Citation: Ocean v. Economical Mutual Insurance Co., 2009 NSCA 9
Date: 20090123
Docket: CA301593
Registry: Halifax
Between:
May Ocean
Appellant
v.
Economical Mutual Insurance Co.
Respondent
Revised judgment: The text of the original judgment has been corrected according to the erratum dated January 26, 2009. The text of the erratum is appended to this document.
Judge: The Honourable Justice Linda Lee Oland
Application Heard: Thursday, January 22, 2009, in Halifax, Nova Scotia, in Chambers
Held: Application granted in part
Counsel: May Ocean in person for the appellant
Patricia Mitchell for the respondent
Bryna Fraser for Raymond Patrick Sullivan
Decision:
[1] In an application for a stay of execution of an order pending the hearing of the appeal, the question to be determined is whether, in the particular circumstances of the case, the exceptional remedy of a stay should be granted. The circumstances surrounding this application are unusual.
[2] In December 2000, the appellant, May Ocean, was involved in a motor vehicle accident with the respondent, Raymond Patrick Sullivan. He was allegedly an uninsured motorist. In 2002, she sued Mr. Sullivan and the respondent, Economical Mutual Insurance Company of Canada, pursuant to the uninsured motorist provisions of her own insurance policy, for personal injuries allegedly suffered in the accident. Ms. Ocean has represented herself since late August 2006.
[3] Trial dates were set for several days commencing September 26, 2008. On September 10, 2008, Economical Mutual applied for an order that Ms. Ocean be assessed by an independent medical expert to determine her competency to represent herself in the proceeding. At the conclusion of the hearing on September 17, 2008, Smith, A.C.J. of the Nova Scotia Supreme Court gave an oral decision granting the order and adjourning the trial. She granted the order pursuant to Civil Procedure Rule 23 and, alternatively, the inherent jurisdiction of the court. According to counsel for Economical Mutual, this is the first time that a court in this province has issued such a ruling in a civil case.
[4] In the course of her decision, which is reported as Ocean v. Economical Mutual Insurance Company et al., 2008 NSSC 282, the judge stated:
[17] As I indicated previously, Ms. Ocean is advancing a significant claim in excess of $500,000.00. She is a self-represented litigant and suggests that she suffers from Post Traumatic Stress Disorder. ...
[18] I have an obligation as a trial judge to help to insure that the parties to this action receive a fair trial. In order to insure that the plaintiff receives a fair trial, I must be satisfied that she is competent to represent herself in this proceeding. The evidence that has been presented satisfies me that it is appropriate to order a psychiatric examination of Ms. Ocean to determine this issue.
[5] Shortly after the September 17, 2008 oral decision, Ms. Ocean filed a notice of appeal and an application for a stay. These could not proceed in the absence of an order and of a transcript of the judge’s reasons.
[6] As the judge directed in her decision, the parties subsequently reconvened before her to discuss, among other things, how much time Ms. Ocean would have to provide any name of psychiatrists she may wish to put forward, and the questions to be asked of the assessor. The interlocutory order issued on December 15, 2008. It fixed the date of the assessment as January 7, 2009 and appointed Dr. Eileen Brunet as the expert for conducting the assessment. Due to inclement weather, the assessment was rescheduled to January 14th.
[7] Ms. Ocean met with Dr. Brunet for several hours on that day. Her assessment is scheduled to resume on Sunday, January 25th, two days hence. That is, Ms. Ocean complied with the order and attended before Dr. Brunet, and the assessment is underway but not concluded. The appeal of the order of Smith, A.C.J. has been set down for hearing on May 25, 2009.
[8] Ms. Ocean appeared in Chambers yesterday seeking a stay of the December 15, 2008 interlocutory order pending the hearing of the appeal. She does not want to attend at all for any continued assessment by Dr. Brunet on January 25th. Alternatively, she sought a delay in the assessment. Ms. Ocean filed a copy of the order and a transcript of the September 17, 2008 hearing. In support of her stay application, Ms. Ocean relied upon materials including her affidavits dated September 29, 2008 and January 21, 2009, and that of Cathy E. Bennett dated January 21, 2009. Counsel for Economical Mutual filed an affidavit which supplied copies of various court documents relating to the litigation and order which is the subject of the stay application. Ms. Ocean and counsel for Economical Mutual provided written submissions and made oral argument. Counsel for Mr. Sullivan largely relied on the arguments made by Economical Mutual. At the conclusion of the stay application after the noon hour yesterday, I asked counsel for Economical Mutual and for Mr. Sullivan to provide authorities on a legal question pertaining to stays. They worked swiftly and delivered material in the afternoon.
Analysis
General
[9] Justice Fichaud in La Ferme D’Acadie v. ACOA, 2009 NSCA 5 stated:
[9] The test for a stay has not changed with the new Civil Procedure Rules.
