Power v. Cape Breton Victoria Regional School Board, 2022 NSCA 43

Nova Scotia Court of Appeal Citation: Power v. Cape Breton Victoria Regional School Board , 2022 NSCA 43 Date: 20220526 Docket: CA 505153 Registry: Halifax Between: Tracy Colette Power Appellant v. Cape Breton Victoria Regional School Board, Attorney General of Nova Scotia, the Workers’ Compensation Board of Nova Scotia, and the Workers’ Compensation Appeals Tribunal Respondents Judge: Beaton J.A.

Motion Heard: May 19, 2022, in Halifax, Nova Scotia in Chambers Held: Motion granted; appeal dismissed without costs Counsel: Tracy Colette Power, appellant by telephone Paula Arab QC, for the respondent Workers’ Compensation Board of Nova Scotia; Alexander MacIntosh for the respondent Workers’ Compensation Appeals Tribunal Caroline McInnes, Registrar Decision: [ 1 ] On May 3, 2022 the Registrar of the Nova Scotia Court of Appeal filed a motion pursuant to Nova Scotia Civil Procedure Rule 90.43(3) seeking to dismiss the appeal commenced by Ms. Power. The motion was heard May 19, 2022.

The appellant opposed the motion and the respondents, the Workers’ Compensation Board of Nova Scotia (“WCB”) and the Workers’ Compensation Appeals Tribunal (“WCAT”) took no position. At the conclusion of the hearing, I reserved my decision. For the reasons that follow, the motion is granted and the appeal is dismissed. Background [ 2 ] Ms. Power filed a Notice of Application for Leave to Appeal (Workers’ Compensation) on March 25, 2021. She seeks leave to appeal a decision of WCAT dated January 27, 2021. [ 3 ] On March 29, 2021 the Registrar sent Ms.

Power the customary letter containing instructions and “the next steps you must take as the appellant in order to have your appeal heard”. The letter also indicated various resources the appellant could access to assist in her preparations. In particular, and of import in relation to the motion before me, the Registrar directed: 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 your Notice of Application for Leave to Appeal (Workers’ Compensation) was filed . In this case, the time period start to run on March 25, 2021. That means that you must have your motion filed and heard no later than July 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. [ 4 ] There is no dispute as to the events that unfolded in the ensuing months. Ms. Power did not adhere to the above noted instructions. There was no further activity in relation to the appeal until, not unlike the present motion, the Registrar filed a motion to dismiss pursuant to Rule 90.43 on October 1, 2021. That motion was heard by the presiding chambers Justice on November 3, 2021.

It was adjourned to provide Ms. Power an opportunity to take certain steps toward advancing her appeal. On November 24, 2021 the Justice dismissed the Registrar’s motion, set the appeal for hearing on March 17, 2022 and provided Ms. Power with filing deadlines of January 5, 2022 for her appeal book and January 19, 2022 for her factum.

[ 5 ] On January 4, 2022, Ms. Power filed a motion for an extension of time to file her materials and an adjournment of the appeal hearing. That motion was granted on January 19, 2022 but the assignment of new dates was further adjourned to February 2, 2022 to accommodate Ms. Power’s desire to hear from the Workers Advisor Program whether they would assist her with her appeal. [ 6 ] On February 2, 2022, Ms. Power, still self-represented, was instructed by the chambers Justice to file her appeal book on April 6, 2022 and her factum on April 15, 2022.

The appeal hearing was scheduled for June 14, 2022. [ 7 ] The Registrar wrote to Ms. Power on April 11, 2022 to inquire as to the whereabouts of the overdue appeal book and the soon- due factum. She included, once again, information on how to file a motion to seek a further filing extension. No motion was forthcoming. [ 8 ] My review of the Court’s file satisfies me the only time Ms. Power has taken any initiative in relation to her appeal since she filed it, has been when prompted by communications initiated by the Registrar. Three times deadlines for filing materials have been provided to Ms.

