Wagner v. Andrea, 2018 NSCA 64

Nova Scotia Court of Appeal Citation: Wagner v. Andrea , 2018 NSCA 64 Date: 20180723 Docket: CA 474959 Registry: Halifax Between: Brad Wagner Appellant v. Dr. Glenn G. Andrea; Dr. Donna Davis; Dr. Miroslaw Bilski-Piotrowski; College of Physicians and Surgeons of Nova Scotia; Nova Scotia Health Authority; Dr. Gena Marshall; Dr. Smith (Cannabinoid Medical Center); Dr. Stephen R. Workman; Dr.

Alexander Clark; Health Canada; Province of Nova Scotia; Halifax Police; Halifax Regional Municipality; Minister of Social Services; Nova Scotia Human Rights Commission; Provincial Court, Spring Garden Road; Her Majesty the Queen in Right of the Province of Nova Scotia as Represented by the Minister of Community Services Kelly Regan; Her Majesty the Queen in Right of the Province of Nova Scotia as Represented by the Minister of Health the Honourable Jan Philpott; Her Majesty the Queen in Right of the Province of Nova Scotia as Represented by the Minister of Justice and Attorney General the Honourable Mark Furey; Her Majesty the Queen in Right of the Province of Nova Scotia as Represented by the Minister of Health and Wellness the Honourable Randey Delorey; Jansen Inc., Jannsen Canada; Eli Lilly Canada Inc.; Linda Corkum Respondents Judge: Beveridge, J.A.

Motion Heard: July 12, 2018, in Halifax, Nova Scotia in Chambers Held: Motions granted Counsel: Brad Wagner, appellant in person Brian Downie, Q.C. and Sian Laing for the respondent physicians Ryan Baxter on behalf of Daniel Wallace, for the College of Physicians and Surgeons of Nova Scotia Duane Eddy for the Attorney General of Nova Scotia, Minister of Community Services and Minister of Health and Wellness Justin Adams and Thomas Morehouse for the Judges of the Provincial and Family Court of Nova Scotia Sarah Drodge for Health Canada (Attorney General of Canada) Scott Campbell and Sara Nicholson for the Nova Scotia Health Authority Decision: INTRODUCTION [ 1 ] Mr.

Wagner started a legal campaign to seek remedies against five named defendants. One action grew to three. There were multiple amendments to the claims. In addition, the number of defendants expanded to twenty-six. [ 2 ] Mr. Wagner sought numerous remedies.

These included: injunctions; special and general damage awards into the millions for personal harm; $750 billion for a class of people who have cognitive difficulty and are labelled with mental illness terms and prescribed gene disrupting antipsychotic and anti-depressant drugs; and, $500 billion (U.S.) for crimes against humanity committed by the Province of Nova Scotia, the Government of Canada and the OPEC consortium. [ 3 ] The Attorney Generals of Nova Scotia and Canada, along with the judges of the Provincial and Family Courts, the Nova Scotia Health Authority and individually named physicians filed motions: for

summary judgment on the pleadings; to strike the

pleadings as an abuse of process; and, to enjoin Mr. Wagner from filing any further proceedings without leave of the Court. [ 4 ] The Honourable Justice Richard C. Coughlan heard the motions in Special Chambers on March 7, 2018 and delivered oral reasons (unreported) that granted

summary judgment on the pleadings, struck the actions as an abuse of process and enjoined Mr. Wagner from filing any further proceedings against the defendants. Orders were subsequently issued on March 23, 2018 that dismissed the actions against all defendants. [ 5 ] Mr. Wagner filed a Notice of Appeal with the Registrar on March 27, 2018.

I will describe later who he named as respondents and his difficulties serving them with his Notice of Appeal and later filings. [ 6 ] Six of the respondents filed motions to set aside the Notice of Appeal because it failed to disclose any ground for an appeal and to dismiss the appeal as not being in compliance with the Civil Procedure Rules . I heard these motions on July 12, 2018. [ 7 ] The Notice of Appeal advances seven grounds of appeal. They are:

(1) Sharp practice in dismissal of claim #466431 on

summary judgement without consideration of the submitted brief, and further I had not had time to finish affidavits essential understanding [sic] the details of the Claim, and further there is another claim adjustment required in this complicated issue to properly meet the requirements of Justice.

