Williams v. Nova Scotia (Health Authority), 2021 NSCA 27

Nova Scotia Court of Appeal Citation: Williams v. Nova Scotia (Health Authority) , 2021 NSCA 27 Date: 20210315 Docket: CA 499921 Registry: Halifax Between: Jeremy Williams Appellant v. Nova Scotia Health Authority o/a East Coast Forensic Hospital Respondent Judge: Farrar, J.A.

Motion Heard: March 10, 2021, in Halifax, Nova Scotia in Telephone Chambers Held: Registrar’s Motion to Dismiss granted Counsel: Jeremey Williams, in person Kathleen Mitchell, for the respondent Caroline McInnes, Registrar of the Nova Scotia Court of Appeal Decision: [ 1 ] On March 10, 2021, this matter came before me in telephone chambers on a Registrar’s Motion to Dismiss the Appellant Jeremy Williams’ Notice of Appeal for failure to perfect the appeal. [ 2 ] The appeal arose out of the oral decision of Justice Timothy Gabriel on June 29, 2020, wherein he dismissed Mr. Williams’ application for habeas corpus .

His decision was rendered at the conclusion of the hearing. The decision has not been transcribed, but the order, issued on August 10, 2020, dismissed the application on the basis it was moot. [1] [ 3 ] In order to understand the judge’s decision some further background is necessary. At the time of filing his application, Mr. Williams was being housed in seclusion at the East Coast Forensic Hospital (ECFH). The primary relief he sought was to be transferred to the hospital’s Rehabilitation Unit. [ 4 ] At the same time Mr.

Williams was pursuing his habeas corpus application he had a parallel proceeding, involving the same subject matter, ongoing before the Nova Scotia Criminal Code Review Board constituted pursuant to

Part XX.1 of the Criminal Code . Mr. Williams’ concern, and the reason he filed the application, was he remained in seclusion and he considered the Review Board process was taking too long. [ 5 ] On the day prior to (or perhaps the day) that the application was to be heard, Mr. Williams was transferred to the Rehabilitation Unit at ECFH. Mr. Williams was no longer in seclusion, and he was where he was requesting he be put in his application. As a result, Justice Gabriel determined the matter was moot.

He also considered the Supreme Court of Nova Scotia’s earlier refusal to exercise its habeas corpus jurisdiction because of the existence of the Review Board. [ 6 ] In Williams v. East Coast Forensic Hospital , 2019 NSSC 214 , Justice Ann Smith heard a habeas corpus application filed by Mr. Williams and others in the ECFH.

The court declined to exercise its habeas corpus jurisdiction on the basis that the Review Board constituted a statutory review mechanism that provided for a review as broad as habeas corpus and no less advantageous (¶ 50). [ 7 ] Justice Gabriel was not satisfied, in light of the matter having become moot and the ongoing proceeding before the Review Board, that the court ought to exercise its jurisdiction to hear the application. [ 8 ] It is for these reasons that the judge dismissed the habeas corpus application.

[ 9 ] On August 12, 2020, Mr. Williams filed a Notice of Appeal. The grounds for appeal contained in the Notice are: 1) The decision to not hold a full hearing of my habeas corpus dilemma has left me a victim of further negligence, abuse and mistreatments, all unlawfully actions. And the decision was not based on fact of law. 2) The decision was unreasonable. 3) The decision resulted in a miscarriage of justice. [ 10 ] Mr.

Williams took no further steps with respect to his appeal until he attempted to make a Motion for Date and Directions on February 16, 2021, well-after the December 14, 2020, deadline for doing so set out in the Civil Procedure Rules (Rule 90.25(2) – 80 days from the filing of the Notice of Appeal). Coincidentally, the Registrar’s Motion to Dismiss was filed on February 16, 2021. Mr. Williams would not have been aware of the Registrar’s motion at the time he first sought to file his motion for date and directions. [ 11 ] On February 18, 2021, Mr.

Williams was informed that the motion which he had filed was incomplete. On March 1, 2021, he filed additional documentation in support of his Motion for Date and Directions. In that documentation, he indicates that he does not have the resources to fund this appeal. [ 12 ] At the hearing of this motion, Mr. Williams represented himself, the ECFH was represented by counsel, and the Registrar, Caroline McInnes, was also present. [ 13 ] I was satisfied that the Registrar had shown non-compliance with the Rules . The burden then shifted to Mr.

Williams to convince the Court that the Registrar’s motion should be denied. [ 14 ] Mr. Williams advised that he has been incarcerated at the Central Nova Scotia Correctional Facility since September 28, 2020. [ 15 ] It became apparent, when Mr. Williams was speaking, that he had a fundamental misunderstanding about the nature of an appeal. His lengthy submission focused on events, which, although not all together clear, appear to have occurred after Justice Gabriel’s decision. He also complained about the length of time it was taking the Review Board to address his issues. [ 16 ] Mr.

Williams’ submissions did nothing to explain why his appeal had merit or how he intended to meet filing deadlines and other obligations imposed on him by the Court. [ 17 ] In the often cited case of Islam v. Sevgur , 2011 NSCA 114 , Saunders, J.A., described some of the factors that inform the exercise of the discretion to dismiss the Registrar’s 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. [ 18 ] Mr.

Williams explains his failure to comply with the Rules on the fact that he does not have the funds to proceed with this appeal. Even if that is so, in these circumstances, it is insufficient to warrant additional time to perfect the appeal. [ 19 ] Mr. Williams has no plan or timeline on how he intends to perfect and proceed with his appeal. I have no confidence that he has the willingness or ability to comply with future deadlines and requirements under the Rules . More importantly, Mr. Williams is no longer in segregation; he is no longer in the ECFH; and the alleged wrong that he complains of is long-past.

If his concern is with the Review Board process there may be other remedies available to him, but at the moment it is not a writ of habeas corpus . [ 20 ] The grounds of appeal set out in the Notice of Appeal without more, do not infuse this appeal with merit. Mr. Williams has not identified a legal error in the judge’s reasoning, and I do not see any. The appeal has no reasonable chance of success. [ 21 ] I further find the continuation of this appeal is prejudicial to the respondent. During the course of his submissions, Mr.

Williams made serious unsubstantiated allegations of misconduct on the part of doctors and employees of the ECFH. He suggested he would be seeking to have this Court address those issues on the appeal. His submissions suggest that he is looking for a de novo hearing rather than an appeal of Justice Gabriel’s decision. ECFH would have to respond to a meritless appeal and potentially counter allegations not raised on the original application. It would be unfair to require it to do so.

[ 22 ] It is not in the interests of justice for an appeal with no prospect of success to be heard. I am satisfied that the Registrar’s motion ought to be granted and the appeal dismissed. However, because it is a Registrar’s motion I would not award costs to any party. Farrar, J.A.