Cummings v. Nova Scotia (Attorney General)

Cummings v. Nova Scotia (Attorney General) Court Court of Appeal Date 2014-03-04 Citation 2014 NSCA 23 Docket CA 415797 Judge/Registrar/Adjudicator Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Decision Content Nova Scotia Court of Appeal Citation: Cummings v. Nova Scotia (Attorney General), 2014 NSCA 23 Date: 20140304 Docket: CA 415797 Registry: Halifax Between: Wanda Cummings Appellant v. The Attorney General of Nova Scotia Representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondent Judge: Mr. Justice Jamie W.S. Saunders Motion Heard: February 27, 2014, in Halifax, Nova Scotia in Chambers Held: Motion adjourned to June 5, 2014. Counsel: Appellant in person Duane Eddy, for the respondent Decision: [1] This matter came before me in Chambers this morning as a Registrar’s motion to dismiss the appeal for non-perfection and non-compliance with the rules of procedure pursuant to Civil Procedure Rule 90.43(3). There were two such motions on the docket. The first concerns an appeal filed by Ms. Cummings on June 17, 2013, in CAC 416755 appealing what is characterized as a decision of Supreme Court Justice M. Heather Robertson dated June 13, 2013. The second concerns an appeal filed by Ms. Cummings on May 25, 2013, in CA 415797 where she appeals a decision of Nova Scotia Supreme Court Justice Arthur W.D. Pickup dated April 18, 2013. [2] In her submissions this morning Ms. Cummings insisted that these two matters were “companion cases” and that she had urged the Supreme Court of Canada to hear them together. I have chosen to file separate decisions because each refers to a separate, discrete motion to dismiss from the Registrar, which in turn relate to entirely different files and factual matters and lower court decisions as found by my colleague Justice Fichaud whose decisions and confirmatory orders are now the subject of Ms. Cummings’ application for leave to appeal to the Supreme Court of Canada. [3] My reasons in this decision will be confined to the Registrar’s motion related to CA No. 415797. A separate decision will be filed dealing with the Registrar’s motion in CAC No. 416755. [4] As will become clear in a moment, a consideration of the merits of the Registrar’s motion to dismiss this appeal necessarily involves a reference to proceedings heard by my colleague Justice Fichaud last September which led him to issue a decision and an order which have now become the subject of Ms. Cummings attempt to obtain leave to appeal and appeal to the Supreme Court of Canada. [5] To appreciate the nature of today’s proceedings one needs to clearly understand the long and rather tortuous history that brings us to this place. In his decision, Cummings v. Nova Scotia (Attorney General), 2013 NSCA 113 and confirmatory order Fichaud. J.A. provides a very thorough chronicle of that history which I do not propose to repeat here. Suffice it to say that in simple terms following that hearing in Chambers, Justice Fichaud dismissed Ms. Cummings’ motion to amend her Notice of Appeal; denied her request to file a DVD instead of the appeal book as required by the Civil Procedure Rules; set deadlines for Ms. Cummings to comply with several specific directions including filing a proper appeal book, copy of the proposed fresh evidence, and a factum addressing such fresh evidence; set the date by which the respondent would file its factum in response to Ms. Cummings’ fresh evidence motion; and ordered that if, and only if Ms. Cummings had complied with the earlier directions would she be free to apply for a new date to hear her appeal on the merits. [6] All of this relates to Ms. Cummings’ appeal from the decision Justice Pickup, which was delivered as an oral decision on April 18, 2013,but never reported. A copy of his judgment is attached to Ms. Cummings’ Notice of Appeal filed May 22, 2013. I will briefly summarize the nature of these proceedings. [7] On April 18, 2013, Pickup, J. granted the Crown’s motion and quashed the subpoenas Ms. Cummings had served upon Mr. Kenneth Winch, Director of Court Services, Department of Justice and Mr. Sheldon Choo, a solicitor with that Department. The subpoenas obliged them to appear as witnesses at Ms. Cummings’ trial in the Provincial Court before Judge Beech on April 23, 2013. Besides their personal attendance, Messrs. Winch and Choo were also required to produce and deliver a variety of documentation and items including search warrants, CPIC reports, and RCMP audio tapes relating to Ms. Cummings’ previous trials, her interactions with the police and searches of her premises. Ms. Cummings appealed that decision and it is that appeal which led to Ms. Cummings’ appearance before my colleague Justice Fichaud in Chambers last September. In simple terms she filed a variety of motions first heard by Justice Fichaud on September 12, 2013. At that time he gave her specific directions concerning her