(2) Arbitrary denial of natural justice

(3) Refusal to accommodate disability (brain damage) in refusal to let me read salient points of brief into record and understand any of the actual Claim statement #466431

(4) Refusal of right to remedy

(5) Denial of required mandamus on Convention of human rights for persons with disability

(6) The sharpe [ sic ] practice was further human right violation as I have stated brain damage requiring accommodation. And I need to read my brief into the record and was denied and ruled against arbitrarily without full understanding of the claim.

(7) Failure to address any of the necessary issues including addressing the market restriction, personal settlement, and related class issues, and OPEC which are immediate issues of the Violation of the Supremacy of God, Genocide, and ongoing global mass extinction. [ 8 ] The order he requests on the appeal is: The appellant says that the should allow the appeal and that the judgment appealed from be [ full hearing and permission to submit affidavits under preparation ] and [full hearing and allowance of necessary court time to present affidavits and Claim, permission for a further amendment of OPEC related issue and Mandamus of over all issues, immediate assistance by federal prosecution office/services in urgent assistance required to protect our population and global genome]. [Emphasis in original] [ 9 ] Before examining the merits of the respondents’ motions, it is useful to set out a brief history of the proceedings in this Court.

PROCEEDINGS IN THE COURT OF APPEAL [ 10 ] The Notice of Appeal named 44 respondents. While there is some duplication, the Notice purported to include entities that were not parties to any of the proceedings in the Supreme Court. [ 11 ] Mr. Wagner filed 15 affidavits and a Notice of Motion for Date and Directions returnable on April 19, 2018. The Registrar interpreted the filing of affidavits as an attempt to adduce fresh evidence. The affidavits were accepted conditionally. Information was provided to the appellant about how to file a motion to adduce fresh evidence. [ 12 ] Mr.

Wagner did not appear on April 19, 2018. One of the respondents learned of the appeal and motion while searching the civil index on an unrelated matter. Other respondents were notified of the existence of appeal proceedings. As a consequence, several respondents appeared in Chambers on April 19, 2018 before my colleague, Justice Fichaud. [ 13 ] Justice Fichaud issued an order directing Mr. Wagner to serve each respondent with the Notice of Appeal and the affidavits he had filed with the Registrar. May 17, 2018 was the deadline to complete service and to file proof of service with the Registrar. [ 14 ] Mr.

Wagner filed a motion to adduce fresh evidence at the hearing of his appeal. He requested the motion be heard on June 7, 2018. Various affidavits were filed by the appellant. There is no need to catalogue them or describe them in detail. One complains of police brutality. Another proclaims he is “the soul of the Sun, King Yeshua and he has come to cultivate the Earth and establish a kingdom of heaven on Earth”. [ 15 ] On June 7, 2018, I ordered: the style of cause be amended to include as respondents only the defendants named in the proceedings in the Supreme Court; Mr.

Wagner serve each properly named respondent not yet served with the Notice of Appeal and the various affidavits filed with the Registrar to date; and, the parties to return in Chambers on July 12, 2018 to hear an update on the appellant’s service and hear contemplated motions by one or more of the respondents to strike or dismiss the appeal. [ 16 ] Mr. Wagner then moved for an order to permit service of the respondents by electronic means. His affidavit in support explained that he had no income and the only way he could effect service would be by email.

I heard the motion on June 21, 2018. [ 17 ] Counsel for six groups of the respondents consented to accept service by email delivery of PDF scans. Mr. Wagner agreed. I

granted the appellant permission to serve the respondents by email delivery of PDF scans. [ 18 ] Between June 29, 2018 and July 5, 2018, six sets of respondents filed and served motions returnable July 12, 2018. The Respondent Physicians and the Attorney General of Canada filed briefs and books of authorities.

They sought orders setting aside the Notice of Appeal for failing to disclose any ground of appeal pursuant to Civil Procedure Rule 90.40(1) or dismissal of the appeal under Rule 90.40(2) for failure to comply with Rule 90 and Court orders. [ 19 ] The remaining four participating respondents adopted these submissions. The Attorney General of Nova Scotia and the Provincial and Family Court Judges also suggested that the appeal should be dismissed as an abuse of process.

THE MOTIONS RETURNABLE JULY 12, 2018 [ 20 ] The Judicature Act , R.S.N.S. 1989, c. 240, as amended, gives a disappointed litigant the right to try to challenge a decision made by a Supreme Court Justice. But as my colleague Justice Saunders pointed out in Doncaster v. Chignecto-Central Regional School Board , 2013 NSCA 59 , no right is absolute. [ 21 ] Parties to an appeal must abide by Civil Procedure Rule 90 that sets time lines and requirements about form and content for documents to prosecute an appeal.

