MacLean v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2021 NSCA 24

Nova Scotia Court of Appeal Citation: MacLean v. Nova Scotia (Workers’ Compensation Appeals Tribunal) 2021 NSCA 24 Date: 20210304 Docket: CA 499473 Registry: Halifax Between: Randy (Mills) MacLean Appellant v. Trenton Works Ltd., Nova Scotia Workers’ Compensation Board, Attorney General of Nova Scotia, Nova Scotia Workers’ Compensation Appeals Tribunal Respondents Judge: Beaton J.A.

Motion Heard: February 24, 2021, in Halifax, Nova Scotia in Chambers Held: Motion granted Counsel: Randy MacLean, appellant in person Paula Arab, Q.C., for respondent WCB Alison Hickey, for respondent WCAT David Fisher, for the respondent Trenton Works Ltd. (not participating) Edward Gores, Q.C, for respondent AGNS (not participating) Caroline McInnes, Registrar of the Court of Appeal Decision: [ 1 ] The Registrar brought before me in telechambers on February 24, 2021 a properly constituted motion (the “motion”) pursuant to Civil Procedure Rule 90.43(3) and (4) seeking to dismiss this appeal.

For the reasons that follow, the motion is granted and the appeal is dismissed. [ 2 ] Mr. MacLean filed a Notice of Application for Leave to Appeal on July 27, 2020 pursuant to s. 256 of the Workers’ Compensation Act . He sought leave to appeal a June 11, 2020 decision (“the decision”) of the Commissioner Ms. Rodwell Hayes of the Nova Scotia Workers’ Compensation Appeals Tribunal (“WCAT”). (Curiously, Mr. MacLean appealed the decision despite it having allowed in part his appeal of a decision of a Workers’ Compensation Board (“WCB”) Hearing Officer dated April 23, 2020). [ 3 ] Mr.

MacLean was sent a customary letter from the Registrar of the Court dated July 31, 2020 providing him with directions on how to move his appeal forward. Those directions included the following instructions: Once you have completed the steps outlined above, you are ready to apply to get a date for your appeal hearing.

This is called making a motion for date and directions, and is heard by a judge of the Court of Appeal in chambers either in person in a courtroom on a Thursday at 10:00 a.m. or by telephone at a pre-arranged time on a Wednesday. … To make this motion for date and directions, you must file a Notice of Motion for date and directions and a Certificate of Readiness. These forms, along with an instruction sheet explaining this process, may be found on the Courts’ website: http://courts.ns.ca/Appeal_Court/NSCA_forms.htm. These forms will have to be filed with the Court and provided to the respondent(

s) at least four (4) clear, business days before the motion hearing date. Four clear days means that, assuming there are no holidays in that week, your documents will have to be filed and served the Thursday before the Thursday you want to appear in Court.

It is important that you work quickly to take the necessary steps to move your appeal along. Your motion for date and directions (to get a hearing date for your appeal) must be heard no later than eighty (80) days from the date of your Notice of Application for Leave to Appeal (Workers’ Compensation) was filed . In this case, the time period started to run on July 27, 2020. That means that you must have your motion filed and heard no later than November 23, 2020.

If the motion is not done within this time, I am required as Registrar to make a motion pursuant to Civil Procedure Rule 90.43(4) on five (5) days notice to have the appeal dismissed for non- compliance with the Rules. [ 4 ] Mr. MacLean was required to make a Motion for Date and Directions no later than November 23, 2020. That step has never been taken by him, and was the genesis for this motion, filed by the Registrar on January 25, 2021. [ 5 ] Civil Procedure Rule 90.43 states:

(3) In an appeal not perfected before 80 days from the date of the filing of the notice of appeal, or before any other time ordered by a judge, the registrar must make a motion to a judge for an order to dismiss the appeal on five days notice to the parties.

(4) A judge, on motion of a party or the registrar, may direct perfection of an appeal, set the appeal down for hearing, or, on five days notice to the parties, dismiss the appeal. (Emphasis added) The rule sets out the positive obligation on the Registrar to advance the motion. [ 6 ] During the hearing of the motion Mr. MacLean confirmed he had received both the Registrar’s July 2020 letter, and the motion with attached memorandum of the history of the appeal to date. Mr. MacLean opposed the motion, with the participating Respondents WCAT and WCB taking no position on the motion. [ 7 ] Mr.

MacLean provided the Court with a somewhat lengthy and rambling oral submission which, among other matters, referred to his extensive involvement with appeals of various WCB decisions over a number of years. He reported he has conducted some twenty-five appeals to date, which I inferred included both appeals to WCAT and appeals to this Court. [ 8 ] Once the Registrar establishes the proper basis for the motion, as was done here, the burden rests with Mr. MacLean to satisfy the Court there is good reason for his failure to take the appropriate steps to perfect his appeal. The decision of Saunders J.A. in Islam v.

