Mercier v. Nova Scotia (Attorney General), 2015 NSCA 90

Nova Scotia Court of Appeal Citation: Mercier v. Nova Scotia (Attorney General) , 2015 NSCA 90 Date: 20151006 Docket: CA 428778 Registry: Halifax Between: Roger Edouard Mercier Respondent/Appellant v. Attorney General of Nova Scotia and Police Complaints Commissioner Applicants/Respondents Judge: The Honourable Justice Cindy A.

Bourgeois Motion Heard: September 24, 2015, in Halifax, Nova Scotia in Chambers Held: Motion granted Counsel: Duane Eddy, for the Applicants/Respondents Roger Edouard Mercier, Respondent/Appellant in Person Decision: [ 1 ] In Chambers on September 24, 2015, I heard a motion brought by the Respondents for an order dismissing Mr. Mercier’s appeal due to his failure to post security for costs. Following submissions, I reserved my decision. For the reasons to follow, the motion is granted. Mr. Mercier’s appeal is dismissed. Background: [ 2 ] The background giving rise to Mr.

Mercier’s appeal was set out in my earlier decision in which it was found that an order for security for costs was warranted. In Mercier v. Nova Scotia (Attorney General) , 2014 NSCA 101 , it was noted as follows: [2] The appeal presently before the Court arises from a decision of Justice Arthur LeBlanc dated February 27, 2014 (see 2014 NSSC 79 ). [ 3 ] In October of 2010, Mr. Mercier was arrested by a member of the Halifax Regional Police and charged with two counts of breach of recognizance under s. 811 of the Criminal Code . Those charges were dismissed on November 30, 2010 due to want of prosecution.

The Crown prosecutor responsible for the file was Mr. Arthur Theuerkauf. [ 4 ] On April 6, 2011, Mr. Mercier filed a complaint against the arresting officer pursuant to the Police Act , S.N.S. 2004, c. 31. On September 29, 2011, the Complaints Commissioner declined to refer the complaint to the Police Review Board. Mr. Mercier challenged that decision, seeking judicial review before the Supreme Court of Nova Scotia, eventually coming before Justice LeBlanc. [ 5 ] For the purpose of considering the appropriateness of an order for security for costs, the litigation history of this matter is relevant.

As such, it will be outlined in some detail. [ 6 ] Mr. Mercier filed a Notice of Judicial Review on October 21, 2011 in which he sought to challenge the decision of the Police Complaints Commissioner. There was apparent difficulty with reaching agreement as to what would properly constitute the Record on judicial review. Mr. Mercier brought a motion challenging the Record filed by the respondents, and seeking an order permitting him to file additional materials to supplement it. He also submitted the respondents had improperly failed to include materials in the Record which were in their respective possession.

Justice Coady heard the motion, and by order issued May 15, 2012, it was dismissed without costs. [ 7 ] On May 18, 2012, Mr. Mercier filed another motion challenging the adequacy of the Record. By order issued June 12, 2012, Justice Moir dismissed the motion, and ordered Mr. Mercier pay costs of $250.00 to the respondents “forthwith”.

[ 8 ] On July 3, 2012, Mr. Mercier filed a Notice of Appeal to this Court, where he sought to appeal the interlocutory decisions of Justices Coady and Moir. By decision dated April 10, 2013 that appeal was dismissed, with Mr. Mercier being ordered to pay costs of $200.00 to the respondents “forthwith”. See 2013 NSCA 43 . [ 9 ] Following dismissal of the above interlocutory appeal, on June 24, 2013 Mr. Mercier filed a Notice of Motion seeking to amend the Notice of Judicial Review to “permit the completion of the record”. That motion was heard by Justice Pickup, and dismissed.

By order issued July 3, 2013, Justice Pickup ordered Mr. Mercier to pay costs of $200.00 to the respondents. [ 10 ] Following Justice LeBlanc’s decision on the judicial review, Mr. Mercier filed a Notice of Appeal challenging that decision, as well as the subsequent costs decision ( 2014 NSSC 309 ). The Notice of Appeal sets out 15 detailed grounds of appeal encompassing seven pages. [ 11 ] I note that following the filing of the Notice of Appeal on September 18, 2014, Mr.