They are designed to ensure fair process for all litigants. [ 22 ] If the Rules are not followed, the Registrar or a respondent, can ask a judge in Chambers for a remedy to cure the deficiency, or to dismiss the appeal. I need not canvass the various sources in Rule 90 for the discretionary powers given to a single judge to manage appeal proceedings. [ 23 ] The respondents focus on CPR 90.40. It provides as follows: 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.

(2) A judge of the Court of Appeal may dismiss an appeal if the appeal is not conducted in compliance with this Rule 90 for any reason, such as, failing to comply with Rules respecting any of the following: (

a) the form of the notice of appeal, (

b) notifying a person of the appeal, (

c) making a motion for directions, (

d) setting the appeal down for a hearing, (

e) filing the certificate of readiness. [ 24 ] The respondents’ briefs relied on a number of Chambers decisions that have addressed the discretion to summarily set aside or dismiss a Notice of Appeal under this rule: Luke v. Luke , 2009 NSCA 23 ; Fares v. CIBC Bank , 2009 NSCA 124 ; Cragg v. Eisener, 2012 NSCA 38 ; MacDonald v. Nova Scotia (Attorney General), 2012 NSCA 64 ; Raymond v. Brauer, 2015 NSCA 106 ; and most recently, Kasheke v. Canada (Attorney General) , 2018 NSCA 2 . [ 25 ] The principles that inform this power are not in dispute.

The requirement in Rule 90.40(1) to disclose “any ground of appeal” demands more than a bare allegation of legal error. An appellant must identify a sustainable ground of appeal. This requires some particularization of the alleged error ( Fares v. CIBC ). [ 26 ] Self-represented appellants are given considerable assistance and leeway. An appeal should not be set aside due to clumsy or inarticulate grounds of appeal if an amendment can cure the deficiency ( MacDonald v. AGNS ).

But self-represented litigants are not exempt from the requirement to articulate grounds of appeal that could support an appeal. [ 27 ] A single judge cannot set aside a notice of appeal because he or she feels the grounds of appeal lack merit. That is an issue for a panel pursuant to Rule 90.44 ( Luke v. Luke ; Cragg v. Eisenor ). [ 28 ] Rules 90.40 and 90.44 do overlap. A notice of appeal that does not identify a sustainable ground of appeal is one that lacks merit.

But even if a Notice of Appeal identifies a sustainable ground of appeal, this does not preclude a panel concluding it should be set aside or dismissed under Rule 90.44 as frivolous, vexatious or without merit. [ 29 ] Many of these principles were summarized by Bourgeois J.A. in Raymond v.

Brauer : [13] From the above, I distill the following principles: • If there is a sustainable ground of appeal, the appeal should not be dismissed by a single judge in Chambers, even in the face of questionable merit; • A ground of appeal is unsustainable if there is no possibility in law that it could be found to be meritorious on appeal; • A sustainable ground of appeal must not be a bare assertion of an error of law or jurisdiction, but rather, requires particulars of the error alleged; and • An appeal should not be dismissed if an amendment could cure deficiencies in the drafting of the grounds.

[ 30 ] The respondents filed detailed submissions that the Notice of Appeal failed to set out a sustainable ground of appeal. To put their submissions into context, I will again quote the grounds of appeal:

(1) Sharp practice in dismissal of claim #466431 on

summary judgement without consideration of the submitted brief, and further I had not had time to finish affidavits essential understanding [ sic ] the details of the Claim, and further there is another claim adjustment required in this complicated issue to properly meet the requirements of Justice.

(2) Arbitrary denial of natural justice

(3) Refusal to accommodate disability (brain damage) in refusal to let me read salient points of brief into record and understand any of the actual Claim statement #466431

(4) Refusal of right to remedy

(5) Denial of required mandamus on Convention of human rights for persons with disability

(6) The sharpe [ sic ] practice was further human right violation as I have stated brain damage requiring accommodation. And I need to read my brief into the record and was denied and ruled against arbitrarily without full understanding of the claim.

(7) Failure to address any of the necessary issues including addressing the market restriction, personal settlement, and related class issues, and OPEC which are immediate issues of the Violation of the Supremacy of God, Genocide, and ongoing global mass extinction. [ 31 ] The respondents say ground (5) cannot be a sustainable ground of appeal. Justice Coughlan struck the pleadings as not disclosing a sustainable cause of action. There does not appear to have been any proceedings by the appellant seeking the remedy of mandamus.

