Tutty v. Nova Scotia (Attorney General)

Tutty v. Nova Scotia (Attorney General) Court Supreme Court Date 2022-08-11 Citation 2022 NSSC 236 Docket Hfx No. 516768 Judge/Registrar/Adjudicator Norton, Scott C. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Tutty v. Nova Scotia (Attorney General), 2022 NSSC 236 Date: 20220811 Docket: Hfx No. 516768 Registry: Halifax Between: Neil Conrad Tutty Applicant v. The Attorney General of Nova Scotia Respondent Decision on Adjournment and Costs Judge: The Honourable Justice Scott C. Norton Heard: August 11, 2022 Counsel: Neil Tutty, Applicant Adam Norton, for the Respondent By the Court (Orally): [1] Neil Tutty is a remanded inmate currently being detained at the Central Nova Scotia Correctional Centre. On August 3, 2022, Mr. Tutty filed an application for Habeas Corpus. A Motion for Directions hearing was held by telephone on August 5, 2022, at which time Justice Rosinski scheduled the matter for hearing today, August 11, 2022, and ordered that Respondent, Attorney General of Nova Scotia (AGNS), file its materials with the court by August 9, 2022. [2] The materials were not filed on August 9, with no communication to the court by the AGNS offering any explanation. When court administration contacted counsel on August 10, 2022, about the missing filing, counsel for the AGNS responded in writing suggesting an extension to the timeline of the hearing if there are concerns that Mr. Tutty would not have sufficient time to review the materials. I advised counsel through my assistant that I would wait to see the materials filed and when they were served on Mr. Tutty. I further advised that I would be seeking submissions from counsel for the AGNS regarding costs. [3] The materials filed by the AGNS consisted of an unsworn affidavit without exhibits, a brief, and book of authorities. They were filed with the court this morning, August 11, 2022. The cover letter indicated that Mr. Tutty was served personally with a sworn copy of the affidavit with documents after 4:30 p.m. yesterday, August 10, 2022. The letter offered no explanation or excuse for the late filing. [4] At the hearing Mr. Tutty and counsel for the AGNS confirmed that these materials were delivered to Mr. Tutty at 7:45 p.m. last night. The Court did not receive the 39 exhibits to the affidavit until after lunch today, less than one hour before the scheduled hearing. [5] Applications for habeas corpus take priority over all other business of the court: Civil Procedure Rule 7.13(1). As a result, the court schedules hearings on very short timelines based on the undertaking provided by counsel for the AGNS as to when their materials will be available. When a court sets a deadline for the filing of materials it is not a suggestion or invitation. It is a direction, a form of order. When the materials are not filed by the deadline it places the judge and the applicant in a very difficult position. [6] Although an applicant and the court wish to have an application for habeas corpus heard and determined as soon as is reasonably practicable, the court must receive the evidence and submissions from the AGNS in sufficient time to fairly adjudicate the legal issues raised on the application. [7] In the present case, the receipt of an unsworn affidavit without exhibits on the morning of the hearing is completely unacceptable. I am not prepared to proceed with the hearing today. The hearing of a habeas corpus application, like any hearing, is deserving of sufficient time for the court to read and consider the materials filed in advance of the hearing. Further, as most applicants for habeas corpus are unrepresented, the court has the added responsibility of ensuring that the materials filed are appropriate, complete, and comply with the rules of evidence. [8] I have heard from counsel for the AGNS that the cause of this delay was due to a miscalculation of the time necessary to assemble the evidence that would be relevant to the issues to be determined. No explanation was provided for not contacting the court once it became apparent that the filing deadline would not be met. [9] Accordingly, I am adjourning the hearing of the application to Tuesday, August 16, 2022, at 2:00 p.m. That will allow the court and Mr. Tutty a reasonable amount of time to review the evidence and legal brief, and for Mr. Tutty to prepare any questions he has for cross-examination of the AGNS’ witness. [10] It is well understood by counsel in this province that a party that unilaterally causes an adjournment of a hearing is prima facie liable for costs for the inconvenience caused to the court and the other party. The court has broad discretion under the Rules to award costs in these circumstances. I find that an award of costs in this case is necessary to underscore the importance of counsel filing their materials within the deadlines set by the court or, alternatively, seeking an extension of the deadline in advance of the deadline passing. [11] The AGNS shall pay costs to Mr. Tutty forthwith and in any event of the cause in the amount of $500. [12] Counsel for the AGNS will prepare an order accordingly and also arrange a transport order for Mr. Tutty to attend the hearing by video on August 16, 2022, at 2:00 p.m. Norton, J.