Citation: Marshall v . Truro (Town), 2009 NSCA 89
Date: 20090903
Docket: CA 310959
Registry: Halifax
Between:
Gregory S. Marshall
Appellant
v.
Town of Truro, Nova Scotia Utility and Review
Board and Attorney General of Nova Scotia
Respondents
and
Ron Wallace Realty Limited
Intervenor
Judge: The Honourable Chief Justice Michael MacDonald, in Chambers
Motion Heard: Motion proceeded by way of written submissions.
Held: Motion dismissed.
Counsel: Gregory S. Marshall, self-represented
Gary Richard, for the respondent Town of Truro
Peter M. Rogers, Q.C., for the intervenor
Respondents Nova Scotia Utility and Review Board and Attorney General of Nova Scotia not participating
Decision:
[1] Justice Bateman of this court denied the appellant Marshall’s motion to extend the time to file his notice of appeal in this matter. Because Justice Bateman’s order disposes of this appeal, I, as Chief Justice, may grant leave to have this order reviewed by a panel of the court. Mr. Marshall has so requested. Civil Procedure Rule 90.38 sets out my authority to grant such leave in appropriate circumstances:
Review of order of judge
90.38 (1) In this Rule 90.38,
(a) a reference to the “Chief Justice” includes a judge designated by the Chief Justice for the purpose of this Rule;
(b) “party” includes an intervenor under Rule 90.19.
(2) An order of a judge of the Court of Appeal in chambers is a final order of the Court of Appeal, subject only to review under this Rule 90.38.
(3) An order of a judge in chambers that disposes of an appeal may be reviewed by a panel of the Court of Appeal, with leave of the Chief Justice.
(4) A party who requests leave to review an order of a judge must file a notice of motion for leave to review with the Chief Justice and deliver the notice to the other parties to the appeal, no more than seven days after the date of the order to be reviewed.
(5) A party who opposes a motion for leave to review must file with the Chief Justice, and deliver to the other parties, a reply no more than seven days after the date of the filing of the motion for leave to review.
(6) The Chief Justice may do any of the following on a motion for leave to review:
(a) dismiss the motion for leave to review;
(b) set the motion down for hearing;
(c) grant leave to review the order of the judge in chambers if the Chief Justice is satisfied that the judge acted without authority under the rules, or the order is inconsistent with an earlier decision of a judge in chambers or the Court of Appeal, or that a hearing by a panel is necessary to prevent an injustice.
(7) The Chief Justice need not give reasons for the determination of a motion under this Rule.
(8) If leave is granted, the Chief Justice must set a time and date for the hearing of the review before a panel of the Court of Appeal and give directions for the filing of factums and other material.
(9) A judge may not sit as a member of the panel of the Court of Appeal hearing an appeal from the judge’s order.
(10) An order granting leave to appeal under this Rule 90.38 is a final order of the Court of Appeal and is not subject to further review.
[2] You will note that pursuant to Rule 90.38(7), I need not give reasons for my determination on such a motion. However, I choose to do so in this case since this is the first such motion under our new Civil Procedure Rules. Specifically I would like to elaborate on the procedure involved and on my role as Chief Justice. I do so in order to provide guidance to future litigants who may be contemplating such motions.
[3] First, however, let me provide some background to Mr. Marshall’s appeal. He objects to a proposed development approved by the Truro Town Council. His appeal to the Nova Scotia Utility and Review Board was dismissed. His intention was to appeal the Board’s decision to this court. However, he missed the filing deadline unfortunately due in large measure to inaccurate advice he received from this court’s Registrar. This prompted his motion to extend before Justice Bateman. In her reasons, Justice Bateman provides this helpful summary of the events leading to the order under review:
¶ 2 Mr. Marshall and Julie Robbins appealed the November 3, 2008 decision of the Truro Town Council which approved a Development Agreement permitting the conversion of the former Success Business College at 100 Victoria Street, Truro into ten residential units. The development proposal had been recommended by town staff as consistent with the Municipal Planning Strategy ("MPS"). After a March 5, 2009 hearing and by written decision dated April 2, 2009 the Nova Scotia Utility and Review Board (the "URB") dismissed the Robbins/Marshall appeal (reported as Robbins (Re), 2009 NSUARB 44).
