. Mr.

Brothers volunteered to speak with his client to see what steps might be taken for a letter or acknowledgement of the difficult circumstances that Mr. MacDonald experienced. Justice Moir explained to the appellant: THE COURT: ...But there’s nothing the Court can do about it. There is no, to be technical, there’s no cause of action that the law provides that your facts fit into. And so I have to allow the motion that’s made by the Attorney General and dismiss your action. I do that with great respect for your stepping up to protest something that was done to you.

And the Court has asked the Attorney General to give you something in writing - - - MR. MACDONALD: Um-hmm. THE COURT: - - - at least to recognize that they recognize the hurt they caused you and the disrespect they showed towards your father. That’s the most we can do for you, sir. [ 8 ] Mr. Brothers wrote to Mr. MacDonald on February 8, 2012 as follows: I am writing on behalf of the Department of Community Services to address the issues you have raised concerning the Department.

It is important that you know that the Department recognizes the stressors that you have faced during the passing of your father and appreciates this must have been a difficult time. The Department did not intend to cause undue hardship and is regretful of any pain caused. The Employment Support Program for which you were enrolled has mandatory requirements. If said requirements are not met an individual will not be found eligible. The Department’s decision in the present case was strictly based on your participation and whether or not the requirements were met.

It is unfortunate that this matter resulted in legal action. The Department is sympathetic of your situation and hopes this letter provides some closure to you and your family. APPEAL PROCEEDINGS [ 9 ] Mr. MacDonald filed a notice of appeal with the Registrar of the Nova Scotia Court of Appeal on February 15, 2012. The

grounds of appeal he set out are:

(1) I didn’t properly represent myself

(2) Nothing has been done [ 10 ] Mr. MacDonald filed a motion for date and directions on May 23, 2012, to be heard in telephone Chambers on Wednesday, May 30, 2012. The respondent then brought a motion to set aside the notice of appeal pursuant to Rule 90.40(1). this motion was said also to be returnable or to be heard in telephone Chambers on May 30, 2012. [ 11 ] I declined to deal with the motions on May 30, 2012 and requested they be dealt with in regular Chambers on June 7, 2012. [ 12 ] Rule 90.40(1) says: 90.40

(1) A judge of the Court of Appeal may set aside a notice of appeal if it fails to disclose any ground for an appeal. [ 13 ] I am mindful of the distinction between determining if a notice of appeal sets out at least a ground that could ultimately lead to this court possibly granting relief to an appellant, and the role of a panel of this court considering a motion to quash or dismiss an appeal under Rule 90.44 of the basis the appeal is frivolous, vexatious or without merit ( see Cragg v. Eisener , 2012 NSCA 38 ). [ 14 ] In Fares v.

CIBC Bank , 2009 NSCA 124 , Roscoe J.A. dealt with a motion to set aside a notice of appeal under Rule 90.40. She wrote: [6] I agree with the respondents' submissions. The grounds of appeal are hardly comprehensible. While one might decipher the first ground as a claim that there was an error of law and jurisdiction, a ground of appeal must include some particularization or suggestion of what the alleged error of law or jurisdiction is .

In the context of this case, where Justice Wright dismissed an application for a date assignment conference because, among other things, the pleadings had not closed, a bare allegation of an error of law or jurisdiction is insufficient to disclose a valid ground of appeal. [7] The second ground of appeal might be decoded to imply an allegation that the appellant was denied access to service based on racial profiling.

In the absence of some further particular and reference to a specific ruling, finding, or statement of the Chambers judge, I am unable to understand how this ground discloses an error of law or fact. [8] The third ground of appeal is completely inexplicable. [ 15 ] Turning to the grounds of appeal advanced by Mr. MacDonald. His first, is that he did not properly represent himself. I fail to see how this constitutes a proper ground of appeal.

A person who represents himself at a hearing or a trial cannot later complain that his representation was deficient and seek to obtain a legal remedy on appeal on that basis (see for example, R. v. Gordon , [2003] O.J. No. 2145 (C.A.) , Allen v. Canada Post Corp. , 2011 NSCA 72 ). [ 16 ] The remaining ground of appeal “ Nothing has been done ” , makes no suggestion that the learned Chambers judge committed any error of law.

In fact, it doesn ’ t allege the Chambers judge made an error at all. [ 17 ] There may very well be instances where a self represented appellant has been unable to properly articulate his or her complaint of error. An appeal should not be set aside due to clumsy or inarticulate grounds if an amendment can cure the deficiency. This is not one of those cases. Mr. MacDonald ’ s explanation for the ground “ Nothing has been done ” , is that it is a reference to the inaction by government officials to admit their wrongdoing and apologize. This is not a proper ground of appeal.

[ 18 ] The motion to set aside the notice of appeal is granted. The respondent did not seek costs. None will be ordered. Beveridge, J.A.