[10] The starting principle is that the successful litigant may retain the fruit of his judgment unless "required in the interests of justice": Coughlan v. Westminer Canada Limited (1993), 125 N.S.R. (2d) 171 (C.A.), at p. 174, per Freeman, J.A. The "interests of justice" are governed by the principles under the Rules.
[11] In Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R. (2d) 341 (C.A.), at ¶ 27, Justice Hallett set out what has become the accepted definition of those principles under the former Rule 62.10(2), now Rule 90.41(2). Briefly, the applicant for the stay must show either that (1) there is an arguable appeal, denial of a stay would cause irreparable harm and the balance of convenience favours a stay or (2) there are exceptional circumstances making it just that the stay be granted.
As the applicant for a stay, Ms. Ocean bears the burden of satisfying the court that the exceptional remedy of a stay pending appeal should be granted. See Fulton Insurance Agencies Ltd. v. Purdy, (1990) 100 N.S.R. (2d) 341 at ¶ 28 and Amirault v. Westminer Canada Ltd., (1993) 125 N.S.R. (2d) 171 at ¶ 8.
[10] Ms. Ocean spoke passionately in support of a stay. She recounted some of the lengthy history of the litigation pertaining to the motor vehicle accident, disputed some of the evidence that had been presented at the September 17, 2008 hearing, and vehemently maintained that there was no basis for the order requiring her to undergo a competency assessment. She also spoke of the impact of the litigation and the order on her personal life and on her business.
[11] Ms. Ocean was not cross-examined on her affidavits. In them, she deposed that sales of the pewter giftware designed and produced by her business are generally seasonal, with one of the primary sources being spring wholesale orders largely garnered by attending wholesale shows, such as the upcoming Atlantic Canada Trade Show which starts February 7, 2009. She also deposed that since the motor vehicle accident in 2000, annual sales of her company had declined approximately 90 percent, and her staff had fallen from more than 20 to one part-time person. Her affidavit evidence also recounted that, having identified and made claims of negligence and serious illegal activity such as conspiracy in the course of the litigation, she was fearful for herself, her loved ones, and her supporters.
The Test For A Stay
The Primary Test
[12] The primary test in Fulton requires the applicant for a stay to satisfy all three components. In my view, Ms. Ocean has not met the primary test – she has not demonstrated that there is an arguable appeal raised on the appeal.
[13] In Westminer, Justice Freeman defined an arguable issue:
[11] "An arguable issue" would be raised by any ground of appeal which, if successfully demonstrated by the appellant, could result in the appeal being allowed. That is, it must be relevant to the outcome of the appeal; and not be based on an erroneous principle of law. It must be a ground available to the applicant; if a right to appeal is limited to a question of law alone, there could be no arguable issue based merely on alleged errors of fact. An arguable issue must be reasonably specific as to the errors it alleges on the part of the trial judge; a general allegation of error may not suffice. But if a notice of appeal contains realistic grounds which, if established, appear of sufficient substance to be capable of convincing a panel of the court to allow the appeal, the chambers judge hearing the application should not speculate as to the outcome nor look further into the merits. Neither evidence nor arguments relevant to the outcome of the appeal should be considered. Once the grounds of appeal are shown to contain an arguable issue, the working assumption of the chambers judge is that the outcome of the appeal is in doubt: either side could be successful.
[14] The notice of appeal filed by the self-represented appellant does not list or clearly articulate the grounds of appeal. These must be extracted from ten pages of single-spaced text. Much of the material is a narrative of the litigation and the lead-up to the September 18, 2008 hearing, her views regarding her former counsel and opposing counsel, certain hypotheses held by Ms. Ocean, etc. It is difficult to discern any argument pertaining to how the judge may have erred in determining to issue the order requiring an assessment.
[15] Ms. Ocean alleges that the decision and order requiring an assessment infringe her rights under the Charter of Rights and Freedoms. Several times she simply refers to her “constitutional rights”. Elsewhere she identifies the rights allegedly breached. These include: s. 2 – freedom of belief, opinion and expression; s. 7 – the right to life, liberty and security of the person; s.11 – the presumption of innocence and a hearing by an independent and impartial tribunal; s. 12 – cruel and unusual treatment or punishment; s. 14 – right to the assistance of an interpreter; and s. 15 – equality before and under the law.
[16] In some cases, it is apparent from the jurisprudence that the section cited does not apply in the circumstances described. Generally, just how these allegations relate to any alleged error of law or fact on the part of the judge which resulted in an incorrectly granted order, or how the decision and order might have breached these provisions is unclear. At best, there are general allegations of error, which Ms. Ocean has not linked to the transcript or the decision under appeal.
The Secondary Test
[17] Having found that one of the components and, therefore, the primary test in Fulton has not been met, I then turn to the secondary test: are there exceptional circumstances that would make it fit and just that a stay be granted in this case? In her application for a stay, Ms Ocean relied upon this test.
