Cram v. Nova Scotia Veterinary Medical Association, 2016 NSCA 44

Nova Scotia Court of Appeal Citation: Cram v. Nova Scotia Veterinary Medical Association , 2016 NSCA 44 Date: 20160530 Docket: CA 450680 Registry: Halifax Between: John (Jack) N. Cram Appellant v. Nova Scotia Veterinary Medical Association and Dr. Michael Howlett Respondents Judge: Scanlan, J.A. Motion Heard: May 12, 2016, in Halifax, Nova Scotia in Chambers Held: Motion to dismiss appeal granted Counsel: Appellant, in person Douglas Tupper, Q.C. and Ryan Baxter, for the respondent Nova Scotia Veterinary Medical Association G.F. Philip Romney, for the respondent Dr.

Michael Howlett Decision: Background [ 1 ] Cougie, by dogs’ standards, is a senior citizen. Like many senior citizens, he sometimes has mobility issues. Cougie’s owner, Mr. Cram, decided he would spend the winter skiing in the Rocky Mountains and leave Cougie behind. Cougie wasn’t alone, he had a caregiver. When that caregiver noticed the difficulties Cougie was having, he called Cougie’s vet, who without seeing Cougie at his clinic, prescribed Metacam, hoping it would relieve some of Cougie’s pain. [ 2 ] Mr. Cram complained to the Nova Scotia Veterinary Medical Association (the Association) about Dr.

Michael Howlett (Dr. Howlett), the prescribing vet, for having provided a prescription without having seen Cougie. The Association Board handling the complaint eventually dismissed it. [ 3 ] Mr. Cram applied to the Nova Scotia Supreme Court for a Judicial Review of the decision. The Judicial Review hearing has not yet been held. Justice Arthur Pickup did, however, preside over a Date Assignment and Case Management Conference (DAC). He set dates for motions and hearings related to the Judicial Review and for the hearing of the Judicial Review itself. He signed an order dated May 5, 2016, following that DAC. Mr.

Cram filed a Notice of Application for Leave to Appeal and Notice of Appeal in relation to that order. [ 4 ] The Association’s motion before me asks that the Notice of Appeal be set aside as an abuse of the Court’s process. They rely upon two grounds: 1. First, the Association asks this Court to use its inherent jurisdiction of the Court to prevent abuse of the Court’s process, and Civil Procedure Rule 88.02, related to a proceeding that is an abuse of the Court’s process; 2.

Second, the Association asks that the Notice of Appeal be set aside under Civil Procedure Rule 90.40 on the basis that it fails to disclose any ground of appeal. [ 5 ] For ease of reference I set out the relevant portions of Rules 88.02 and 90.40 of the Civil Procedure Rules: Remedies for abuse

88.02

(1) A judge who is satisfied that a process of the court is abused may provide a remedy that is likely to control the abuse, including any of the following: (

a) an order for dismissal or judgment; … Setting aside or dismissing an appeal summarily 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. [ 6 ] On May 12, 2016, after hearing from the parties, I indicated that the motion on behalf of the Association would be granted and that I would be signing an order dismissing the appeal. I further indicated that costs would be payable to the Association and Dr. Howlett in the amount of $2000.00 each in relation to the motion, payable forthwith. I further indicated that I would provide written reasons explaining my decision. These are those reasons. [ 7 ] It is clear that Dr.

Howlett’s attempts to assist Cougie have spawned what counsel for the Association fairly described as a ‘blitzkrieg’ of litigation. Some independent observers may be of the opinion that a complaint to the Association, and perhaps a judicial review of the Association’s process and decision, would be the full extent of the litigation that Cougie’s ordeal has spawned.

In reality, this vet’s attempts to help Cougie have turned into a litigation battlefield, pockmarked with motions, civil actions and private prosecutions too numerous to count. [ 8 ] As regards the Judicial Review, it is apparent from the transcript that what would normally be a straightforward DAC turned into a major ordeal during which Mr. Cram questioned the integrity and credibility of all those who had participated and many who did not.