Mercier brought a motion to this Court in chambers seeking “the court cause the production of the transcript” of the matter before Justice LeBlanc. That matter was heard on October 9, 2014 at which time Mr. Mercier clarified that he was seeking to have this Court order the respondents pay for the cost of the transcript. That motion was dismissed, and given that the respondents had not sought costs, none were ordered. See 2014 NSCA 93 . [3] By order issued November 6, 2014, Mr. Mercier was ordered to pay security for costs in the amount of $500.00 on or before December 19, 2014. [4] On December 3, 2014, Mr.

Mercier filed a Motion seeking an extension of time to make payment of the ordered security for costs, as well as seeking the Court order disclosure of documents purportedly in the possession of the Halifax Regional Police Department and others. Those requests were heard and dismissed by MacDonald, C.J.N.S. by order issued on December 23, 2014. [5] Mr. Mercier has not paid the security for costs. On May 22, 2015, the Respondents filed the present motion.

Originally scheduled to be heard on June 18, 2015, the matter was adjourned by Farrar, J.A. to September 17, 2015. [6] The parties appeared before me on September 17th. Mr. Mercier had filed nothing in response to the Respondents’ motion. At that time a copy of a decision, Dataville Farms Ltd. v. Colchester County (Municipality) , 2014 NSCA 95 , was provided to the parties, in the event it may be relevant to their submissions. Both Mr. Mercier and counsel for the Respondents were invited to make further submissions or file additional evidence if they wished, after reviewing Dataville Farms .

The motion was adjourned to September 24, 2015. Law [7] This motion is brought pursuant to Civil Procedure Rule 90.42. It provides:

(1) A judge of the Court of Appeal may, on motion of a party to an appeal, at any time order security for the costs of the appeal to be given as the judge considers just.

(2) A judge of the Court of Appeal may, on motion of a party to an appeal, dismiss or allow the appeal if an appellant or a respondent fails to give security for costs when ordered. [8] The Respondents rely on 90.42(2). That provision provides a judge “may” dismiss an appeal should security for costs not be given as ordered. It does not, in my view, make such an automatic outcome. [9] In Dataville Farms , the Court addressed what factors should be considered when faced with a motion for dismissal due to a failure to post security for costs.

I note in particular the following: [21] So what does the Court consider when faced with a motion for dismissal pursuant to Rule 90.42(2)?

Although there are a number of authorities which consider security for costs, there is little authority which address what considerations the Court should employ when a motion for dismissal arises following such a direction. … [25] Once it is established by evidence that an appellant has failed to abide by an order requiring the posting of security for costs, in my view, the onus then shifts to the appellant to provide compelling reasons why dismissal is not in the interests of justice.

Support for this proposition is found in the Court’s well established approach to motions to dismiss arising from an appellant’s failure to perfect. I have found instructive the comments of Saunders, J.A. in Islam v. Sevgur , 2011 NSCA 114 , where he observes: [35] The Rule is silent as to the factors which may guide a judge in the judicial exercise of his or her discretion when deciding whether to grant or deny the Registrar’s motion. See generally CIBC Mortgage Corp. v. Ofume , 2004 NSCA 134 (in Chambers); Mason v. Mason , 2007 NSCA 43 (in Chambers); MacDonald v.

Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2010 NSCA 23 (in Chambers); and S.S. v. D.S. , 2011 NSCA 14 (in Chambers). [36] The approach I take in such matters is this. Once the Registrar shows that the rules for perfecting an appeal have been breached, and that proper notice of her intended motion has been given, the defaulting appellant must satisfy me, on a balance of probabilities, that the Registrar's motions ought to be denied. To make the case I would expect the appellant to produce evidence that it would not be in the interests of justice to dismiss the appeal for non-compliance.

