Thomas Percy Tupper Appellant v. Nova Scotia Barristers’ Society v. The Attorney General of Nova Scotia, 2014 NSCA 90

Nova Scotia Court of Appeal Citation: Tupper v. Nova Scotia Barristers’ Society, 2014 NSCA 90 Date: 20141002 Docket: CA 421412 Registry: Halifax Between: Thomas Percy Tupper Appellant v. Nova Scotia Barristers’ Society and The Attorney General of Nova Scotia Respondents Judges: Fichaud, Scanlan and Bourgeois, JJ.A.Appeal Heard: September 15, 2014, in Halifax, Nova ScotiaHeld: Appeal dismissed with costs, per reasons for judgment of Fichaud, J.A.; Scanlan and Bourgeois, JJ.A.concurringCounsel: Mr. Thomas P. Tupper on his own behalf Mr. Raymond F.

Larkin, Q.C., and Alex Gorlewski (Articled Clerk) for the Respondent Nova ScotiaBarristers’ Society Mr. Duane A. Eddy for the Respondent The Attorney General of Nova Scotia Reasons for judgment: [1] Mr. Tupper applied for an extension of time to file a motion for judicial review. The motions judge denied the motion. Mr.Tupper appeals. He asks the Court of Appeal to grant the extension. Background [2] I will summarize the background from the helpful chronology in the decision of the motions judge (2013 NSSC 290). [3] On June 4, 1983, at 1:30 a.m., Mr.

Tupper was driving his motorcycle on Brooklyn Street in Kentville. The lights on hismotorcycle were not working. He was driving at an excessive speed and without a valid licence. He struck an inebriated pedestrian,who sued. As Mr. Tupper was uninsured, he was represented by Judgment Recovery (N.S.) Ltd. The trial judge apportioned liability 75% against Mr. Tupper and 25 % to the pedestrian’s contributory negligence. Hake v. Tupper (1985), (NS SC), 68N.S.R. (2d) 415 (T.D.). Mr. Tupper did not appeal. [4] Judgment Recovery paid the pedestrian’s damages award and sought indemnity from Mr. Tupper. [5] Mr.

Tupper did not pay Judgment Recovery. As a result, his driver’s licence has been suspended since 1985. [6] Mr. Tupper holds the view that the pedestrian deliberately caused the accident and fraudulently sued him for damages. Healso believes that each party and every lawyer involved with the litigation process has joined the fraud. [7] In 2007, Mr. Tupper sued the Province, Judgment Recovery and Judgment Recovery’s lawyers. The Supreme Court of NovaScotia dismissed his claim. The Court of Appeal upheld the dismissal. His subsequent attempts to sue lawyers, his ex-girlfriend and herlawyer, have been dismissed.

Tupper v. Nova Scotia (Attorney General), 2007 NSSC 232, and 2008 NSCA 44, leave denied [2008] 3S.C.R. x. Tupper v. Nova Scotia (Attorney General), 2014 NSCA 60. Tupper v. Wheeler, 2005 NSCA 74. In Tupper v. Nova Scotia(Attorney General), 2014 NSSC 213, para 10, Justice Scaravelli characterized Mr. Tupper as a vexatious litigant. [8] On October 31, 2011, Mr. Tupper filed a complaint with the Nova Scotia Barristers’ Society against seven of its current and

former members. These include the pedestrian’s lawyer and Judgment Recovery’s lawyers during the personal injury trial, Mr. Tupper’slawyer who advised him whether to appeal the trial judge’s apportionment ruling, and the lawyers who represented the defendants in Mr.Tupper’s 2007 action. [9] On November 16, 2011, Ms. Victoria Rees, the Society’s Director of professional responsibility, notified Mr. Tupper that hiscomplaint was dismissed because there was no evidence of misconduct. Ms. Rees advised Mr. Tupper that he could seek a review by aReview Subcommittee. On December 16, 2011, Mr. Tupper alleged that Ms.

Rees was biased, and requested a review. On February 21,2012, the Subcommittee upheld the dismissal of Mr. Tupper’s complaint. [10] On March 23, 2012, Mr. Tupper appealed the decision of the Review Subcommittee to the Nova Scotia Court of Appeal. OnMarch 27, 2012, counsel for the Attorney General of Nova Scotia notified Mr. Tupper that the legislation does not afford a right ofappeal from a decision of a Review Subcommittee to the Court of Appeal, and suggested that, instead, Mr. Tupper should considerjudicial review under Civil Procedure Rule 7. On March 29, 2012, the Society’s counsel by email gave Mr.

Tupper the same message. [11] Mr. Tupper nonetheless pressed forward with his appeal. At the hearing in the Court of Appeal, on January 23, 2013, Mr.Tupper acknowledged that he had no right of appeal, but submitted that the absence of an appeal was unconstitutional. This Courtdisagreed, and dismissed his appeal for want of jurisdiction (2013 NSCA 14). [12] Mr. Tupper sought leave to appeal to the Supreme Court of Canada. On June 27, 2013, the Supreme Court denied leave(Docket 35292). [13] On July 16, 2013, Mr.

Tupper moved for an extension to apply for judicial review of the Review Subcommittee’s decision ofFebruary 21, 2012. Justice McDougall heard the motion on August 15, 2013, and issued a decision on October 2, 2013 (2013 NSSC290). The motions judge denied Mr. Tupper’s motion. [14] Mr. Tupper appeals. His grounds include allegations that the motions judge was biased, the Society’s lawyers engaged inmisconduct, and that all the Presidents of the Barristers’ Society since 1981 have acted in bad faith and committed obstruction of justice. He moves to add fresh evidence. Fresh Evidence [15] Mr.

