P.G.B. v. Nova Scotia (Community Services), 2014 NSCA 83

Nova Scotia Court of Appeal Citation: P.G.B. v. Nova Scotia (Community Services) , 2014 NSCA 83 Date: 20140912 Docket: CA 428759 Registry: Halifax Between: P.G.B. Appellant v. The Minister of Community Services and S.M.B. Respondents Restriction on Publication: 94(1) Children and Family Services Act Judge: Bourgeois, J.A.

Motion Heard: September 11, 2014, in Halifax, Nova Scotia in Chambers Held: Motion dismissed Counsel: P.G.B., self-represented Peter McVey, for the Attorney General of Nova Scotia Pamela McKeigan, for the respondent Minister of Community Services not appearing Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act , S.N.S. 1990, c. 5.

PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. 94(1) No 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 or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.

Decision: INTRODUCTION [ 1 ] In Chambers on September 11 th , I heard a motion brought by the appellant to waive the requirement of filing a transcript in support of his appeal. After hearing submissions from the appellant and the Attorney General of Nova Scotia, I advised the motion was dismissed with reasons to follow. These are my reasons. BACKGROUND [ 2 ] The appellant is currently involved in a matter before the Supreme Court of Nova Scotia (Family Division).

He has applied, pursuant to subsection 48(3) of the Children and Family Services Act , S.N.S. 1990 c. 5 to terminate orders which placed his two children in the permanent care and custody of the Minister of Community Services. [ 3 ] The appellant is of the view that he requires the assistance of legal counsel in order to competently advance his application, but asserts he lacks the financial resources to retain counsel. Having been unsuccessful in his attempts to obtain representation through Nova

Scotia Legal Aid, he brought a motion seeking an order for state funded counsel. That motion was responded to by the Attorney General of Nova Scotia. The motion was heard by Justice Dellapinna of the Nova Scotia Supreme Court (Family Division) and dismissed with written reasons released on May 16, 2014 (reported as 2014 NSSC 182 ), and an order was subsequently issued on June 6, 2014. It is from this decision and order which the appellant has appealed. As was the case in the motion before Justice Dellapinna, the respondents did not appeal before this Court in relation to the appellant’s present motion.

ISSUE [ 4 ] The appellant submits that the requirement to produce a transcript of the motion before Justice Dellapinna should be waived. In his submissions he further asserts that should I determine a transcript is required, the Attorney General of Nova Scotia ought to be ordered to pay the cost of same. It is these two matters which I will address herein. ANALYSIS [ 5 ] The appellant submits in his affidavit filed in support of his motion that “the financial requirements of preparing my appeal, particularly transcription are beyond my ability to currently facilitate”.

He attaches a copy of his 2013 Notice of Assessment showing total income of $6,987.00 as well as a statement from the Province of Nova Scotia showing monthly Income Assistance benefits of $711.00. Other than his assertions of impecuniosity and the above referenced material, there is no further evidence before the Court of what other resources may be available to the appellant in terms of funding preparation of the transcript. [ 6 ] The appellant relies upon the decision of Beveridge, J.A. in Li v.

Jean , 2012 NSCA 63 as authority for the proposition that the Court has the discretion to waive the requirement of a transcript. I have found Justice Beveridge’s decision helpful, particularly in relation to the interplay between Civil Procedure Rule 90.29(5) and the provisions contained in Rule 90.30(4) and (5). He writes: [22] The second, and more fundamental problem, is that the appellant has been unable to identify any authority for me to make an order requiring the respondent Tribunal to pay for the preparation of the transcript.

The Judicature Act , R.S.N.S. 1989, c. 240, bestows on the judges of the Court of Appeal broad rule-making powers regarding appeals. Rule 90.29 of the Nova Scotia Civil Procedure Rules provides as follows: 90.29

(1) An appellant who appeals from a decision or order of a court or judge must request a copy of the audio recording of the proceeding from the prothonotary or clerk of the court appealed from, and pay the prescribed fee to the prothonotary or clerk.

(2) The prothonotary or clerk, on receipt of the prescribed fee from the appellant, must provide the appellant with an audio recording of the entire hearing of the proceedings, including evidence, the oral submissions and all oral rulings and decisions.

(3) An appellant who appeals from a decision or order of a tribunal must request a copy of the entire record of the proceedings before the tribunal and pay the prescribed fee for the copy to the tribunal.

(4) The tribunal or other person or body that holds the record must, on receipt of the request and the prescribed fee from the appellant, provide the appellant with a copy of the entire record of the proceedings, including all rulings and decisions.

(5) The appellant must cause a transcript of the proceeding to be prepared by a certified court reporter, unless legislation provides otherwise or a judge permits otherwise. [23] Rule 90.29(5) clearly requires an appellant to cause a transcript of the proceeding under appeal to be prepared by a certified court reporter. There are two exceptions. Legislation or a court order. There are no legislative provisions that apply.

I may excuse compliance, but I see no authority to direct another party to an appeal, or any other person, to prepare a transcript or pay for the preparation of a transcript. [24] In my opinion, the discretion set out in Rule 90.29(5) must be read in conjunction with Rule 90.30(4) and (5). Rule 90.30 sets out in detail the requirements for the preparation and filing of appeal books and transcripts. The Rule does permit variance with the requirements of 90.30. Of import is 90.30(4) and (5). These provide: 90.30

(4) Parties to an appeal may make an agreement to avoid the expense or delay of reproducing material unnecessary for the appeal by abridging all or part of the transcript of evidence or of any other material otherwise required to be included in the appeal book, or substituting an agreed statement of facts instead of a transcript or exhibit.

(5) A party may make a motion to a judge of the Court of Appeal for an order abridging a requirement for the form or content of the appeal book. [ 7 ] I have also found instructive the reasons of Oland, J.A. in Ocean v.

Economical Mutual Insurance Company , 2011 NSCA 106 who, after reviewing a number of case authorities, including at least one where the requirement for a transcript was waived, found that a transcript in the matter before her would be essential for the panel to fully appreciate the arguments to be made on appeal. [ 8 ] The appellant has in my view provided insufficient information supporting his claim that obtaining a transcript is beyond his financial reach.

Although it appears his recent income is very modest, it also appears that given the length of the proceeding from which the appeal originates, the cost of the transcript is also relatively modest. In my view, a determination that the appellant’s impecuniosity prevents him from obtaining a transcript must take into consideration factors beyond just his current income. The funds to obtain a transcript may come from a number of sources other than monthly income, including savings or loans, just to name two possible examples.

The Court is unaware of what other resources the appellant may have to facilitate obtaining the transcript – the evidence is silent in that regard.

[9] There is, however, a more compelling reason to dismiss the motion. It is my view that this appeal could not be properly consideredwithout a full transcript of the proceeding before Justice Dellapinna. In the leading decision relating to applications for state-funded counsel, New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46, theSupreme Court of Canada set out a framework for considering such requests.

One of the essential considerations is the capabilities of anapplicant to undertake the litigation, as part of a broader analysis of whether a fair hearing can be had without the benefit of legalrepresentation. To determine whether Justice Dellapinna properly addressed this consideration, it is essential for the panel to reviewhow the appellant had conducted himself in front of the motions judge. The transcript is required for that purpose. [10] Having determined the transcript is necessary, I am aware of no authority in which a respondent or the state has been compelled toprovide same or fund its cost.

I am not prepared to make such an order in this instance. Conclusion [11] I would dismiss the motion for waiver of compliance with the requirement for the filing of a transcript. There will be no award ofcosts. Bourgeois, J.A.