Raymond v. Brauer, 2016 NSCA 36

Nova Scotia Court of Appeal Citation: Raymond v. Brauer , 2016 NSCA 36 Date: 20160509 Docket: CA 450170 Registry: Halifax Between: Paulette Raymond Appellant v. Connie Brauer and Victor Harris Respondents Judge: Scanlan, J.A. Motion Heard: April 21, 2016, in Halifax, Nova Scotia, in Chambers Held: Motion to strike Notice of Appeal granted. Counsel: Appellant in person Respondents in person Reasons for judgment: [ 1 ] This decision relates to a motion by the respondents asking me to dismiss an appeal by Paulette Raymond. Ms. Raymond’s appeal relates to an order of Nova Scotia Supreme Court Justice Gregory Warner dated March 24, 2016 where he dismissed a motion for

summary judgment as filed by Paulette Raymond. The motion for

summary judgment was made well after the date assignment conference had been held on the matter. His order states that the

summary judgment motion “… [s]hall be dismissed without a review of the merits, based on Civil Procedure Rule 13.05 (1), as amended.” [ 2 ] That Rule was added on February 26, 2016. It prohibits motions for

summary judgment after a date assignment conference unless a judge directs otherwise. [ 3 ] I do not have the benefit of a transcript from the court below but I am satisfied that none is required for me to deal with the respondents’ motion. I am satisfied that, for the reasons set out below, the motion to dismiss the appeal should be granted. Background [ 4 ] For years, the parties have been involved in what can only be described as torturous litigation.

In a decision dated November 5, 2015 ( 2015 NSCA 106 ) Justice Bourgeois suggested the parties had been before the appeal court at least six times on the same file. This would therefore be the seventh time, and the action has still not gone to trial. [ 5 ] Some things have changed since Justice Bourgeois’ decision. The trial has been adjourned to July 4-8, 2016, and it is now set as a judge alone trial. In their brief, the respondents suggest the trial dates have been rescheduled five or six times since the action was commenced. Analysis [ 6 ] I start by referencing Ms. Raymond’s grounds of appeal: 1.

Warner J. erred in dismissing my

summary judgment motion without a review of its merits due to a change in Civil Procedure Rule 13.04 to 13.05(1) , which prohibited a party from making a

summary judgment motion after a Date Assignment Conference had been actioned and completed. 2. Warner J. failed to draw reasonable inferences; failed to use inherent discretion with regard to procedural fairness and due process; failed to take a purposive approach in decision-making; and failed to apply exceptions to Rule 13.05 (1) with respect to Raymond v Brauer .

3. Warner J. erred when he applied Rule 13.05(1) , as amended on February 26, 2016 and published on March 7, 2016 instead of Rule 13.04, after confirmation by the Promontory’s (sic) letter on March 11, 2016 the Appellant was permitted to file a motion for

summary judgment on evidence with respect to the Defendant’s Counterclaim. 4. Warner J. erred in failing to review the substantive merits and precedential value of this litigation as exceptional . Warner J. failed to recognize Raymond v. Brauer as an exception to Rule 13 written in any form including their amendments created in 1972, in 2008 and in 2016. ( Bold in the original) [ 7 ] What this appears to boil down to is a complaint by Ms. Raymond that Justice Warner erred in refusing to use his discretion and allow the

summary judgment motion to proceed. This he was entitled to permit pursuant to the Civil Procedure Rules , as amended on February 26, 2016. I refer specifically to Rule 13.05: 13.05

(1) A motion for

summary judgment on evidence may be made any time after pleadings close and before a date assignment conference is requested, unless a judge directs otherwise.