His wrath was directed not only to the counsel involved, but also to the Chief Justice and other judges of the Supreme Court. [ 9 ] To expand on my earlier reference to the litigation battlefield, counsel for the Association indicates that in addition to the Judicial Review, Mr. Cram has filed suit against a number of individuals, perhaps just about everyone who has in any way been associated with the Association’s Board of Inquiry and Dr. Howlett. Mr. Cram did not take issue when counsel for the Association suggested that even some of Dr. Howlett’s staff have been sued. Nor did he take issue with Mr.

Tupper’s suggestion that Mr. Cram has also commenced private prosecutions against a number of individuals based on their involvement in this case. The court was not provided with full particulars as to those private prosecutions or the names of all of the persons who have suits filed against them. Mr. Cram did not dispute the fact that this is occurring. Mr. Cram did, however, object to the use of the term blitzkrieg. If blitzkrieg were a synonym for abuse then the term would be apt. Instead, it is a term that references an all-out frontal assault. I find it accurately captures the essence of what Mr.

Cram has been doing. [ 10 ] I return to the matter on appeal. The backdrop is an April 18, 2016 appearance in Nova Scotia Supreme Court Chambers where the parties expected to set dates for the Judicial Review and related motions. There was an order arising from that hearing. For ease of reference, I set out the operative terms of that order below: IT IS ORDERED THAT: 1. Leave is granted to the Applicant to further amend his Amended Notice for Judicial Review in the form attached; 2. The April 25, 2016 motion date for the Applicant to seek leave to further amend his Amended Notice for Judicial is released; 3.

The hearing of the Applicant’s motion for

summary judgment is scheduled for one full-day on Tuesday, May 17, 2016 at 9:30 am. The Applicant’s brief is to be filed by April 29, 2016. The Respondents’ brief is to be filled by May 10, 2016. A reply, if any, is to be filed by May 13, 2016; 4. The hearing of the Applicant’s motions for discovery examinations and an injunction against McInnes Cooper are scheduled for Wednesday, May 18, 2016 at 2:00 pm. The Applicant’s brief is to be filed by May 3, 2016. The Respondents’ brief is to be filed by May 11, 2016. Replies, if any, are to be filed by May 16, 2016; 5.

The hearing of the Respondent NSVMA’s motion to file affidavit evidence and the Applicant’s motion for disclosure in addition to the Record are scheduled for one full-day on Thursday, June 16, 2016 at 9:30 am. The respective applicants’ briefs are to be filed by May 30, 2016. The respective respondents’ briefs are to be filed by June 7, 2016. Replies, if any, are to be filed by June 13, 2016. 6. The hearing of the judicial review is scheduled for September 27 and 28, 2016. The Applicant’s brief is to be filed by September 2, 2016. The Respondents’ brief is to be filed by September 16, 2016.

A reply, if any, is to be filed by September 22,2016. The Appeal Book and Transcript of the DAC Proceedings [ 11 ] When Mr. Cram filed the appeal book for these proceedings before me it was not a certified transcript. The respondents have agreed to accept the uncertified version for the purposes of their motion. [ 12 ] That transcript is in excess of 100 pages. It is clear that what should have been a rather straightforward DAC turned into a protracted and complex exchange. There was extensive discussion on the record as to what matters would be dealt with and when.

The issue of the Association’s counsel was discussed, as were a number of other issues. The parties then adjourned and came back to the court with what appeared to be an agreement on the dates for the various motions and the hearing of the Judicial Review. The matter was set to be heard on June 16 and 20 with the understanding that Mr. Cram was to be limited on a number of procedural matters. In spite of the apparent agreement, Mr. Cram then said on the record that the withdrawal of his motions and injunction applications was: “…only

because I’m not really being given a choice…”. He then specified that he was agreeing to the June 16 and 20 dates “…under duress …”saying that “…Well someday I’ll (sic) probably be the subject of an appeal.” [13] The Case Management Judge then said “... Mr. Cram your threats of an appeal and you’re under duress, I’m not going to setdates under that condition.” [Underlining in original] The hearing judge then set the dates for the hearing of the Judicial Review properfor September 27 and 28. These are the dates set out in the Order. [14] Before me Mr.