In addition, “mandamus on Convention of human rights” makes no sense. [ 32 ] Grounds (4) and (7) contain bare allegations. Ground (4) refers to a “Refusal of right to remedy”; ground (7), that Justice Coughlan failed to address issues of “Violation of the Supremacy of God, Genocide, and ongoing global mass extinction”.

What remedy was refused and how Coughlan J. erred is never explained. [ 33 ] The only issues before the motion judge were whether the Statement of Claim disclosed a reasonable cause of action or constituted an abuse of process. [ 34 ] Grounds (2), (3), and (6) are all complaints that Justice Coughlan precluded the appellant from reading his brief “into the record”. The respondents say Justice Coughlan pointed out to the appellant during the hearing that his brief was already part of the record.

There was, therefore, no need for him to read “into the record” his fifty-page, single-spaced brief. [ 35 ] Ground (1) refers to the appellant not having had enough time to finish affidavits essential to understanding his claim. The respondents say this is not a sustainable ground of appeal because the motion to strike must be determined on the pleadings alone. Affidavits for or against such a motion are inadmissible ( Rule 13.03(3)). [ 36 ] I accept the respondents’ submissions. The Notice of Appeal fails to disclose any sustainable ground for an appeal. I am reinforced in my conclusion by two factors.

The first is the order the appellant seeks at the conclusion of the appeal. The second is the appellant’s written and oral submissions on this motion. [ 37 ] The respondents point to the appellant’s description of the remedy he is seeking as cogent evidence that the appeal should be dismissed under Rule 90.40(2) as failing to include a concise description of the order sought as required by Rule 90.06(1)(c). There is some force in the respondents’ submissions.

But the remedy the appellant says he wants also demonstrates the vacuity of this appeal. [ 38 ] The remedy requested is: The appellant says that the should allow the appeal and that the judgment appealed from be [ full hearing and permission to submit affidavits under preparation ] and [full hearing and allowance of necessary court time to present affidavits and Claim, permission for a further amendment of OPEC related issue and Mandamus of over all issues, immediate assistance by federal prosecution office/services in urgent assistance required to protect our population and global genome]. [ 39 ] The Court has no power to order “Mandamus of over all issues” or require the immediate assistance by federal prosecution office/services to “protect our population and global genome”. [ 40 ] Faced with the respondents’ submissions, the appellant filed no brief.

Instead, he filed two affidavits on June 29, 2018. One complained of his treatment by the Human Rights Commission.

The other complained of government incompetence and his consequent right to put different governments into place: 7 I claim due to these incompetent acts of various levels of the Governments of the Common Wealth of Nations, and the sustained ethnic cleansing and racial genocide committed by the Queens Corporations and their minions, to be the rightful inheritance of the Domain of the Common Wealth, and all bodies and soul bodies, and surface, and resource, and incoming sunlight within the Common Wealth of Nations, and further the Earth, to direct in Kingdom of Heaven on Earth, I claim to have the right to decide that each Nation in this Kingdom shall be governed by 5 elected women of the people’s choice, and by my knowledge of what is important to myself and my Soul of the Sun, and by the Holly Ghost within me. [ 41 ] On July 5, 2018, he filed documents purporting to be a motion for

summary judgment on the pleadings in the Court of Appeal. On July 9, 2018, he filed an affidavit “on dark kabala. Satanist influence in Nova Scotia”. Finally, on July 10, 2018, a request for judicial mediation of his claims. [ 42 ] At the hearing of the respondents’ motions, the appellant confirmed that his complaint of denial of natural justice was Justice

Coughlan’s refusal to permit him to read his brief. Mr. Wagner started his oral submissions with excerpts from that brief: Mr. Wagner: I wish to, again, say that my brief wasn’t considered. Now, my reasons for going to the Federal Court, I’m going to read into the record here in case I need a copy of this. So the original brief stated, common law violations, contributory negligence, Constitution of Canada violations, Charter of Rights and Freedoms violations on numerous articles, UN convention of rights and freedoms for persons with disabilities, completely not recognized at all.