purported notice of constitutional issues, and her attempt to introduce fresh evidence. Fichaud, J.A. allowed time for the filing of submissions and reply submissions which then brought the matter back before him in Chambers on September 26, 2013. [8] Then, as I have already described, Justice Fichaud denied Ms. Cummings’ motions; released the appeal hearing date; set new filing deadlines; and imposed a number of specific directions upon Ms. Cummings in order for her to advance her appeal as permitted by the laws of evidence and our Civil Procedure Rules. [9] None of those directions or deadlines was honoured by Ms. Cummings. She has not filed an appeal book containing a transcript with a certificate from a certified court reporter, nor has her factum, book of authorities, or proposed fresh evidence been filed. [10] All of this led the Registrar to bring her motion to dismiss the appeal on February 4, 2014 which led to the parties’ appearance before me in Chambers on February 27. [11] I should say that between the date of Justice Pickup’s decision last April and Justice Fichaud’s involvement, there were numerous claims for relief, motions, etc. which consumed much in the way of counsels’ time and the Registrar’s time in having to respond. This included a hearing in Chambers on May 30, 2013, before my colleague, Justice Linda Lee Oland where she denied Ms. Cummings’ motion for a stay, and set dates and filing deadlines for the advancement of Ms. Cummings’ appeal. [12] With this necessarily condensed history of the proceedings by way of background, the next step in the chronology from the perspective of this Court concerns today’s motion brought by the Registrar to dismiss Ms. Cummings appeal pursuant to Civil Procedure Rule 90.43(3) and (4). All parties were properly served with the Registrar’s notice of motion. [13] Ms. Cummings opposed the motion. She filed an affidavit sworn February 25, 2014, where she listed in the style of cause both proceedings, they being CAC No. 416755, and this one being CA No. 415797. Her affidavit contained several attachments, and she also filed a brief, and a DVD which she said contains “the updated court record, including submissions and affidavits filed with the SCC to present day”. In ¶3 of her affidavit sworn February 25, 2014, Ms. Cummings states: 3. On 23 February 2014, I retrieved the Supreme Court of Canada docket information for case files SCC 35657 and SCC 35711. Those dockets are related to appeals from decisions made by Justice Fichaud on 8 October 2013 in NSCA case files CAC 416755 and CA 41597 respectively. A true copy of the SCC docket information for these two case files is attached hereto as Exhibit A, pp. 2-5. [14] In her oral submissions this morning Ms. Cummings said she relied upon the materials she had filed and that Justice Fichaud’s decision and order dated October 8, 2013, were the reason why it was “impossible” for her to perfect her appeal. [15] Mr. Duane Eddy appeared for the respondent, the Attorney General of Nova Scotia. He expressed his support for the Registrar’s motion to dismiss this appeal, and endorsed and adopted the earlier submissions made by Ms. Fortune Stone, Q.C. who appeared for the Nova Scotia Department of Justice, and Mr. Sheldon Choo who appeared for the Attorney General of Nova Scotia in CAC No. 416755. [16] From the affidavit and supporting materials filed by Ms. Cummings together with her brief submissions and counsels’ submissions this morning it is obvious that there is an enormous gulf between their respective positions. [17] Ms. Cummings passionately asserts that the Crown in its various iterations has over the last several years: driven her into penury; forced her to seek social assistance; treated her shabbily; and subjected her to relentless “prosecution and persecution” which have seriously affected her life and her liberty. She says the result of Justice Fichaud’s decision and confirmatory order was effectively “final” because its terms make it “impossible” for her to proceed with her appeal from Justice Pickup’s judgment (or any other appeal she has initiated for that matter). She protests that her treatment before the courts have made her the victim of a miscarriage of justice. She believes that the Crown’s attempt to characterize Justice Fichaud’s decision and order as simply “interlocutory” is nothing more than a ploy, a tactic by the Crown to defeat her. [18] For his part, Mr. Eddy said that Justice Fichaud’s decision and order were in fact interlocutory because they in no way bar Ms. Cummings from proceeding with her appeal; rather he ordered that her intended appeal could proceed but only as permitted by the laws of evidence and the procedural requirements under our Rules; that he had instructed her on the requirements for seeking to introduce fresh evidence and had informed her that such a request for leave could only be decided by the panel hearing the merits of