Cram made submissions complaining that the DAC judge was being vindictive in refusing to retain the Junehearing dates, and adjourning the hearing of the Judicial Review to September. It was Mr. Cram who raised the issue of duress andappeal. It is clear the DAC judge was not going to impose an agreement that one party indicated was extracted under duress, anagreement Mr. Cram suggested would be the subject of an appeal. [15] Before turning to the analysis of the merits of the Association’s motion I want to refer to the grounds of appeal as set out in theNotice of Appeal:

(1) The Appellant had, both before and during the hearing reasonable apprehension of bias on the part of the Honourable Mr. JusticePickup due to reasonable unanswered questions pertaining to just recently disclosed opposing counsel’s marriage to another Judge of theSupreme Court which questions ought to have been answered by said counsel before the hearing, and she, having refused to do that,ought to have been answered so far as possible by the court or ordered to be answered by said counsel, or both.

(2) The Honourable Chief Justice of the Supreme Court of Nova Scotia, having been forwarned by 3 written submissions about theAppellants concerns as expressed in paragraph (1) immediately above, abdicated and failed to even consider said submissions, allowedhis staff to summarily “ask and answer” the Appellant’s justified pleas for intervention in this unseemly situation involving a Judges wifeand 3 judges, when he ought to have exercised his responsibility and/or duty for “the administration of the judicial functions of theSupreme Court” rather than thrice refusing to do anything to intervene, ameliorate or in any way to avoid this unseemly and unjustsituation that the Appellant had no

part in the making and had pleaded for his assistance.

(2) The Honourable Mr.

Justice Pickup, abusing his judicial authority, acting unjustly and/or with apparent bias and partiality, in orderto assist the Respondent NSVMA’s objectives, without any application or request from the Appellant, bizarrely reversed his ownearlier decision of April 11, 2016 when he had summarily refused to agree to the Appellant’s request that on April 18, 2016 during aMotion for Directions already scheduled, that he hear a simple application to amend the NOTICE OF JUDICIAL REVIEW, and then,applied unfair pressure, intimidation and duress upon the self-represented Appellant attempting to force his agreement to proffering theproposed amendments, when, because he rightly foresaw Justice Pickup’s objective to unfairly, to the Appellant’s prejudice, assist theRespondents, refused to do so, until eventually the Appellant literally was forced to ‘bargain’ with Justice Pickup that he would profferhis own amendments only if Justice Pickup “gave his undertaking not to touch or disturb in any way the Appellant’s Motion forSummary Judgment scheduled for a full day’s hearing on May 17, 2016.”

(3) The Honourable Mr. Justice Pickup, abjectly refused to grant Default Judgement or to in any way address the Respondents’ non-compliance with and apparent contempt for the order/direction made by the Honourable Mr. Justice Rosinski on March 3, 2016 that theRespondents file and serve responses to the Amended Notice of Judicial Review,

(4) The Honourable Mr. Justice Pickup unfairly and with abuse of his authority scheduled two Motions of the Appellant for when theywould be of no use in the May 17, 2016 Motion for

Summary Judgment, namely on May18, 2016, the day immediately after the hearingof the

Summary Judgement Motion, the said Motions being for: (

A) for an injunction restraining the NSVMA, it being the tribunal of whose decision is under review, and its counsel, from conductingthemselves in an adversarial or non-impartial way in this proceeding: Northwestern Utilities Ltd. and al. v. Edmonton, [1979] 1 SCR 684, (SCC) Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 (

B) For examinations for Discovery of the NSBMSA Investigator and at least one of the 6 Complaints Committee members.

(5) The Honourable Mr. Justice Pickup, again abusing his Judicial powers, after hearing and directing dates of June 16 and 20, 2106 forthe full hearing of the Judicial Review Application (if still necessary after the

Summary Judgment Motion), upon being advised that theAppellant’s Motions referred to in paragraph 4 above had been outstanding for some time but never permitted to be scheduled, first andagain used undue pressure, intimidation and applied duress upon the Appellant to abandon those Motions if he wished to keep the said June 16 and 20th hearing dates and not suffer more delay until September 27-28 dates, so when the Appellant gave into this pressure,intimidation and duress and said he would abandon his right to have those Motions heard, but mentioned his right to appeal due to thisduress, Justice Pickup, unjustly, unfairly and/ (s9c) vindictively, imposed a punishment to the Appellant the delay involved in the lateSeptember, 2016 dates.