Tupper’s proposed fresh evidence is a compilation of materials, most of it unattributed and in inadmissible form, and muchof it scissored from unidentified documents. A number of pages relate to the 1983 highway accident or the ensuing personal injurylitigation. There are extracts from what appear to be writings by Mr. Tupper over the years characterizing his impressions of misconductwithin the legal profession. There is no explanation why this material could not have been offered to the Court below. Mr. Tupper hasspent considerable effort to compile the package.

But its contents have no connection to the issue before the Court of Appeal – whetherthe motions judge erred by denying the extension. [16] Admission of fresh evidence is governed by: (1) whether there was due diligence in the effort to adduce the evidence at theearlier hearing; (2) relevance of the fresh evidence; (3) credibility of the fresh evidence; (4) whether the fresh evidence could reasonablyhave affected the result. Further, the fresh evidence must be in admissible form. Palmer v. The Queen (SCC), [1980] 1S.C.R. 759, at p. 775. Nova Scotia (Community Services) v.

T.G., 2012 NSCA 43, paras 77-78, and authorities there cited. Mr. Tupper’sfresh evidence does not satisfy the first, second and fourth criteria, and is not in admissible form. [17] I would dismiss the motion to add fresh evidence. The Extension [18] Civil Procedure Rule 7.05(1) states that an application for judicial review must be made by the earlier of 25 days from thecommunication of the decision or six months from the making of the decision. The decision of the Review Subcommittee wascommunicated to Mr. Tupper on February 21, 2012.

His time limit expired in the third week of March 2012. [19] Whether to extend is discretionary. Rule 2.03(1)(

c) says: 2.03 – General judicial discretions

(1) A judge has the discretions, which are limited by these Rules only as provided in Rules 2.03(2) and (3), to do any of thefollowing: … (

c) excuse compliance with a Rule, including to shorten or lengthen a period provided in a Rule and to dispense with notice to a party. [20] In Fawson v. St. Clair, 2013 NSCA 123, Justice Saunders stated the standard of review to a discretionary decision: [16] It is settled law that any decision based on the judicial exercise of discretion is entitled to considerable deference on appeal. In suchcircumstances an appellant bears a heavy burden. It is no longer necessary to concern oneself with an inquiry as to whether or not theeffect of the impugned order had a final, terminating effect on the proceedings.

There is now but one standard of review in such matters. We will not intervene unless the judge erred in principle or, to the extent to which the judge was exercising a discretion, a patent injusticehas occurred. [citations omitted] [21] In Bellefontaine v. Schneiderman, 2006 NSCA 96, Justice Bateman set out the “three-part test” for an extension: [3] A three-part test is generally applied by this Court on an application to extend the time for filing a notice of appeal, requiring that theapplicant demonstrate (Jollymore Estate Re (2001), 2001 NSCA 116 , 196 N.S.R. (2d) 177 (C.A. in Chambers) at para 22):

(1) the applicant had a bona fide intention to appeal when the right to appeal existed; (2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and (3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of which being that there is a strong case for error at trial and real grounds justifying appellate interference. [4] Where justice requires that the application be granted, the judge may allow an extension even if the three part test is not strictly met. [citation omitted] [ 22 ] The three-part test has “morphed into being more properly considered as guidelines or factors which a Chambers judge should consider in determining the ultimate question as to whether or not justice requires that an extension of time be granted”: Farrell v.

Casavant , 2010 NSCA 71 (Chambers), para 17 ; Deveau v. Fawson Estate , 2013 NSCA 54 (Chambers), para 15 , and authorities there cited. [ 23 ] The motions judge’s decision (paras 25-26) cited those principles. [ 24 ] The motions judge (para 28) concluded that Mr. Tupper had no reasonable excuse for his delay in applying for judicial review. I agree. Counsel for the Attorney General and the Society separately informed Mr. Tupper that there was no appeal to the Court of Appeal, and that the appropriate course was an application for judicial review under Rule 7. Mr.

Tupper chose to ignore the advice. [ 25 ] The motions judge (paras 29-44) also determined that Mr. Tupper’s proposed grounds for judicial review had no merit. As the judge noted, “[e]ssentially, Mr. Tupper argues that the dismissal of his complaint is evidence that the Review Subcommittee is biased against him”. Since the 1980s, Mr. Tupper has operated from the premise that anyone who disagrees with him must have been manipulated by biased lawyers. No evidence supports that view. [ 26 ] The motions judge then turned from the three-part test, to the over-arching consideration of the interests of justice.

He concluded: 45. … I have no difficulty concluding that the dismissal of Mr. Tupper’s motion will best serve the interests of justice. … Mr. Tupper’s sincerity of belief, however, is incongruent with the evidence he offers to support the serious allegations he levels at the lawyers and the respondent. His case for judicial review has no chance of success and must not be entertained any further. [ 27 ] The motions judge properly applied the principles, and made no error of law. His ruling leads to no patent injustice. Conclusion [ 28 ] I would dismiss the appeal. [ 29 ] The motions judge did not award costs.

I would order that Mr. Tupper pay appeal costs of $500 forthwith to each Respondent. Fichaud, J.A. Concurred: Scanlan, J.A. Bourgeois, J.A.