the appeal; that the Crown has and continues to have serious concerns about Ms. Cummings’ health and well- being; and that its actions throughout have had nothing to do with her “liberty” but only reflect their best efforts to respond to and keep up with the flurry of seemingly endless motions or demands for relief she files. Mr. Eddy wished to remind Ms. Cummings that choosing to represent herself did not provide her with immunity from costs orders and that at some point the Crown might well seek to recover some of its agency fees and other costs. [19] This wide dichotomy of views now brings me to a consideration of CPR 90.43, its purpose and effect. [20] Civil Procedure Rule 90.43 is a very important and effective tool. It permits judicial culling of the herd. It promotes predictability, consistency and compliance. Most importantly it is fair. Fair to all those who choose to engage the litigation process in order to resolve their disputes. [21] This Rule serves as a mechanism to carry out the object of the Rules which is to enable the just, speedy and inexpensive determination of every proceeding. Rule 90.43(3) imposes a positive duty upon the Registrar. Whenever a litigant fails to comply with the Rules in perfecting an appeal, the Registrar is bound to act. She must bring a motion to a judge for an order dismissing the appeal on five days’ notice to the parties. Whether a party is represented by counsel or chooses to be self-represented the requirements for perfecting an appeal are neither complex nor particularly onerous. On hearing the Registrar’s motion, a judge may either direct perfection of the appeal, set the appeal down for hearing, or dismiss the appeal. [22] Receiving notice of such an intended motion from the Registrar tends to awaken sleepy litigants. It gets people’s attention. Things happen. In that way access to justice is fairly monitored, managed and achieved. Judges are able to supervise the Court’s finite and tapped resources to ensure that the system is not abused. After a full hearing, judges are able to move cases along expeditiously and prune out the clutter and debris of those files that have been abandoned, or were left to languish, or were ignored. Cases that deserve to be heard, are; such that their time in the queue is not delayed by litigants who have been shown to be lethargic, non-compliant or indifferent. [23] Today, after hearing limited submissions, it seemed to me unwise to proceed with a consideration of the Registrar’s motion on its merits. Mr. Eddy, appearing as counsel for the Attorney General of Nova Scotia, reiterated the information provided by Mr. Choo in CAC No. 416755 when he advised that Ms. Cummings first sought to appeal Justice Fichaud’s decision and order to the Supreme Court of Canada “as of right”. The Registrar of the Supreme Court informed her that she had no such right and that she would have to seek the Court’s leave. She challenged the Registrar’s ruling which was later upheld by Justice Abella on January 31, 2014. Counsel advised that Abella, J. gave Ms. Cummings until February 14, 2014 to file documents in support of her application for leave to appeal. Evidently that has been done. Of course we do not know whether, or when, the Supreme Court might be disposed to consider Ms. Cummings’ application for leave. Neither do we know whether the Supreme Court, through its Registrar, is even prepared to accept for filing Ms. Cummings’ materials and/or whether the respondents will be required to respond. In response to my questions Mr. Choo had advised that in his experience with this and other files involving Ms. Cummings one might reasonably expect to hear whether the Court has decided to receive the filings or grant or refuse leave within three months from the date leave is sought. [24] Mr. Eddy supported Mr. Choo’s and Ms. Fortune-Stone’s earlier suggestion that I consider adjourning the hearing of the Registrar’s motion pending a decision from the Supreme Court. I concurred and ordered that the matter be adjourned to Chambers before a Justice of this Court on Thursday, June 5, 2014 at 10:00 a.m. when the appellant and all counsel were available. I am not seized of the matter and it can be heard by whomever is presiding and available. [25] Before concluding these reasons I wish to confirm, as I did in court, my response to five miscellaneous points or submissions made by Ms. Cummings. First, she said she disagreed with Justice Abella’s decision affirming the Supreme Court’s Registrar’s decision that she could not appeal “as of right” Justice Fichaud’s decision and order. She insisted that she could. I attempted to make it clear to Ms. Cummings that I do not sit on appeal from Justice Abella’s or Registrar Bilodeau’s rulings. [26] Second, she continued to attack the basis of Justice Fichaud’s decision and confirmatory order. I tried to explain to Ms. Cummings that I do not sit on appeal from a colleague’s