While in no way intended to constitute a complete list, some of the factors I would consider important are the following: (

i) whether there is a good reason for the appellant's default, sufficient to excuse the failure. (ii) whether the grounds of appeal raise legitimate, arguable issues.

(iii) whether the appeal is taken in good faith and not to delay or deny the respondent's success at trial. (iv) whether the appellant has the willingness and ability to comply with future deadlines and requirements under the Rules . (

v) prejudice to the appellant if the Registrar’s motion to dismiss the appeal were granted. (vi) prejudice to the respondent if the Registrar’s motion to dismiss were denied. (vii) the Court's finite time and resources, coupled with the deleterious impact of delay on the public purse, which require that appeals be perfected and heard expeditiously. (viii) whether there are any procedural or substantive impediments that prevent the appellant from resuscitating his stalled appeal. [37] It seems to me that when considering a Registrar's motion to dismiss, a judge will wish to weigh and balance this assortment of factors, together with any other circumstances the judge may consider relevant in the exercise of his or her discretion. [26] In the present case, Rule 90.42(2) is also silent with respect to the factors which should guide the exercise of the Court’s discretion.

The factors as outlined in Islam , supra are also applicable to a motion under this Rule, although I would suggest one modification as it relates to a consideration of the grounds of appeal. [27] There is in my view, an important distinction between a motion to dismiss for failure to perfect, and the present matter. In the former instance, an appellant has failed to follow procedural time lines as set out in the Civil Procedure Rules .

However, when an appellant faces the prospect of dismissal due to a failure to post security for costs, the peril arises due to the failure to follow an order of the Court – an order obtained after the consideration of evidence, and a finding of special circumstances justifying that directive. Although the importance of abiding by procedural timelines should not be minimized, the failure to follow an order of the Court should be considered in a more serious light.

An appellant should have not merely arguable grounds of appeal, but in my view a strong case for appellate intervention. [28] To fend off dismissal, an appellant who has failed to post security for costs, must come prepared to satisfy the Court with properly filed and admissible evidence, that it would not be in the interests of justice to grant the motion. An appellant who simply re- argues that security is unwarranted, will likely be unsuccessful. [10] I will apply the same approach to the present matter.

Analysis [11] Prior to considering the merits of the dismissal motion, I want to address several requests, referred to as “motions” made by Mr. Mercier in his written and oral submissions. Firstly, Mr. Mercier asks that the motion for dismissal be adjourned without date, due to the existence of “criminal investigations” into the actions of the Respondents. There is nothing before the Court by way of evidence to establish the nature or stage of these investigations, nor how they are relevant to the appeal. In his oral submissions, Mr.

Mercier advised that the investigations are a result of his recent complaint to the RCMP in relation to the Respondents. I am not prepared to adjourn the motion to dismiss. [ 12 ] The other relief sought by Mr. Mercier was for this Court to order the Respondents to refrain from destroying relevant documents in their possession and to refrain from interfering in the above noted criminal investigations.

I am unaware of any authority which would permit me to grant such orders, and in any event, there is nothing before this Court to establish that such remedies would be warranted. [ 13 ] Turning to the merits of the motion before me, I find it helpful at this point to review the evidence before the Court. The Respondents filed an affidavit of their counsel Mr. Eddy, on May 22, 2015. The sole purpose of that evidence is to establish that Mr. Mercier has not posted security for costs as ordered. As noted earlier, that is not disputed. [ 14 ] Mr. Mercier did not file an affidavit in opposition to the motion.

After being provided with the Dataville Farms decision, Mr. Mercier filed written submissions. After reciting factual background, Mr. Mercier submits as follows: Legislation in respect to addressing actions of an officer in the employ of a Municipal police force has been past( sic ) into law by the government of Nova Scotia. As the Appellant in these matters, I have followed the governing legislation, the Police Act of Nova Scotia . It is the responsibility of the Superior Courts of Nova Scotia to hold the Respondents accountable to the law and the governing legislation.

