Sansome v. Industrial Alliance Insurance and Financial Services Inc.; Sansome v. Hancock

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: Sansome v. Industrial Alliance Insurance and Financial Services Inc.; Sansome v. Hancock, 2023 NLCA 9 Date: April 4, 2023 Docket Number: 202101H0035 and 202101H0036 BETWEEN: GARRY SANSOME APPLICANT/APPELLANT AND: INDUSTRIAL ALLIANCE INSURANCE AND FINANCIAL SERVICES INC. RESPONDENT AND: BETWEEN: GARRY SANSOME APPLICANT/APPELLANT AND: DEON HANCOCK RESPONDENT Coram: Knickle J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 201904G0098 and 2012 04G 0051 (2021 NLSC 58 and 2021 NLSC 59) Page 2 Application Heard: April 4, 2023 Judgment Rendered (Orally): April 4, 2023 Memorandum of Disposition Filed: April 5, 2023 Counsel for the Appellant: Self-Represented Counsel for Industrial Alliance Insurance and Financial Services Inc.: No Appearance Counsel for Deon Hancock: No Appearance Counsel for the Attorney General on the Application: David L. Hearn and Chelsey Buggie Authorities Cited: CASES CITED: Al-Haidari v. Memorial University of Newfoundland, 2022 NLCA 58; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. STATUTES CONSIDERED: Criminal Code, section 684. RULES CONSIDERED: Court of Appeal Rules, NLR 38/16, rule 40. MEMORANDUM OF DISPOSITION Knickle J.A.: [1] Garry Sansome has filed two appeals with this Court: 202101H0035 and 202101H0036. The respondents in both matters have filed applications to have both appeals dismissed on the basis that they are without merit. Pending the hearing of these applications, Mr. Sansome has made application to this Court to have the Attorney General fund counsel on his behalf. [2] For the reasons that follow Mr. Sansome’s application for state funded counsel is dismissed. [3] This court recently addressed the legal principles governing appointment of counsel in Al-Haidari v. Memorial University of Newfoundland, 2022 NLCA Page 3 58. Justice Goodridge concisely stated the limits on the Court’s authority to appoint counsel. In the context of private civil litigation, there is no authority at common law, and such appointments are exceptional. At paragraph 6, Justice Goodridge explained: There is no legal rule or general principle supporting court ordered appointment of state-funded counsel, at either trial or appeal, for an individual in pursuit of private litigation seeking damages. In Hennessey v. Canada, 2017 NLCA 23, 1 CANLR 586, at para. 7, Green C.J.N.L. observed that applications seeking appointment of state- funded counsel, particularly on the civil side, have largely failed since they involve imposing positive obligations on governments to expend scarce resources. In British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 SCR 873, at para. 21, the Supreme Court of Canada noted, “general access to legal services is not a currently recognized aspect of the rule of law”. [4] In the absence of a constitutional basis, or statutory authority, there is generally no authority to appoint counsel. This is because, as a general principle, the courts have no authority to direct how the state disburses funds as a matter of the separation of powers between the executive and the courts. As stated in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at paragraph 81: Allowing superior and statutory court judges to direct an Attorney General as to how to expend funds on the administration of justice, in the absence of a constitutional challenge or statutory authority, is incompatible with the different roles, responsibilities and institutional capacities assigned to trial judges, legislators and the executive in our parliamentary democracy. [5] Where counsel have been appointed on a constitutional basis, typically the circumstances have involved adversarial proceedings between the individual and the state. For example, in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, the Supreme Court recognized that in proceedings where the state intervened in child custody, which affected the parent’s section 7 interest under the Charter, it was necessary to appoint counsel to ensure a fair hearing. The Court stated at paragraph 2: … When government action triggers a hearing in which the interests protected by s. 7 of the Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair. In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel... Page 4 [6] In Al-Haidari, Justice Goodridge observed, appointment of state funded counsel for an appeal is even rarer, and generally limited to criminal matters, or, again where the state is involved in the constitutional interests of the individual. For example, under section 684 of the Criminal Code, the Court of Appeal may appoint counsel in a criminal matter, where the necessary criteria are met. [7] In these circumstances as per Criminal Lawyers’ Association of Ontario, there is neither a constitutional nor legislative basis to appoint counsel for Mr. Sansome for the hearing of the application to strike the appeals. [8] Firstly, the complaint involves principles of contract and tort as between private individuals. No state actor is involved. There is nothing in this private litigation that raises issues concerning the constitutional protections afforded to Mr. Sansome as between he and the state. [9] Nor is there a legislative basis to appoint counsel. The provincial government has legislated the means by which state funded counsel is appointed in this