rulings. [27] Third, when I had Ms. Cummings confirm that she had not sought a review of Justice Fichaud’s decision and order by the Chief Justice pursuant to Civil Procedure Rule 90.38, Ms. Cummings said she “could not afford to do both” and inferred that the reason she did not seek a review in this case was because she was unhappy with Chief Justice MacDonald’s dismissal of her motion for leave to review in a previous case of hers and that his decision had come without reasons. When I told Ms. Cummings that reasons were not required pursuant to CPR 90.38(7) she acknowledged her familiarity with that Rule but said that reasons were called for in her case “following Sheppard” which I took to mean a reference to the Supreme Court of Canada’s decision in R. v. Sheppard, 2002 SCC 26. When I asked the appellant what she meant by not being able to afford “both” she said one course of action would have been to seek Chief Justice MacDonald’s review under CPR 90.38 whereas the other option, the one she chose to exercise, was to “appeal as of right” to the Supreme Court of Canada. [28] As part of Justice Fichaud’s decision and order (which Ms. Cummings now seeks to have overturned by the Supreme Court of Canada) my colleague denied Ms. Cummings’ request to file, as the appeal record, a DVD of all the Provincial Court proceedings that involve her. He also rejected her requests that her appeals be held “in abeyance” pending a disposition of one before the other, or that her two appeals be consolidated for a joint hearing in this Court. Justice Fichaud’s reasons are fully explained in his decision but I would note, in part: [13] Ms. Cummings proposes to file, as the appeal record, a DVD of all the Provincial Court proceedings that involve her. She terms this “fresh evidence”. The DVD would encompass proceedings other than the matter before Judge Beach that underlies this appeal. According to counsel, the DVD would embody the equivalent of some 2000 pages of transcript of Ms. Cummings’ interactions with the Provincial Courts over five years on various charges, a number of which have concluded. There would be no transcripts, no certification by a court reporter, and no isolation of the matters that pertain to this appeal. As I noted in the companion decision, the result would be a chaotic broadening of the issues that are pertinent to this appeal. This is an appeal from a decision of Justice Pickup, who quashed two subpoenas for a proceeding before Judge Beach on a charge of a breached undertaking. The appeal record should be the material that pertains to that matter only, in the normal form that is prescribed by Rules 90.30 and 91.15 for civil and criminal matters respectively. I reject Ms. Cummings’ request that the DVD be filed instead of the normal appeal books that would include written transcripts. [14] A motion for fresh evidence is for the panel of this Court, not for a motions judge. I have no jurisdiction to rule whether or not any fresh evidence will be admitted by the panel on the hearing of this appeal. If Ms. Cummings wishes to move to add the DVD as fresh evidence, she may make that motion. The result of the motion will be for the panel. But I underscore – and this is within a chambers judge’s authority - that the DVD is not in lieu of the proper appeal books that must be filed in accordance with the Rules. [15] Ms. Cummings Notice of Constitutional Issue seeks to challenge the validity of Civil Procedure Rule 82.12, the entire Court Officials Act, R.S.N.S. 1989, c. 373, as amended and ss. 29(1)(b) through (f) of the Public Service Act, R.S.N.S. 1989, c. 376, as amended. These legislative instruments govern electronic filing in the Supreme Court of Nova Scotia (Rule 82.12), the appointment of staff for the administration of justice in the Province (Court Officials Act) and the superintendence by the Minster of Justice and Attorney General of the provincial government’s functions in the administration of justice (Public Service Act). Those topics have no relevance to whether or not Justice Pickup should have quashed two subpoenas for the trial, in Provincial Court, of Ms. Cummings’ alleged breach of an undertaking for a recognizance by her conduct on September 7, 2011. I deny Ms. Cummings’ request for an amendment of her Notice of Appeal to raise those issues. [16] This leaves the logistical directions for the process of this appeal. [17] Ms. Cummings asks that the instant appeal (CA 415797) be held “in abeyance pending the outcome of” the other appeal (CAC 416755) “so that the constitutional question can be considered by a panel of this Court”. Alternatively, she requests that the two appeals be consolidated for a joint hearing. [18] As discussed above, and reiterated in my companion decision for the other appeal, the constitutional issues are not pertinent to either appeal, and an amendment to the Notices of Appeal to raise those issues is denied. Neither is