Power, and none of them have been met. Twice a hearing date has been set, with the most recent date of June 14, 2022 now in jeopardy because the court has no materials from Ms. Power, and therefore no ability to prepare for the hearing. [ 9 ] The Registrar’s motion to dismiss is made pursuant to Civil Procedure 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. Analysis [ 10 ] At the hearing of the Registrar’s motion, Ms. Power reported she has been hampered in advancing her appeal due to:

i) a lack of legal counsel to assist her; ii) the ill health of her partner; iii) her own ill health; and iv) her lack of a vehicle, going to her mobility and ability to retain counsel. I note none of these reasons were connected to the absence of any motion by Ms. Power to extend her filing dates; rather, they were cited as reasons for not having perfected her appeal. [ 11 ] The burden rests with Ms. Power to persuade me on a balance of probabilities why the Registrar’s 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 ). Restraint should be exercised in denying the opportunity to appeal ( Leigh v. Belfast Mini-Mills , 2012 NSCA 67 at para. 22 ). [ 12 ] Over the last decade, when assessing such a motion the Court has, almost without exception, been guided by the considerations set out in Islam v. Sevgur , 2011 NSCA 114 : [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 ] My options are to dismiss the motion and provide further direction to the appellant (as was done in the first Registrar’s motion to dismiss made on this file), or to grant the motion and dismiss the appeal ( Green v.

Green , 2021 NSCA 90 at para. 9 ). While the list of factors provided in Islam v. Sevgur is not intended to be exhaustive, several are applicable here. [ 14 ] As to Ms. Power’s reason for her default, her explanation does not excuse the lack of progress to date. Unfortunately, it is hardly novel to hear a self-represented party express frustration over an inability to secure legal counsel. Ms. Power reported she last tried to secure representation in January of this year, which was before the most recent slate of deadlines was assigned on February 2, 2022. Ms.

Power did not provide any new information regarding any efforts to secure counsel which would link to her most recent default. [ 15 ] Ms. Power’s somewhat vague reference to her health challenges, and those of her partner, did not explain how those matters would inform moving the appeal forward. When I inquired as to when she thought she would be in a position to advance the matter, she replied “Whenever I can find a lawyer who will take it on”. When asked to identify a timeline, her reply was “Maybe by the fall”. This illustrates the uncertainty on the part of Ms.

Power herself about moving the matter along. [ 16 ] As to whether Ms. Power has a willingness and ability to comply with future deadlines and requirements, I am not confident she will be able do so. Unfortunately, latitude already shown to Ms. Power in having re-assigned deadlines has not improved her responsiveness to them. I do not suggest any ill-motive, such as an attempt to delay the outcome of the decision under appeal. Rather, I have formed the impression Ms.

Power is simply unable to conjure a clear path to continue, as evidenced in her comment that she “sat down and went through all my files and I don’t even understand the words in them”. Without assistance she may not be able to proceed, but she has not taken any recent steps to secure that assistance, nor has she kept the Court apprised of efforts until prompted by this second Registrar’s motion. This leads me to the next factor, the interest in expeditious appeals. [ 17 ] Ms.

Power’s inability to meet any deadlines imposed to date not only does not bode well for future compliance, it also comes at a cost to the court and the public. The Court, litigants and the public have an interest in ensuring cases proceed efficiently, or the Rules designed to promote that become pointless ( MacDonald v. Nova Scotia (Worker’s Compensation Appeal Tribunal ), 2010 NSCA 23 at para. 31 ; S.S v. D.S., 2011 NSCA 14 at para 29 . As Islam v.

Sevgur instructs: [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. [ 18 ] Recognizing the inherent prejudice to Ms. Power in dismissing her appeal, it must be balanced against the prejudice to the respondents in allowing the matter to stall, potentially indefinitely, or until “the fall” at the very earliest.

Given the considerable amount of time that has already passed, at this point the balance tips in favour of the respondents, who are entitled to finality ( Siscoe v. Nova Scotia (Workers’ Compensation Appeals Tribunal ), 2020 NSCA 81 at para. 21 ). [ 19 ] I am not persuaded it would be contrary to the interests of the administration of justice to grant the Registrar’s motion. Applying the strict

interpretation analysis referred to in Islam v. Sevgur , I conclude Ms. Power has not met the burden to persuade me to dismiss the motion. The Registrar’s motion is granted and an order will issue dismissing the appeal. [ 20 ] All parties to the appeal were responding to the Registrar’s motion; no costs were sought and none shall be imposed. Beaton J.A.