(2) A judge who conducts a date assignment conference and directs that a motion for

summary judgment on evidence may be made must set a deadline by which the motion is to be heard. [ 8 ] Ms. Raymond’s motion was well after the date assignment conference. In fact, the record would suggest that many dates for trial were set and lost or moved for one reason or another. [ 9 ] Ms. Raymond acknowledges that, absent a motions judge exercising discretion to allow a

summary judgment motion to proceed, Rule 13.05 prohibits a

summary judgment motion once the date assignment conference has been held. Ms. Raymond argued that it is simply not fair that the motions judge apply the new Rule and dismiss this, the fourth

summary judgment motion. I suggest if there was ever the need to justify the existence of Rule 13.05 this is such a case. Courts do not exist simply to provide a forum for parties to heap abuse on one another through repeated motions asking for the same relief. Courts and court rules exist to allow for the speedy and just resolution of conflicts, based on the rule of law. While it is more than apparent that the parties have reached an impasse, the resolution of this dispute through the courts has been anything but efficient or speedy. [ 10 ] Ms. Raymond is self-represented. I took care in hearing Ms.

Raymond to try and determine if she simply had difficulty articulating a valid ground of appeal. The grounds for appeal are laced with legalistic terminology, mostly used out of context. As I ferret through the wording, searching for substance, the only thing I can glean is that Ms. Raymond simply did not like the fact that the rule prevented her from advancing yet another

summary judgment motion. One party, not liking the outcome, has never been in and of itself a valid ground of appeal. The futility of my search for valid grounds of appeal was confirmed by Ms. Raymond’s oral submission on the motion where, in essence, she said it was simply not fair that she did not get a hearing on the merits. [ 11 ] In her Notice of Appeal Ms. Raymond suggests that the motion before Justice Warner was of precedential value and “ exceptional ”. She went on to reference the earlier appeal before Justice Bourgeois on this same case. I agree with Ms.

Raymond that this is an exceptional case, but only to the extent that the number of motions and appeals in this file are exceptional. That does not in any way justify the abandonment of Rule 13.05. [ 12 ] The fact that a trial judge might refuse to exercise his discretion and allow a single, let alone a fourth or fifth

summary judgment motion on the same action does not surprise me. [ 13 ] The amended rule does not suggest what issues the amendments were intended to address. Clearly one consequence of the new Rule is that it allows an action to proceed to trial in an orderly fashion once a trial date has been set. Trial dates should not be unnecessarily interfered with through repeated motions for

summary judgment. [ 14 ] I now turn to the issue of whether I can, sitting alone, order that the appeal be struck. Law [ 15 ] Civil Procedure Rule 90.40 permits a single judge to summarily dismiss an appeal in narrow circumstances. It provides: 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. [ 16 ] Justice Bourgeois discussed the limited power of a single judge in her earlier decision in this matter. (See 2015 NSCA 106 , ¶11- 13) She included a reference to MacDonald v. Nova Scotia (Attorney General) , 2012 NSCA 64 , where Justice Beveridge referenced Fares v. CIBC Bank , 2009 NSCA 124 . In Fares , Roscoe J.A. discussed the grounds for appeal and said: [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 contest 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. [ 17 ] In this appeal what the Notice of Appeal suggests is that the motions judge had a discretion to apply the amended Rule 13.05 and allow the

summary judgment to proceed. Ms. Raymond suggests that by refusing to allow it to proceed, the court lost an opportunity to establish a precedent in, what Ms. Raymond described, as “exceptional” litigation. I am satisfied that precedents are best left to be established by cases that have merit, not by vexatious motions that serve no purpose other than to clutter the court record. The fact that a

case may establish a precedent is not a valid ground of appeal. [ 18 ] In the end, I conclude that Ms. Raymond simply did not think that it was fair to apply the Rule to her. Justice Warner applied the Rule as it is written. In my view, the Notice of Appeal does not disclose a valid ground of appeal. Ms. Raymond’s appeal should be dismissed. [ 19 ] I grant the motion, and dismiss the Interlocutory appeal. Costs [ 20 ] Justice Bourgeois ordered Ms. Raymond to pay costs of $500 in the earlier motion. I am satisfied that is an appropriate amount for Ms. Raymond to pay on this motion as well. Costs of $500 are payable forthwith. Scanlan, J.A.