there any other connection between the two appeals. This one concerns whether Justice Pickup should have quashed two subpoenas for Messrs. Winch and Choo, for a trial before Judge Beach of a charge that Ms. Cummings breached a condition of a recognizance on September 7, 2011. The other appeal concerns whether Justice Robertson should have declined to hear a judicial review related to charges underway in Port Hawkesbury’s Provincial Court before Judge Stroud. The two appeals are not interdependent. I decline to order either be held “in abeyance” pending conclusion of the other, or that the two appeals be consolidated for a joint hearing. [29] Evidently Ms. Cummings has chosen to place all of this information before the Supreme Court of Canada because as she declares in ¶6 of her affidavit sworn February 25, in opposition to the Registrar’s motion: 6. I believe that I have been denied natural justice by all NS courts throughout these proceedings, including the actions and inactions of the registrar/prothonotary, which has resulte din a continued miscarriage of justice since 2008. This is outlined in past submissions with this Court, as well as submissions to the Supreme Court of Canada, the latter of which appear on the first level of the DVD, and in the folder on the DVD entitled “SCC Record”. I continue to rely on those submissions for the purpose of this proceeding, as well as the NS courts record, including all submissions and affidavits. [30] The fourth point I wish to make concerns Ms. Cummings’ assertion this morning that “all of her cases” were shielded by a publication ban and that any order or decision on my part would have to be anonymized so as to conceal her identity. If I did not, she said I would be “in violation of the Criminal Code” and proceeded to reference a chain of section numbers which, to her mind, compelled me to keep her identity secret. I refused. The Registrar, who was present in Court, as well as counsel for the Department of Justice and the Attorney General of Nova Scotia all confirmed that as far as they were aware, there is no such publication ban covering these proceedings, in this Court. I observe that the impugned decision and order of Justice Fichaud which Ms. Cummings seeks to have overturned by the Supreme Court of Canada contains a full, open, transparent and standard style of cause where all of the parties are named and identified. So too do the title pages and styles of cause used by Ms. Cummings in her affidavit and other documents she filed for today’s hearing. [31] This brings me to the fifth and final point. As I told Ms. Cummings, and over her protests, none of the provisions from the Criminal Code cited by her this morning have any relevance to or any bearing upon this Court’s consideration of the Registrar’s motion. The approach taken by this Court in such matters is settled law. See for example, Sevgur v. Islam, 2011 NSCA 114; Leigh v. Belfast Mini-Mills Ltd., 2012 NSCA 67; and Mader v. Hatfield, 2013 NSCA 56. The appellant’s repeated references to sections of the Criminal Code are respectfully misguided and irrelevant. [32] There is one last matter I wish to address. As I explained to the parties in Chambers, it is not automatic that a litigant’s attempt to appeal to the Supreme Court of Canada will bar or stall this Court’s consideration of a Registrar’s motion to dismiss. If it were otherwise, any litigant could attempt to thwart the course of justice by simply filing a leave application. That is not the way things work. Just as filing a notice of appeal in Nova Scotia does not automatically stay the order of the court or tribunal below, but rather requires its own separate application and hearing in this Court to decide that relief on its merits, so too in cases where leave is sought from the Supreme Court of Canada (more particularly in interlocutory matters such as this) where proceedings are still very much alive and ongoing in this province. Clearly, each motion must be decided based on its own set of circumstances. It was the unique and very protracted history of this case which persuaded me that it was prudent to adjourn the hearing to June to await the outcome of Ms. Cummings’ attempt to have the Supreme Court hear her appeal from the decision and order of my colleague Justice Fichaud. Conclusion [33] The Registrar’s motion to dismiss this appeal is adjourned to regular Chambers Thursday, June 5, 2014 at 10 a.m. I am not seized of the matter and it can be heard by whomever is presiding and available. [34] I directed Mr. Eddy to advise the Registrar and seek an expedited continuance of today’s hearing if he should learn of the Supreme Court of Canada’s disposition of Ms. Cummings’ leave application sooner than anticipated. [35] No party sought costs at today’s hearing, preferring to wait until the matter is heard and concluded in Chambers on June 5, 2014 or sooner, as circumstances dictate. Saunders, J.A.