¶ 3 Upon receiving the Order of the URB Mr. Marshall contacted the Registrar of this Court asking for information about the filing of an appeal. Referring Mr. Marshall to Civil Procedure Rule 90.13(2), the Registrar advised that an appeal must be filed within 25 days as calculated under Rule 94. Mr. Marshall filed his Notice of Appeal on May 8, 2009, which was within the Rule 90 time period. The Registrar subsequently realized that her advice had been in error and immediately advised Mr. Marshall of the mistake in a detailed letter dated May 13, 2009, sent by registered mail. She explained that s. 30(1) of the Utility and Review Board Act, S.N.S. 1992, c. 11 as am. which took precedence over the Rules, provided for a different appeal period. Under the Act, the appeal period expired on May 4, 2009, therefore his Notice of Appeal had been filed out of time.
¶ 4 In that letter the Registrar provided a detailed explanation of the procedure for bringing such a motion; included her own affidavit attesting to the erroneous advice; provided a draft Notice of Motion to Extend the Time for Filing an Appeal; provided copies of two court decisions addressing such applications and included other helpful information. She closed with the following:
If you have any questions or concerns whatsoever regarding the above, please contact me promptly.
I encourage you to bring this motion as soon as possible to ensure that no further delays are incurred in this matter.
¶ 5 Sometime after the May 13th letter Mr. Marshall left two voice mail messages for the Registrar saying that he had been ill and unable to attend to the motion to extend time. Although returning each of his calls, the Registrar was unable to reach him. By June 18 Mr. Marshall had not applied to extend the time for filing the Notice of Appeal. Consequently, the Registrar again wrote to him confirming her May 13th advice to bring the application quickly.
¶ 6 On July 14, 2009 Mr. Marshall filed a Notice of Motion to extend the time, selecting a Chambers hearing date of August 6.
[4] In dismissing Mr. Marshall’s motion, Justice Bateman provided detailed reasons. First she identified the appropriate test for such motions:
¶ 10 The test commonly applied on such applications was summarized by Saunders, J.A., in Chambers, in Jollymore v. Jollymore Estate, 2001 NSCA 116, [2001] N.S.J. No. 296 (Q.L.):
22 In this province, reference is often made to the so‑called three part test for extensions of time in cases such as this. It is said that in order to qualify for such relief the court must be satisfied that:
(1) the applicant had a bona fide intention to appeal when the right to appeal existed;
(2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and
(3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of which being that there is a strong case for error at trial and real grounds justifying appellate interference.
. . .
24 I prefer a less rigid approach. Cases cannot be decided on a grid or chart. Ultimately the objective must be to do justice between the parties. I agree with the observations of Justice Hallett of this court in Tibbetts v. Tibbetts (1992), 112 N.S.R. (2d) 173 at para. 14:
There is nothing wrong with this three part test but it cannot be considered the only test for determining whether time for bringing an appeal should be extended. The basic rule of this court is as set out by Mr. Justice Cooper in the passage I have quoted from Scotia Chevrolet Oldsmobile Ltd. v. Whynot, 1 N.S.R. (2d) 1041, supra. That rule is much more flexible. The simple question the court must ask on such an application is whether justice requires the application be granted. There is no precise rule. The circumstances in each case must be considered so that justice can be done. A review of the older cases which Mr. Justice Cooper referred to in Scotia Chevrolet Oldsmobile Ltd. v. Whynot and which Mr. Justice Coffin reviewed in Blundon v. Storm, 1 N.S.R. (2d) 621, make it abundantly clear that the courts have consistently stated, for over 100 years, that this type of application cannot be bound up by rigid guidelines.
[5] She then applied this test and in the process identified several concerns. Her first concern involved Mr. Marshall’s delay in filing the motion to extend. She highlighted the fact that our Registrar took prompt action to correct the erroneous information and to provide further guidance:
¶ 11 I am satisfied that Mr. Marshall had a bona fide intention to appeal within the proper appeal period. He was in contact with the Registrar seeking assistance and but for the misinformation, I am satisfied would have filed within the proper date.
¶ 12 However, the lengthy delay between the Registrar’s letter of May 13 advising of the need to apply for an extension and the date of the actual motion (July 14/August 6) is troubling. Mr. Marshall says that he does not recall receiving a first notice of the registered letter. It was not until he received a second notice, in late May that he picked up the letter from Ms. Boucher. Mr. Marshall candidly acknowledges that he did not open that letter until a day or two later. According to his affidavit evidence, he was unable to proceed with the motion because he had fallen ill at that same time for a period of about two weeks. In a supplemental affidavit filed the morning of the Chambers hearing Mr. Marshall attached a note from a physician stating that he had medical appointments on June 3 and June 10 and that “He was unable to attend court due to an acute infection May 28/09 to June 12/09.”