(6) The Honourable Chief Justice of the Supreme Court of Nova Scotia, having been informed on April 20, 2016 by a writtensubmission from the Appellant about the above described judicial misconduct and bias of Justice Pickup, has again allowed unqualifiedstaff to intervene with respect to my submissions and again failed, as of April 26, 2016 to exercise his jurisdiction, responsibility and/orduty for “the administration of the judicial functions of the Supreme Court” by not even responding, let alone doing anything about thegross judicial misconduct and abuse of authority of his office staff.

Analysis [16] I refer first to the DAC before Justice Pickup. Courts have an inherent jurisdiction to control the proceedings before them. Oneaspect of this relates to the scheduling of hearings, including motions and trials. Courts not only have the power to control their ownprocess, but they have an obligation to control their own processes to prevent abuse of the court or parties to the litigation. One source of

the courts’ authority is the common law. Another is the Civil Procedure Rules. No matter what the basis of that authority, the Court’scapacity to control its process is necessarily incidental to preserving the rule of law. This was noted in MacMillan Bloedel Ltd. v.Simpson, (SCC), [1995] 4 S.C.R. 725 where the Court noted: [15] … courts have a core or inherent jurisdiction which is integral to their operations. The jurisdiction which forms this core cannotbe removed from the superior courts by either level of government, without amending the Constitution.

Without this core jurisdiction, s.96 could not be said either to ensure uniformity in the judicial system throughout the country or to protect the independence of thejudiciary. Furthermore, the power of superior courts to fully control their own process is, in our system where the superior court ofgeneral jurisdiction is central, essential to the maintenance of the rule of law itself… [17] In Halifax (Regional Municipality) v. Ofume, 2003 NSCA 110 it was noted that inherent jurisdiction of courts includes thecapacity of the Court to control its own process.

Scheduling is an essential aspect of the court’s exercise of power and is necessarilyincidental to maintaining the rule of law. Scheduling is also a manifestation of a court’s judicial independence (see Royal CanadianMounted Police Re:, 2008 NWTTC 5 at ¶37). This is well established in the common law. [18] The authority of courts to control their own proceedings is also articulated in various legislative instruments. For example, theJudicature Act, R.S.N.S. 1989, c. 240 and the Nova Scotia Civil Procedure Rules, which provide that: 2.03

(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: (

a) give directions for the conduct of a proceeding before the trial or hearing; (

b) when sitting as the presiding judge, direct the conduct of the trial or hearing; … [19] A review of the record makes it clear that Justice Pickup was exercising both his inherent jurisdiction and the authorityaccorded to him pursuant to CPR 2.03 in setting the dates and otherwise managing the trial. This was nothing more than a judicialexercise of administrative control. The exercise of that administrative control does not result in a substantive disposition of the JudicialReview.

What is it about the Notice of Motion for Leave to Appeal and Notice of Appeal that would warrant it being dismissed at this stage ofthe hearing? [20] I referred above to the fact that this entire action is spawned from a phone call to the office of a vet by a caretaker seekingassistance in relieving Cougie’s discomfort. The way the vet handled this call resulted in a complaint to the Association, and it is theAssociation’s handling of the complaint that is the subject of the Judicial Review.

That process must be allowed to unfold in theSupreme Court in an orderly fashion, in accordance with that Court’s process, authority and jurisdiction. The merits of Mr. Cram’scomplaints will be judged in due course. This Court will not interfere with something as basic as the Supreme Court setting hearingdates. The setting of those dates in no way impacts the merit of the complaints or the review. Scheduling, as I noted above, is anessential aspect of the Supreme Court’s inherent and statutory authority. The fact that there has been no substantive disposition by thelower court leads me to conclude that Mr.

