R. v. Hoyeck, 2022 NSCA 40

Nova Scotia Court of Appeal Citation: R. v. Hoyeck , 2022 NSCA 40 Date: 20220516 Docket: CAC 507287 Registry: Halifax Between: Elie Philip Hoyeck Appellant v. Her Majesty the Queen Respondent Judge: Beaton J.A. Motion Heard: May 12, 2022, in Halifax, Nova Scotia in Chambers Held: Motion granted; appeal dismissed without costs Counsel: Elie Philip Hoyeck, appellant in person Jennifer A. MacLellan, Q.C., for the respondent Caroline McInnes, Registrar of the Court Decision: [ 1 ] On June 28, 2021 Mr. Hoyeck filed with the Court a Notice of Application for Leave to Appeal and Notice of Appeal from

Summary Conviction. Over eight months later, on March 9, 2022 the Registrar of the Court made a motion pursuant to Nova Scotia Civil Procedure Rule 90.43 to dismiss the appeal. [ 2 ] The motion was originally scheduled to be heard in telechambers on April 7, 2022. On that date Justice Anne Derrick adjourned the matter at the request of Mr. Hoyeck. Appearing by telephone, he advised he was a close contact of family members who had recently tested positive for Covid. Mr.

Hoyeck also indicated he had been working out of the country and was seeking an adjournment of thirty days to permit him to pay legal counsel so he could have the assistance of a lawyer for his appeal. Justice Derrick adjourned the matter with instructions to Mr. Hoyeck to file, preferably by affidavit, an indication as to the basis upon which he would oppose the motion. [ 3 ] The motion was heard before me on May 12, 2022. Mr. Hoyeck appeared without counsel and continued to oppose the Registrar’s motion.

The respondent Crown supported the motion, asking that the appeal be dismissed. [ 4 ] At the conclusion of the hearing I indicated my decision was reserved. For the reasons that follow, the motion is granted and the appeal is dismissed. Background [ 5 ] In September 2019 Mr. Hoyeck entered guilty pleas in Provincial Court to three offences contrary to s. 74(1)(

a) of the Occupational Health and Safety Act . The sentence imposed by Judge Elizabeth Buckle on June 5, 2020 was later appealed by the Crown. Sitting as a

Summary Conviction Appeal Court (“SCAC”), Justice John Bodurtha allowed the appeal and varied Mr. Hoyeck’s sentence. It is from the SCAC decision that Mr. Hoyeck now appeals to this Court. His Notice of Appeal requests leave to appeal the sentence, and if granted, sets out five grounds of appeal and seeks reinstatement of the sentence first imposed by Judge Buckle. [ 6 ] On July 28, 2021, exactly one month after the filing of his Notice of Application for Leave to Appeal, the Registrar sent a letter to Mr. Hoyeck.

That three-page standard form document, written in plain language, contains a wealth of information and directions for parties seeking to advance an appeal. In this case, the following instructions, germane to the issue now before the Court on the motion, were included in the letter (with the dates customized to reflect Mr. Hoyeck’s file): It is important that you are 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 your Notice of Appeal was filed.

In this case the time period started to run on June 28, 2021. That means you must have your motion filed and heard no later than October 21, 2021. 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. [ 7 ] To the date of the hearing of the motion, Mr. Hoyeck had not taken any steps to advance his appeal, despite the clear direction in the Registrar’s letter. Nor had he made any efforts to contact or communicate with the Court about his appeal until he received notice of the motion. [ 8 ] On May 5, 2022, presumably in response to the Court’s direction on April 7, Mr.

Hoyeck filed a one-page handwritten document (which does not constitute evidence) indicating he has been delayed in having “funds to obtain counsel”, being “presently unemployed”. Mr. Hoyeck also notes “Covid and its problems made a big delay in my everyday life”. [ 9 ] In response to questions from the Court during oral submissions, Mr. Hoyeck advised that on May 3, 2022 he met with a lawyer to whom he provided a series of post-dated cheques. Mr. Hoyeck says that lawyer can be “on the case” in two weeks. This is the only information put forward by Mr. Hoyeck as to when he might be ready to advance the matter.

When questioned as to why he had not taken any steps to keep in contact with the Court prior to the Registrar filing the motion, Mr. Hoyeck explained he is “always reachable” and did not understand he was to contact the Court. In addition, he and his family had been in Lebanon for a two and a half month period just prior to the April 7 appearance. Analysis [ 10 ] As noted earlier, the Registrar’s motion is brought Pursuant to Rule 90.43, which provides:

(1) In this Rule 90.43 a ‘perfected appeal’ means one in which the appellant has complied with the Rules as to each of the following: (

a) the form and service of the notice of appeal; (

b) applying for a date and directions in conformity with Rule 90.25; (

c) filing the certificate of readiness in conformity with Rule 90.26; (

d) the ordering of copies of the transcript of evidence, in compliance with Rule 90.29; (

e) filing and delivery of the appeal book and of the appellant's factum.