¶ 13 As to the Registrar’s second letter of June 18, 2009, Mr. Marshall says that he was then unable to pursue the motion because he was on a “sort of death watch” for his father, who lived in Ontario, and died on July 6, 2009. On July 14 Mr. Marshall finally filed the Notice of Motion, before leaving for funeral services in Ontario. He scheduled the hearing for August 6 by which time he expected to return.
¶ 14 Counsel for the intervenor submits that, while Mr. Marshall’s circumstances evoke sympathy, it is difficult to accept that at no time during the period from the time of the Registrar’s May 13th letter to July 14th was he able to take the minimal steps required to initiate the application for an extension of time. Counsel refers to the fact that, in her letter, the Registrar had provided case law, detailed instructions on the procedure, a draft Notice of Motion, her own affidavit, advice that he should submit his own affidavit as well as emphasizing the need to attend to this right away. Very little remained to be done by Mr. Marshall to prepare the Motion. It was open to him to seek the assistance of his co-appellant before the Board or to retain counsel for that limited purpose. I am not satisfied that Mr. Marshall has provided a sufficient explanation for the lengthy delay.
[6] Finding no error apparent on the face of the Board’s decision, she then expressed concerns regarding the proposed grounds of appeal:
¶ 15 Moving to consider whether there are exceptional circumstances militating in favour of an extension of the time, I have reviewed the Board’s decision and the grounds of appeal to determine if there is a strong case for error by the board and real grounds justifying appellate interference. At the hearing before the Board, which Mr. Marshall conducted on behalf of himself and Ms. Robbins, he called one witness, Ruby Duguay, who is also a resident of the 100 Victoria Road neighbourhood. Her affidavit is produced in full in the reasons for judgment. In eight paragraphs she provides her opinion as to why the Town should not have approved the development. In addition to presenting this witness Mr. Marshall cross-examined the Town Planner who testified at the hearing.
¶ 16 In his reasons on the appeal, Board Member David Almon, who conducted the appeal hearing, correctly cites the standard by which the Board must review Council’s decision, referring in that regard to several decisions of this Court. As he points out, the Board is not entitled to substitute its own views for that of the Town Council but rather must consider whether municipal council interpreted and applied the policies in a language that they could reasonably bear, citing Heritage Trust of Nova Scotia et al. v. Nova Scotia (Utility and Review Board) (1994), 128 N.S.R. (2d) 5 (C.A.). He reviews the submissions of both the appellants and the Town of Truro and includes a detailed appendix from the Town Planner’s report on the proposed development which tracked his oral evidence before the Board. In that appendix the Planner cites each relevant policy from the MPS and relates it to the proposed development. The Board accepted the Planner’s evidence. It suffices to say that error is not apparent on the face of the decision.
¶ 17 Turning to the question of whether there are real grounds justifying appellate intervention, Mr. Marshall puts forward four grounds of appeal:
(1) The NSUARB erred in law in its interpretation and application of Truro’s Municipal Planning Strategy (MPS) with respect to its consideration of Town Council’s decision.
(2) The NSUARB erred in holding that Town Council’s decision reasonably carries out the intent of the MPS.
(3) Truro’s MPS suffers from uncertainty, inherent ambiguity, internal contradictions, and is inconsistent with the rule of law and should be declared unconstitutional insofar as it purports to support the Town’s decision in this matter.
(4) Town Council’s decision constitutes one or more violations of Section 7 of the Charter of Rights and Freedoms and neither the Municipal Government Act or the MPS are sufficient to justify these violations.
¶ 18 I am unable to discern from Mr. Marshall’s first two grounds the nature of the alleged legal or jurisdictional error(s). Although invited to do so during the hearing of his application, Mr. Marshall was unable to articulate how the Board had erred. He did refer to alleged procedural errors by the Council. The only specific suggestion of error by the Board was Mr. Marshall’s complaint that, in the reasons, the Board did not address his submission that Council should not have considered the proposed development because architectural drawings are required by the MPS and were not submitted. Generally such procedural errors, if they occurred, would be the subject of an application to the Supreme Court for judicial review and not a matter for appeal to the Board, save in the most egregious case. The two grounds purporting to challenge the constitutionality of the MPS and alleging a s. 7 Charter violation were not issues before the Board and appear to have no foundation in the record. They are not appropriate grounds of appeal in these circumstances.