Sevgur , 2011 NSCA 114 has long guided the Court regarding factors the judge should consider in exercising their discretion whether to grant the motion: [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. [38] Civil Procedure Rule 90.43(

a) is mandatory. It obliges the Registrar to enforce the Rules and chase delinquent appellants. [39] In my opinion, the Rules and the Registrar’s explicit directions concerning the perfecting of an appeal and the consequences of non-compliance ought to be strictly interpreted and applied so as to give effect to the object of the Rules which is to achieve the just, speedy, and inexpensive determination of every proceeding. (Emphasis added) [ 9 ] Several of the above-mentioned factors apply in this case. As to the reason for Mr.

MacLean’s failure to perfect his appeal to date, he submitted the reason he has not moved the matter forward is that he has been awaiting the outcome of “another decision” that “would have given me everything I wanted on this appeal.” He reported receiving the decision “I was waiting for that everything hinges on”, a week prior to the hearing of this motion. [ 10 ] With the greatest of respect to Mr. MacLean, I am not persuaded his explanation is sufficient to discharge his burden. Mr.

MacLean had a number of months to alert the Court to the implications for his appeal of any other processes in which, unbeknownst to the Court, he might have been involved. The Court was left waiting, with no indication of Mr. MacLean’s intentions during that period of time.

[ 11 ] Mr. MacLean’s lack of contact with the Court resembles the circumstances in described Walker v. Walker , 2021 NSCA 19 , another very recent decision of the Court to grant a Registrar’s motion where the appellant failed to file a motion for date and directions or otherwise keep in contact with the Court. As in that case, I take the view it was Mr. MacLean’s responsibility to move his appeal forward. If there were other matters he felt impacted his ability or intention to do so, the solution was not to ignore keeping the Court informed of those matters. [ 12 ] I understand the prejudice to Mr.

MacLean if the appeal is dismissed ( Leigh v. Belfast Mini-Mills , 2012 NSCA 67 at para. 22 ; An Jager v. Jager , 2019 NSCA 9 at para. 31 ), and the need for the exercise of restraint. That said, it would be entirely inconsistent, in the face of circumstances which mirror closely those described in Walker , supra , were I now to permit Mr. MacLean to proceed where Mr. Walker was not permitted to do so. [ 13 ] There is also the matter of the prejudice to be suffered by the Respondents if the appeal is permitted to continue. I reviewed the pages of assorted documents and paperwork Mr.

MacLean filed with the Court only after the Registrar filed this motion. They reveal Mr. MacLean has, since filing this appeal, been engaged in appealing subsequent other WCB decisions to WCAT. Counsel for WCAT advised Mr. MacLean has recently requested a copy of the audio recording of yet another WCAT hearing. (I can safely infer from the same Mr. MacLean is at least considering launching with this Court an appeal of that WCAT decision.) The Respondents are entitled to finality ( Siscoe v. Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2020 NSCA 81 at para. 21 ).

I am persuaded they would be equally prejudiced by allowing this appeal to continue ( Walker , supra , at para. 12 ). [ 14 ] I consider as well the seventh factor identified in Islam , supra , being the matter of the impact of delay on the Court, and by extension, on the public. Mr. MacLean knew over six and a half months ago what he needed to do, as set out in the Registrar’s July 2020 letter. Regretfully, he chose to do nothing.

Regardless of what other processes or procedure he may have had underway in the same period the Court needed to be able to operate efficiently, by moving this appeal forward in a timely fashion. As in Walker , supra , had Mr. MacLean reached out to the Court to inquire whether his other matters had any impact or relevance to taking the necessary steps in this appeal, it may have been easier for the Court to now justify more flexibility. [ 15 ] Finally, in Mr.

MacLean’s submissions he did not offer any information to the Court which could reassure me he has sufficient willingness to comply with any future deadlines or requirements under the Rules . The observations of Bryson J.A. in Cain v. Canada (Attorney General) , 2020 NSCA 73 resonate: [6] … Mr. Cain has not pursued his appeal. It is not a question of inadequate effort; there has been no effort. [7] Keeping in mind the considerations in Sevgur , Mr. Cain has not met the burden on him of explaining his procedural defaults, providing any assurance that they will be remedied, nor what the possible merits are now.

In sum, Mr. Cain has failed to show that it is not in the interests of justice to dismiss the appeal. [ 16 ] Similarly, I find Mr. MacLean has not persuaded the Court it would be contrary to the interests of justice to grant the motion. [ 17 ] The motion is granted and the appeal is dismissed. All parties to the appeal were responding to the Registrar’s motion and on that basis there will not be any costs awarded. Beaton J.A.