Court of Appeal

Nova Scotia Court of Appeal

Citation:  Ocean v.  Economical Mutual Insurance Company,  2013 NSCA 90

Date: 20130807

Docket: CA 415635

Registry: Halifax

Between:

May Ocean

Appellant

v.

The Economical Mutual Insurance Company,

and Raymond Patrick Sullivan

Respondents

Reasons for judgment:

[1]                  May Ocean applied in Chambers on August 1 to set down this appeal for hearing.  She submitted that transcripts were not necessary to her appeal.  At the hearing I advised Ms. Ocean that I would not set the matter down for appeal and would provide a written decision.  This is that decision.

Background to Motion:

[2]                  In 2000 Ms. Ocean was involved in a motor vehicle accident with the respondent, Mr. Sullivan.  Mr. Sullivan was not insured at the time and Ms. Ocean’s insurer, Economical, was joined in the action.  Following a 25-day liability-only trial, Associate Chief Justice Smith divided responsibility for the collision, ascribing 80 percent to Mr. Sullivan and 20 percent to Ms. Ocean, (2011 NSSC 202).  Although a hearing to determine damages was anticipated, Ms. Ocean declined to participate further in legal proceedings before A.C.J. Smith. 

[3]                  She appealed A.C.J. Smith’s decision on liability.  She sought an order from this court exempting her from any obligation to produce a transcript in that appeal.  Justice Oland dismissed the motion.  Amongst other things, Justice Oland was satisfied that the appeal could not be properly adjudicated without a transcript, (2011 NSCA 106).  Subsequently, Ms. Ocean’s appeal was dismissed by Registrar’s motion.

The Present Appeal:

[4]                  Because Ms. Ocean would not participate in any further proceedings before A.C.J. Smith, Economical brought a motion to determine the costs of the trial on liability.  A.C.J. Smith fixed those costs in her decision of April 25th, 2013, (2013 NSCC 120).  That is the decision which prompted the present appeal.  But Ms. Ocean complains of more than that.

The Present Motion:

[5]                  As earlier described, Ms. Ocean has now moved to set the appeal down without the need to reproduce transcripts.

[6]                  Ms. Ocean appeals:   

The entire Judgement of Associate Chief Justice Deborah K. Smith (“ACJ Smith”) in the Supreme Court of Nova Scotia pertaining to citation: Ocean v. Economical Mutual Insurance Company, et al 2013 NSCC 120; docket: Hfx. No. 190673.  This appeal addresses mitigating circumstances resulting in ACJ Smith erring in this Decision due to breaches in her obligations as set forth in Canada Law, the Charter of Rights and Freedoms and the Civil Procedure Rules, therefore ALL Decision made in relation to this case are in question.  This is NOT an appeal to costs only.  ACJ Smith proceeded with matters relating to and making a Decision while ignoring the threats in the context brought forward via Documents, an Expert Report, and materials submitted to ACJ Smith and Parties prior to her recent Decision.

                                                                                  [Original Emphasis]

[7]                  Ms. Ocean included an affidavit with her notice of motion which suggested that there was new or additional evidence that should have been heard by A.C.J. Smith involving a third party in her 2000 motor vehicle accident.  In ¶8 of her affidavit she says in part:

My Notice of Appeal mentions the involvement of a third party in the Motor Accident of 2000 (Herein referred to as the “MVA”) that pertains to my case before the Supreme Court and as per my Notice of Appeal court stamped May 7, 2013.  The Associate Chief Justice Deborah K. Smith (Herein referred to as ACJ Smith), refused to allow this third party to come forward in the only way possible -- by way of my Expert Report containing years of valuable Research that are down loaded to my Toumai and Pronoiasecret Blogs.

…

Understandably, it’s with great difficulty that I bring the truth forward in regards to what I refer to as “inner twin’s and the inner twin world” -- who are the above mentioned third party involved in MVA.  It goes without saying that your first impulse will be to consider me a lunatic, however on examining the evidence it will become clear that this isn’t the case.  This brings me to another concern – that the reaction from the greater public will not be favourable and could generate panic akin to “witch hunts” of the past.

                                                                                  [Original Emphasis]

[8]                  Ms. Ocean supplemented her affidavit with oral submissions.  She said that it was not necessary to have any transcripts of the proceedings before A.C.J. Smith because she really wasn’t challenging what happened during those hearings – or at least was prepared to forego that – but wanted the Court of Appeal to hear the additional information which A.C.J. Smith apparently declined to hear.  Upon questioning by the Court, this additional evidence related to threats against Ms. Ocean from a person or persons in a “twin world”, which were influencing her and events in this world.  This included her allegedly giving false testimony before A.C.J. Smith.

[9]                  Whatever one may make of Ms. Ocean’s submissions regarding the additional evidence she wants to adduce and A.C.J. Smith’s alleged error in not entertaining this material, that does not excuse her from producing a transcript of the hearing and decision which she appeals.  As counsel for Economical put it, A.C.J. Smith set out the background of the case and Ms. Ocean’s refusal to participate in the process – all of which would be necessary for the court to consider in any motion by Ms. Ocean to adduce new or further evidence before this court.

[10]             Moreover, Ms. Ocean’s notice of appeal is not limited to A.C.J. Smith’s costs decision.  Ms. Ocean also appears to challenge the 2011 decision on liability, the appeal of which has already been dismissed.  It is not necessary at this stage to make any comment on whether or not Ms. Ocean may be estopped by res judicata or otherwise from attacking A.C.J. Smith’s decision on liability.  She certainly cannot do so without a transcript.

[11]             The compelling reasons for the need of transcripts expressed by Justice Oland in 2011 NSCA 106 also obtain here: 

[34]   In any event, it is my view that this appeal could not be properly heard or determined without a full transcript of the trial.  The appellant’s suggestion that the appeal panel could simply rely on the trial exhibits, decision and order, so-called “hard evidence” in the court record, does not allow an efficient and just conduct of the appeal and cross-appeal.  The appellant’s grounds claim that witnesses gave false testimony and the trial judge erred in her consideration and acceptance of evidence.  This “hard evidence” without more, will not substantiate or refute perjury and may not serve to show the contradictions the appellant says the trial judge should have recognized.  It would be difficult, if not impossible, for the panel to assess arguments regarding the reliability of evidence and findings of fact or inferences without a transcript of the testimony of witnesses given under direct and cross-examination.

…

[36]   A transcript is essential in order for the panel to fully appreciate the arguments on the grounds relating to the trial judge’s dismissal of the appellant’s requests for matters such as the admission of evidence and rescheduling of the hearing and her abuse of process application.  Otherwise the panel would not have before it the submissions made on the requests which the judge denied, nor her reasons.

[Emphasis Added]

[12]             The motion to set this appeal down is dismissed without costs.

Bryson, J.A.