¶ 19 I recognize that on such an application it is not appropriate to attempt an in depth assessment of the merits of the appeal. However, this is not a case where the grounds of appeal are articulated with precision and suggest specific error but the court is unable to assess their possible merit absent a full review of the record. Here the grounds are generic and Mr. Marshall, despite being provided with ample opportunity to do so, could not provide an example of reviewable error. An appellant should not be permitted to frustrate the inquiry into a serious case for error by proposing grounds of appeal so generic that it is impossible to discern the alleged error.
[7] Finally Justice Bateman attempted to balance Mr. Marshall’s interests with those of the developer who delayed the project pending the outcome of this appeal process. In the end, for her, the just result was to dismiss the motion. She explains:
¶ 20 Thus, to this point I am not satisfied that the delay has been explained nor that there is a strong case for error. But ultimately justice must be done as between the parties. The position of all parties must be considered, not just that of the appellant. Had Mr. Marshall applied for the extension within a reasonably prompt time after the Registrar’s May 13 letter I would have granted the extension notwithstanding my concerns about the grounds of appeal. Indeed I would have expected opposing counsel to consent to the extension. But that is not where we are now. Mr. Marshall has obtained the tapes of the hearing but is unable to provide an estimate of the time required for transcription or when he might have an appeal book prepared. Significant time has passed which would push a potential appeal hearing well into early 2010 on a most optimistic schedule. While the intervenor was aware that a Notice of Appeal had been filed, Mr. Marshall’s inaction in the face of the Registrar’s letter would create a reasonable expectation that he had abandoned his intention to appeal. The tenure of the Department of Social Services grant associated with the project is uncertain. The intervenor has been unable to move forward with the project for three months since acquiring the interest in the development and, if the extension is granted, will lose the balance of the 2009 building season.
¶ 21 Mr. Marshall is obviously disappointed with the result. He is sincere in his belief that the Town was wrong to enter into the Development Agreement and that the Board erred in confirming the Town’s decision. As counsel for the intervenor points out, the extent of the delay here exemplifies the parties’ different interests in this matter. Delay is of little consequence to Mr. Marshall because it serves to stall a project which he hopes will not go ahead. To that extent, moving this matter along has been a relatively low priority. This is not to suggest that his delay here was calculated for that purpose. On the other hand, delay operates against the intervenor which has a significant financial interest at stake.
¶ 22 Respectfully, I am not persuaded that Mr. Marshall understands the nature of legal or jurisdictional error or the standard of review which this Court must apply to decisions of the Board. Consequently, I do not believe he is able to appropriately assess the merits of his proposed appeal. This is not uncommon where a party does not have the advice of counsel and is not subject to the sober second thought dictated by potential legal fees.
¶ 23 After considering and weighing the various factors which must inform my exercise of discretion here, I dismiss Mr. Marshall’s motion to extend the time for filing his appeal. My decision is driven by a combination of the lengthy delay in taking corrective action; the absence of any, let along a strong case for error on the face of the reasons of the Board; the completely generic nature of the grounds of appeal and Mr. Marshall’s inability to particularize any potentially reviewable error by the Board. The mis-advice by the Registrar about the appeal period explains only a limited portion of the delay, was quickly corrected and is not an exceptional circumstance sufficient to overcome the significant frailties of this motion. The intervenor should not be subjected to the further delay and expense occasioned by such an appeal.
[8] With this backdrop, I must consider the Chief Justice’s role as prescribed under Rule 90.38. First, let me briefly review the process involved in seeking leave under Rule 90.38(3). Commencing the process is straight forward. The party seeking leave within prescribed time lines must file a notice of motion with the Chief Justice to which the opposing parties may file a reply, also within prescribed time lines. I then may dismiss the motion based solely on the material filed or should oral submissions be in order, set the motion down for hearing. I expect that in most instances, as in this case, the filed materials would suffice and the need to call a hearing would be exceptional. In any event, following my review, I may dismiss the motion or grant leave. Here again are the relevant provisions:
(4) A party who requests leave to review an order of a judge must file a notice of motion for leave to review with the Chief Justice and deliver the notice to the other parties to the appeal, no more than seven days after the date of the order to be reviewed.
(5) A party who opposes a motion for leave to review must file with the Chief Justice, and deliver to the other parties, a reply no more than seven days after the date of the filing of the motion for leave to review.