[18] As I indicated earlier, the circumstances underlying this application for a stay are unusual. The central requirement of the order under appeal and sought to be stayed, namely that the appellant be assessed for her competency to represent herself at trial, is already underway. The stay application yesterday was heard after Ms. Ocean had her initial session with the expert and before the continued session. It appears that the order may be the first of its kind in a civil proceeding in this province. Ms. Ocean was self-represented before and during the September 17, 2008 hearing, on the filing of her notice of appeal, and on the stay application.
[19] In Brown v. Brown (1999) 173 N.S.R. (2d) 41 (C.A. 153173), [1999] N.S.J. No. 20, after determining that the primary test in Fulton had not been met, Cromwell, J.A. in Chambers stated:
[12] It is also necessary, however, to consider whether there are exceptional circumstances that would make it fit and just to grant the stay. In considering this question, I note that while the requirements of an arguable issue, irreparable harm and the balance of convenience are useful guides to the exercise of discretion, the true objective of granting judges the discretionary power to grant a stay of execution is to achieve justice as between the parties pending appeal in the particular circumstances of their case. I think it is important to keep this in mind, especially where, as here, the applicant for a stay is not represented by a lawyer and may not, as a result, file material which addresses the three-part test set out in Fulton. (Emphasis added)
[20] Also helpful is his review of the application of the secondary test in W. Eric Whebby v. Doug Boehner Trucking & Excavating Ltd., 2006 NSCA 129, where Justice Cromwell stated:
[11] Very few cases have been decided on the basis of the secondary test in Fulton. Freeman, J.A. in Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R. (2d) 171 (C.A., in Chambers) at para. 13 offered as an example of exceptional circumstances a case in which the judgment appealed from contains errors so egregious that it is clearly wrong on its face. As Fichaud, J.A. observed in Brett v. Amica Material Lifestyles Inc. (2004), 225 N.S.R. (2d) 175 (C.A., in Chambers), there is no comprehensive definition of "exceptional circumstances" for Fulton's secondary test. It applies only when required in the interests of justice and it is exceptional in the sense that it permits the court to avoid an injustice in circumstances which escape the attention of the primary test.
[12] While there is no comprehensive definition of what may constitute "exceptional circumstances" which may justify a stay even if the applicant cannot meet the primary test, those exceptional circumstances must show that it is unjust to permit the immediate enforcement of an order obtained after trial...
[14] ...the general rule is that a successful litigant should not be deprived of the "fruit of his judgment" unless that is required in the interests of justice...
[21] While the interlocutory order which is the subject of the stay application issued in the course of litigation, it did not arise in a purely adversarial context. Counsel for Economical Mutual submitted that it urged the judge not to view the interlocutory application as between adversaries, but rather to make the order requiring the appellant’s assessment to protect the process of the court outside the context of the issues between the parties. This is supported by the written submission she provided to the judge and by the extract from the judge’s reasons quoted in ¶ 4 above. In my view the usual emphasis on a “successful litigant” retaining the “fruit of his judgment” should be softened significantly here. The circumstances underlying this stay application are clearly unique.
[22] I return to the discretionary nature of a stay and the objective of achieving justice as between the parties pending appeal in the particular circumstances of the case. Ms. Ocean considers the order for assessment unfair, baseless, insulting, and a breach of her constitutional rights. She argues that having to attend before Dr. Brunet this coming Sunday afternoon means that she would not have sufficient “quality time” to immerse herself in designing and producing molds for new products and casting those products before the trade show that starts in approximately two weeks, and that the lack of new designs there “could potentially” be the blow that causes the loss of her business.
[23] As permitted by the order, Ms. Ocean delivered material of her choosing to the assessor. Nothing in her affidavit evidence or her oral submissions suggested that she has to do anything further to prepare herself for the continued assessment. As is apparent from the extensive materials she filed on the stay application, Ms. Ocean must have expended considerable time drafting, compiling and filing documents and preparing her oral submission.
[24] I accept that Ms. Ocean is feeling very stressed as a result of the order and the stay application she has brought. However, I am not completely persuaded that attendance at the continued assessment session this Sunday would disrupt her ability to work or devastate the income of her business to the extent Ms. Ocean suggests. In other material she presented, it is apparent that her concerns regarding the financial stability of the business have been expressed for years. While the situation may have become more serious with the passage of time, just how serious it may be and the extent of the business’s reliance on this trade show were not explained in any detail in her affidavit evidence.