province through the Legal Aid Commission, if the necessary criteria are met. Mr. Sansome asserts that he was denied funding through this programme. [10] Even if the legal authority existed, the circumstances in the present case would not meet the requirements of the Court of Appeal Rules, NLR 38/16, under Rule 40. Rule 40 prescribes the considerations that are relevant to determining whether counsel should be appointed by the Attorney General. [11] Rule 40 states that where it is asserted that it may be necessary to appoint counsel “by virtue of a legal rule or principle”, neither of which have been established here, a number of factors may be considered before so doing. Rule 40(2) lists the following factors to be considered: (2) Factors the Court may consider in an application under subsection (1) include: (a) the complexity of the legal issues in the appeal; (b) the potential effect of the appeal on the development of the law; (c) the ability of the applicant to provide written and oral submissions; (d) the availability of legal aid under a provincial plan providing legal aid or similar services; Page 5 (e) whether the applicant has requested the assistance of a solicitor who would agree to provide assistance without financial compensation, including for a limited purpose as authorized under rule 24; and (f) financial hardship the applicant would suffer if required to pay for a solicitor to provide assistance, including for a limited purpose as authorized under rule 24. [12] Considering the above factors, appointment of counsel is not warranted. The litigation is not complex. Mr. Sansome’s main complaint in this Court was that he was not afforded an adjournment by the trial judge, and that he has been wronged by the defendants and these wrongs caused him financial losses. At trial, the trial judge dismissed his complaint, finding there was no genuine issue for trial. Mr. Sansome appeals that decision. [13] Whether the trial judge should have granted an adjournment is not a complex legal issue, but a discretionary decision, which trial judges address on a daily basis. Similarly, whether there was a genuine issue for trial, in the circumstances, was not a legally complex decision. In the application to strike his appeals, the question will be whether there is merit to Mr. Sansome’s appeal of the trial judge’s decision respecting the above questions. [14] While it is preferable that parties have counsel at trial, Mr. Sansome represented himself and explained his position both at trial and in this Court. He has been able to respond to requests of the Court. I am satisfied that Mr. Sansome is capable of representing himself in the proceedings. He has filed his factum on the appeal. I am also satisfied he can provide written and oral submissions. [15] Having said that, Mr. Sansome has filed several documents, including correspondence from his attending physician that he is unhealthy and for this reason ought not to represent himself. While it is unfortunate that Mr. Sansome is apparently in poor health, he appeared at the hearing and was able to make submissions. Further, some of his concerns can be addressed. For example, Mr. Sansome has difficulty hearing, but the Court can provided him with technological aids to assist him. The Court is also prepared to allow breaks, or accommodate Mr. Sansome where possible. [16] Further, this is not a matter which raises issues of public concern or is likely to have any impact on the law. As discussed above, the issues are not legally complex. Mr. Sansome argued at the hearing that there are issues of public interest because he alleges the defendants breached the privacy interests Page 6 of his former clients. This was not argued at trial. Even if this were established, this would not justify ordering the Attorney General to fund Mr. Sansome’s litigation. The lawsuit is still very much of a private nature. [17] As well, although Mr. Sansome asserts he would suffer financial hardship, I am not satisfied this is established on the evidence before me. He has provided no formal documentation in this regard, but indicates that he receives only a small pension and other standard federal benefits that are not sizeable. He also asserts that he has both a mortgage and car payments. [18] However, Mr. Sansome provided no evidence that he has approached any solicitor to retain him on these appeals and what that cost would be. In the absence of a clear financial picture as to what Mr. Sansome can afford and what it is anticipated it will cost to retain counsel, I cannot ascertain the extent to which, if any, having to pay for counsel might cause Mr. Sansome financial hardship. [19] Looking at the above considerations, and keeping in mind that the court appointment of state funded counsel is an extremely rare matter, given that this request is in the context of private litigation, the circumstances on balance do not weigh in favour of appointment of counsel for Mr. Sansome. [20] The application for appointment of counsel is dismissed. [21] The Attorney General has not sought costs. The respondents did not appear, although counsel for Industrial Alliance Insurance and Financial Services Inc. filed a response to the application. Given that there was no requirement for the respondents to participate in the application, I am not inclined to award costs and there will be no order as to costs. _____________________________ F. J. KNICKLE J.A.