Cram has simply seized upon the fact that Justice Pickup did something, anything, as a basisfor yet another legal step. [21] What Justice Pickup did is not something which is properly the subject of an interlocutory appeal. Appeal courts have beenreluctant to interfere with trial courts through the use of interlocutory appeals. When they do, it is usually related to interlocutorydispositions that affect the substantive rights and obligations of the parties. I refer, for example, to the situation in child custody or accesscases where appeal courts might get involved in interim custody or access arrangements.

There are other situations where courts ofappeal get involved but this is not one of them. In this case, the court below has done nothing other than set dates for the hearing ofvarious motions and the Judicial Review. I am satisfied that this is an appropriate case to take steps pursuant to both the inherentjurisdiction of the court and CPR 88.02 to prevent abuse from occurring. I am satisfied that this is an appropriate case for the dismissalof the Notice of Appeal. The appeal of the setting of dates has no chance for success as an interlocutory appeal. To allow it to continue isto allow Mr.

Cram to force the respondents to participate in an unnecessary and unwarranted step in the legal process. If this Court wereto permit interlocutory appeals on every single step of every proceeding in the courts below, then the justice system would be doomed tocollapse. It would result in a denial of justice for all but a few who are wealthy or have the ability (or even if they lack the ability) to self-represent. [22] Given the brief, but intensive bombardment by Mr.

Cram, I am satisfied that he is attempting to use the Court of Appeal, andthe Notice of Appeal now before the Court, as one more forum in which to abuse the Association and Dr. Howlett. This is not a case ofMr. Cram resorting to this Court in an effort to assert or protect his rights. [23] On the one hand, Mr. Cram challenges the credibility of the court participants including the judges in the court below and eventhe judges of the Court of Appeal. He now resorts to that system, taking every possible legal step in every imaginable type of action.

Each time he evokes a necessary response by those whom he drags into the various proceedings. It is not lost on me that Mr. Cram saysthat he has some 25 years of legal experience as a lawyer. It may be that he has been prepared to use every possible tool that he hasacquired over those many years to defeat or at least force the respondents into submission. I am satisfied that this interlocutory appeal isintended to be nothing more a means to abuse the Association and Dr. Howlett as opposed to being a means to legitimately protect hissubstantive rights. This type of abuse cannot be condoned by the courts.

Dismissal at this stage, combined with the order for costs, isthe only way to curb abuse at this stage. I will return to the issue of costs below. [24] At the end of the day, if Mr. Cram has something to complain about in relation to the various steps in the Judicial Review thenit would be more appropriate that he leave it to the completion of that Judicial Review process. For now the appeal should be dismissedas an abuse of process.

[ 25 ] On the issue of costs, I have indicated, the respondents, Dr. Howlett and the Association, were each entitled to costs of $2000.00 payable forthwith. The parties were required to attend on two separate days to respond to Mr. Cram’s appeal and for the hearing of the respondents’ motion. As I said, the appeal is abusive. It should never have been filed in the first place. The appellant is coming before this Court wasting not only judicial resources, but also the resources of the opposing parties. Those parties are dealing with a full frontal assault by Mr. Cram.

With the number of proceedings now underway, as initiated by Mr. Cram, he should be aware that if any of those proceedings are abusive in nature he may face cost consequences. If they are abusive and fail, then he must know that the targets of his abuse are not to be left to finance the cost consequences alone. The more abusive or devoid of merit, the more the costs against Mr. Cram will be. The appeal that I am dealing with should never have been filed. Repetition of this course of action may lead to costs closer to solicitor-client costs.

I will leave that to another day or another judge, to be determined based on the circumstances. Mr. Cram is, however, forewarned of possible cost consequences. [ 26 ] I ordered that the amounts are payable forthwith. The respondents alone should not be left to bear the burden of the costs of abusive applications as they attempt to work their way through what will no doubt be an expensive judicial review process below. Parties must be alive to the fact that each and every step they take in any proceeding have costs consequences.

If the steps they take are judged as intending to be abusive, as opposed to valid steps in the proceeding, then it is appropriate that courts censure that type of activity through immediate and substantive award of costs. As noted above, the Association and Dr. Howlett are each entitled to costs of $2,000.00 payable forthwith. Scanlan, J.A.