As the Appellant, I have made it known to the Superior Courts of Nova Scotia that an investigation into criminal acts committed by the Respondents and/or employees of the Respondents under the Criminal Code of Canada would be commenced but it must not be allowed to hinder the actions of the courts in requiring the Respondents to respect their legal responsibility to produce a complete record for the court’s review. It is an affront to our justice system to permit the Respondents to dictate what it will and will not provide to the court for its review.

It is the Respondents in these proceedings that are in control of all material pertaining to the complaint of the Appellant. [ 15 ] I have carefully reviewed the Court’s file to determine whether Mr. Mercier has, in any of his previous appearances before this Court, filed evidence which may be of assistance to him in fending off the motion for dismissal and which address the merits of his appeal. Specifically, I have reviewed his affidavits filed June 23, 2014; September 24, 2014; October 27, 2014; December 3, 2014 and June 10, 2015. Nothing in those affidavits provide evidence which is of assistance to Mr.

Mercier. [ 16 ] Two factors are particularly relevant to the outcome of this motion: (1) whether there is a good reason for Mr. Mercier’s default, sufficient to excuse the failure to comply with the order to post security for costs; and (2) whether he has shown there is sufficient merit to his appeal.

[ 17 ] With respect to the reason for his default, Mr. Mercier did not address this in any substance in his submissions. That being said, it has been previously accepted by this Court that Mr. Mercier “lives on a very limited income” ( 2014 NSCA 101 ). It was further recognized that setting security too high could effectively prevent Mr. Mercier from advancing his appeal, noting as follows: [32] In the present circumstances, the court must balance the respondents’ legitimate request for security, with the reality of Mr. Mercier’s financial position.

Security should not be set so high as to constitute an unreasonable bar to Mr. Mercier continuing his appeal, nor so low that it does not provide adequately for potential costs. [ 18 ] Mr. Mercier has not provided any explanation as to why the ordered security, $500.00, has not been paid since the issuance of the order on November 6, 2014 to present.

Although he has in earlier affidavits attested to his limited monthly income, I am not satisfied that he has provided any reasonable excuse for his failure, over 11 months, to comply, or attempt to comply with the order. [ 19 ] I find this particularly troublesome given that Mr. Mercier in his motion before MacDonald, C.J.N.S. in December, 2014, had sought an order extending the time to pay security from December 19, 2014 to July 31, 2015. Presumably in making that request, Mr. Mercier felt he had the ability to comply with the order for security, if given more time.

Although that request for additional time was denied, Mr. Mercier did get the additional time he sought, by virtue of the Respondents not filing their motion for dismissal until May, 2015, which was ultimately being heard on September 24, 2015. Despite the passage of time, Mr. Mercier has not paid, even in part, the security ordered. [ 20 ] I turn now to consider the merits of the appeal. Whether I apply the “arguable grounds of appeal”, or the higher “strong case for appellate intervention”, the outcome is the same. Mr.

Mercier has presented nothing which convinces me that his appeal should be permitted to proceed. He made no references whatsoever to the grounds of appeal as stated in the Notice of Appeal, and provided nothing to convince me that any of his grounds were arguable, let alone gave rise to a strong case for this Court to ultimately set aside Justice LeBlanc’s decision. [ 21 ] From his submissions, Mr. Mercier is clearly focused upon his belief that the Respondents have not made proper disclosure, and as such the record in the court below was deficient. The difficulty with Mr.

Mercier repeating this argument, is that there have been three previous decisions, including one from this Court, determining that his concerns with the adequacy of the record have no merit. [ 22 ] In response to this motion, Mr. Mercier has provided no evidence, or submissions which relate directly to the merits of his appeal. He has not explained how Justice LeBlanc erred in the decision under appeal, nor provided anything beyond the bare assertions contained in his Notice of Appeal.

More is required to establish the existence of “arguable” grounds, and such is certainly deficient to convince me that there is a “strong case” for appellate intervention. Disposition [ 23 ] The Respondents’ motion is granted. Mr. Mercier’s appeal is dismissed. As no costs were sought by the Respondents in the event they were successful, none are ordered. Bourgeois, J.A.