[25] If a stay were granted, the personal injury claim Ms. Ocean commenced against the respondents would not progress until after the determination of her appeal. It is scheduled to be heard in late May, 2009. If her appeal should be dismissed, then the remaining portion of the assessment would be rescheduled and completed, and the report delivered. If the results are in Ms. Ocean’s favour and the court allows her to represent herself or, if they are not, and other arrangements are made, there will be considerable delay in finding dates for a trial that requires more than seven days. Unless the matter should settle, Ms. Ocean’s claim for damages for personal injury cannot be decided without trial. In her submissions, Ms. Ocean spoke of the financial pressures she was enduring in the interim.
[26] If a stay were not granted, the assessment would continue this Sunday and, whenever Dr. Brunet’s report is completed, Ms. Ocean’s claim against the respondents would move forward. If her appeal to this court should be successful, the report (if it should find Ms. Ocean incapable of representing herself) would not be taken into account for the purposes of continuing to trial. It is evident that, for practical reasons, namely the availability of dates for a lengthy hearing, the trial will not proceed before the appeal is heard. Ms. Ocean, or any counsel or representative permitted by the court on her behalf, should have ample time to complete preparations for trial. Any damages or loss that she may suffer as a result of participating in the assessment can be addressed at trial.
[27] Whether granting the stay would make Ms. Ocean’s appeal moot is another factor. As explained in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at ¶ 15, a court may decline to decide a case which raises merely a hypothetical or abstract question. The case also set out the approach to be taken by the court in determining whether it should exercise its discretion and hear a case even though it is moot. In certain circumstances, when, if a stay were not granted, the appeal would become moot, the court has found that the appellant would suffer irreparable harm and satisfy the second component of the primary test in Fulton. See, for example, O’Connor v. Nova Scotia (Deputy Minister of the Priorities & Planning Secretariat), 2001 NSCA 47; Reid v. Halifax Regional School Board, 2006 NSCA 35; Grafton Street Restaurant Ltd. v. Nova Scotia Utility & Review Board, 2002 NSCA 97.
[28] Whether an appeal is moot and, if so, whether the court will hear it, will be determined by the panel hearing the appeal and not by a single Chambers judge such as myself. I will simply observe that, in this case, Ms. Ocean has already commenced compliance with the order for which a stay is sought. If the stay is not granted and she must continue undergoing the assessment, whether she is competent to represent herself might remain a live issue on her appeal of the order. Further, assuming that on appeal Ms. Ocean is challenging the ability of the judge to have made the order under either Rule 23 or her court’s inherent jurisdiction, her appeal may be one of public interest or importance, as this is the first time that such a ruling has been made in a civil case in this province. Moreover, should her submissions regarding breach of her constitutional rights be successful, she might continue to seek relief under the Charter.
[29] Having considered the unique nature of this case and the effect of granting or dismissing the application as set out above, I would grant the stay of the order only to the extent of delaying the continuation of the assessment to a date on or after Monday, February 16, 2009.
[30] In my view, this strikes an appropriate balance between Ms. Ocean’s desire to have her appeal heard and her need to have her trial progress and the respondents’ entitlement to a trial to resolve the claim against them without excessive delay. The resumed date for the assessment, namely Sunday, January 25, 2009, was not decreed by court order. It is not apparent from the material and submissions before me if it was at the instigation of the assessor or by agreement. In any event, the date I have set allows Ms. Ocean to prepare for and attend the trade show and to have a few days before the continued session. As the judge noted in her decision, the appellant alleges post traumatic stress disorder. That short delay to deal with business matters may reduce any financial and other pressures and allow a better assessment. At the same time, particularly having in mind that the assessment had to start late and then had to continue, the delay for just over three weeks or a little more is not unfair to the respondents. This is the most appropriate way to achieve justice as between the parties pending the appeal that I could fashion in the circumstances.
[31] My granting of a stay to this limited extent means that Ms. Ocean must attend for a continuation of the assessment ordered by the judge on a date and at a time on or after Monday, February 16, 2009, as set by Dr. Brunet. I expect that the continued session will be held shortly thereafter. In the circumstances, there will be no award of costs. I thank Ms. Ocean and counsel for the respondents for their submissions and assistance.
Oland, J.A.
NOVA SCOTIA COURT OF APPEAL
Citation: Ocean v. Economical Mutual Insurance Co., 2009 NSCA 9
Date: 20090123
Docket: CA301593
Registry: Halifax
Between:
May Ocean
Appellant
v.
Economical Mutual Insurance Co.
Respondent
Revised judgment: The text of the original judgment has been corrected according to the attached erratum dated January 26, 2009.
Judge: The Honourable Justice Linda Lee Oland
Application Heard: Thursday, January 22, 2009, in Halifax, Nova Scotia, in Chambers
Held: Application granted in part
Counsel: May Ocean in person for the appellant
Patricia Mitchell for the respondent
Bryna Fraser for Raymond Patrick Sullivan
Decision:
[32] Paragraph [21], third line from the bottom change “¶ 14 above” to read “¶ 4 above”.
[33] Paragraph [29], second line, change the word “appeal” to “application”.