(2) A respondent in an appeal not perfected by an appellant may make a motion to a judge to set down the appeal for hearing or, if five days notice is given to the respondent, to dismiss the appeal.

(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. [ 11 ] As the Registrar noted in her July 28, 2021 letter to Mr. Hoyeck, she is required to make the motion now before the Court if an appeal has not been perfected. While the filing of the motion is mandatory on the part of the Registrar ( Islam v. Sevgur , 2011 NSCA 114 at para. 38 ), the granting of the motion is at the discretion of the Court.

Once filed by the Registrar, the judge has two options: to dismiss the motion and provide further instructions to the appellant to move the appeal toward conclusion, or to grant the motion and dismiss the appeal ( Green v. Green , 2021 NSCA 90 at para. 9 ). [ 12 ] The test routinely applied by the Court when considering whether to grant the Registrar’s motion is that set out in Islam : [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.

[ 13 ] The above list is not intended to be exhaustive, and “the unique circumstances of each appeal will make certain factors more or less relevant” to the judge’s assessment of the motion ( C.A.V. v. L.C.M. , 2020 NSCA 72 at para. 21 ). [ 14 ] While there should be restraint exercised in denying the opportunity to appeal, the burden rests with Mr. Hoyeck to show why the motion should be dismissed ( Williams v. Nova Scotia (Health Authority) , 2021 NSCA 27 at para. 13 ; Downey v. Burroughs , 2021 NSCA 87 at para. 34 ). On that basis, I turn to whether Mr.

Hoyeck has met his burden, by application of the factors set out in Islam . [ 15 ] While Mr. Hoyeck’s proposed grounds of appeal would appear, on their face, to raise arguable issues, Mr. Hoyeck has not demonstrated any tangible, much less reasonable, basis for his failure to move the matter forward to this point. Not only has Mr. Hoyeck not done anything to advance the appeal since the end of June 2021, he has not kept in contact with the Court in any way before the Registrar was forced to make the motion to dismiss the appeal. [ 16 ] It is not at all clear when Mr.

Hoyeck will actually be in a position to advance the appeal. Furthermore, as argued by the Crown, he has not provided any information about the preparation of the necessary materials, and in particular transcript(s), which are a critical component in moving the appeal forward. Neither the Crown nor the Court can be expected to wait indefinitely. [ 17 ] There is always an inherent prejudice to a party who seeks to advance an appeal that is dismissed ( Leigh v. Belfast Mini-Mills , 2012 NSCA 67 ; An Jager v. Jager , 2019 NSCA 9 ). Nonetheless, permitting Mr.

Hoyeck to continue would be inconsistent with similar decisions which have emphasized the need for parties engaged in appeals to adhere to the Rules and directions provided by the Court. Mr. Hoyeck’s lack of progress to date is not unlike the situation circumstances in MacLean v. Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2021 NSCA 24 where the Registrar’s motion was granted: [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. [ 18 ] I recognize the prejudice to Mr. Hoyeck in granting the motion, however permitting the appeal to continue is equally prejudicial to the respondent, and to the public’s interest in having the Court dispense with matters within a reasonable time. I agree with the Crown’s observation that Mr.

Hoyeck has not prioritized the need to attend to his appeal, as evidenced in part by his absence from the country for two and a half months and only now suggesting he needs time to arrange for legal counsel. [ 19 ] The respondent is entitled to finality ( Siscoe v. Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2020 NSCA 81 at para. 21 ) . In this case, I am of the view the respondent would be equally prejudiced by allowing the appeal to continue as would Mr. Hoyeck by dismissing it. [ 20 ] Mr.

Hoyeck did not offer any information to the Court which could reassure his willingness to comply with future deadlines or requirements under the Rules. This concern was underscored at the outset of the hearing, when I inquired whether he had received a copy of the one-page written submissions filed by respondent Crown on May 10. Mr. Hoyeck stated he knew he had received the material by email, but had not read it. With respect, Mr.

Hoyeck’s casual approach to a matter pertinent to the very question as to whether the Court should permit the appeal to continue does not bode well for the possibility of his future compliance. The conclusion in Cain v. Canada (Attorney General) , 2020 NSCA 73 resonates here: [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. [emphasis added] [ 21 ] In

summary, Mr. Hoyeck has not met his burden to persuade the Court it would be contrary to the interests of justice to grant the Registrar’s motion. The motion is granted and an order will issue dismissing the appeal. [ 22 ] All parties to the appeal were responding the to Registrar’s motion; therefore, no costs will be imposed. Beaton J.A.