UN convention rights of the child. Not recognized. So this in in relation to these injurious falsehoods of psychiatric medicine and are harms to the genome. The fact that they should turn off the genome and they are left in that state in the confirmation, unholy state locked in place, so the gene can’t be accessed, and therefore they cause brain cell death, body cell death, body wide cytopenia to apoptosis. This is well documented in this brief. If you, if anyone read this, if Judge Hubley [sic] read it, all the pre-, all the proof is in this brief about the documents.

Obviously the lawyers and the judges don’t care about human health and safety. This is an emergency, so I’ve indicated the Emergency, I’ve invoked the Emergency Measures Act in the Federal Court, and I, it’s in here, and it’s in these other documents, the Emergency Measures Act, so if I can’t get you to respect the emergency situation that these patients face, they’re being toxified, then obviously you and them don’t care about human life and health and safety.

So, we also have a, violations of UN declaration on the human genome and human rights and many other violations of the Competition Act , Food and Drug Act, crimes against humanity. Criminal Code of Canada violations. Involuntary Psychiatric Treatment Act. (Inaudible) mandamus. And the Hospital Act. (inaudible) mandamus to the standards of the CRPD. So, I understand that you don’t want to consider anything but a bunch of babble on by a bunch of lawyers on your Civil Procedure Rules. Well, you know what? The Civil Procedure Rules are nothing compared to human rights and safety and health and safety.

So, we need to respect health and safety and human biology and planetary eco-systems and a genome of life on earth. And not your OPEC written Civil Procedure Rules meant to deny justice. So, we’re going to the federal court and after that we’re going to the privy council and united nations, the international criminal court… [ 43 ] Mr. Wagner’s real complaint is that Justice Coughlan was not persuaded by his brief that the Statement of Claim disclosed a cause of action or was otherwise not an abuse of process.

As reiterated recently by Derrick J.A., the fact that an appellate disagrees with a lower court’s outcome is not a valid ground of appeal: [25] Rev. Dr. Kasheke’s Notice of Appeal is focused on a re-litigation before the Court of Appeal of the claims he was unsuccessful in advancing in the Nova Scotia Supreme Court. His Notice of Appeal is a reincarnation of his Statement of Claim. It contains nothing that can be interpreted or salvaged as a sustainable ground of appeal. As stated by Scanlan, J.A. in Raymond v.

Brauer , 2016 NSCA 36 , “One party, not liking the outcome, has never been in and of itself a valid ground of appeal.” (para. 10) Kasheke v. Canada (Attorney General) , 2018 NSCA 2 [ 44 ] During the hearing, I repeatedly asked Mr. Wagner for his submissions on the grounds of appeal. At one point I asked him why the respondents were wrong in asking me to set aside his Notice of Appeal or dismiss it for the reasons they had identified. His response was: Mr. Wagner: Why they’re wrong? Because they’re ignorant in every aspect of it. There’s merit in upholding the Charter of Human Rights and Freedoms.

There’s merit in allowing the Charter of Human Rights and Freedoms to be informed by the CRPD which it was supposed to be upheld and, and made (inaudible) all throughout the country since 2010. You know that. Since 2010 the CRPD was supposed to be in force in the province and the country. And you’re negligent. Your province and this country is negligent and indemnifiable and will supply this population (inaudible) with compensation for violating their human rights and minding the rights since 2010. That’s one reason. Another reason is basic violation of multiple aspects of the Charter of Rights and Freedoms.

Another reason is these many aspects of violation of the supremacy of God. Violation of… Okay, violation of the supremacy of God. What joins…what (inaudible) together with love is DNA through sex reproduction. Okay. So when people combine it’s with love. And that love is recorded in DNA and bound together. When you turn that genome off, you’re rendering asunder what God has joined together. And that’s a common law principle. That no man shall rend asunder what God has joined together. Okay. [ 45 ] I am satisfied that I have no choice but to set aside the Notice of Appeal.

This is not a case where a self-represented litigant has stumbled because of lack of training or ability to articulate a sustainable ground of appeal. Mr. Wagner simply does not agree that he should not be permitted to pursue by litigation his perception of wrongdoing by various individuals and entities. [ 46 ] Mr. Wagner did not seek to amend, clarify or otherwise explain how his grounds of appeal disclose a sustainable ground.

I fail to see how they might be amended. [ 47 ] I need not address the respondents’ request that I dismiss the appeal under Rule 90.40(2) for non-compliance respect to form, service and failure to comply with directions. That is not say there is not considerable merit in their submissions. [ 48 ] The respondents’ motions to set aside the Notice of Appeal is granted. No costs were requested. None are ordered. Beveridge, J.A.