(6) The Chief Justice may do any of the following on a motion for leave to review:
(a) dismiss the motion for leave to review;
(b) set the motion down for hearing;
(c) grant leave to review the order of the judge in chambers if the Chief Justice is satisfied that the judge acted without authority under the rules, or the order is inconsistent with an earlier decision of a judge in chambers or the Court of Appeal, or that a hearing by a panel is necessary to prevent an injustice.
[9] When then should such motions be granted? As noted above, Rule 90.38(6)(c) contemplates three situations. The first two are straight forward; namely when the judge acted without authority or contrary to existing jurisprudence. The third situation - to prevent an injustice - is much more general and requires some elaboration.
[10] It occurs to me that to warrant a review by a panel of this court, an aggrieved party must present a highly compelling case. In other words ,the potential for injustice must be clear and significant. Furthermore, one must presume that any potential injustice would have been obvious to the judge who granted the order under review. Therefore, I would expect to grant such relief only in very exceptional circumstances. Otherwise, this provision might be simply viewed as an opportunity for a rehearing; a consequence that would be clearly unintended and unnecessary. In fact, it would be ill advised to allow such a provision to serve as an opportunity for a rehearing. Indeed, courts in similar contexts have discouraged such approaches.
[11] For example, in Chandos Construction Ltd. v. Alberta (Minister of Alberta Infrastructure), 2008 ABCA 14, the Alberta Court of Appeal noted:
¶ 5 This Court has, on numerous occasions, emphasized that exceptional circumstances are required before an application for re‑argument will be granted, and that re‑hearings are to be discouraged: Strichen v. Stewart, 2005 ABCA 201, 367 A.R. 188; Portage Credit Union Ltd. v. D.E.R. Auctions Ltd. (#2) (1994), 18 Alta L.R. (3d) 185.
¶ 6 Hunt, J.A., summarized the governing principles in Luscar Ltd. v. Smoky River Coal Limited, 1999 ABCA 252, 244 A.R. 196 at para. 4:
Those authorities make it clear that leave should not be granted lightly. There must be a reason for the re‑argument: Nova, An Alberta Corporation v. Guelph Engineering Co. and Daniel Valve Co. et al. (1989), 102 A.R. 350 at 351 (C.A.). Among the factors to be taken into account are whether there is a risk of a miscarriage of justice (Terra Energy Ltd. v. Kilborn Engineering Alberta Ltd. [1999] A.J. No. 444 (Q.L.) at para. 6 (C.A.)); whether the new arguments would affect the outcome (Arrowhead Auto & Truck Parts Ltd. v. Calgary (City) (1997), 196 A.R. and 141 W.A.C. 57 (C.A.) at 57‑58)); and whether the parties had the opportunity to address the issue in the original hearing (Nova, supra, at 352).
[12] As well, the Manitoba Court of Appeal in Willman v. Ducks Unlimited (Canada), 2005 MBCA 13, recently observed:
¶ 3 The principles regarding rehearings, or reconsiderations, as they were sometimes called, were expressed by Twaddle J.A. in Abraham v. Wingate Properties Limited (1985), 37 Man.R. (2d) 267 (C.A.) (at para. 1):
¼ this court will not in the ordinary course grant an application for reconsideration unless there is a patent error on the face of the reasons delivered or a point for argument not raised at the hearing of the appeal and which arises out of the judgment delivered, which point could not reasonably have been foreseen and dealt with at the original hearing.
...
¶ 9 The facts of any particular situation must be carefully and, I suggest, critically examined in order to determine if the circumstances are so exceptional as to warrant a rehearing. The focus should be on ascertaining whether, for example, the court has made a patent error on a central point, or the appeal was decided on a legal issue which counsel truly had no opportunity to address, or there has been, on a material aspect, a demonstrable oversight of fact or law by the court, such as an error in calculation, or reliance on a repealed statute. Bearing in mind the public interest in finality of litigation, I respectfully agree with the rigorous approach articulated by the Privy Council in In re Payment of Compensation to Civil Servants under Art. 10 of Agreement for a Treaty Between Great Britain and Ireland, [1929] A.C. 242 (H.L.), "such an indulgence [rehearing] will be granted in very exceptional circumstances only. It is of the nature of an extraordinarium remedium" (at p. 252). In my view, the threshold which an applicant must cross should be high, not only to avoid the risk of rehearing requests being made following an appeal judgment, almost as a matter of course, but, more importantly, to ensure that rehearings are granted only in exceptional circumstances, where the interests of justice manifestly compel such a course of action.
¶ 10 Circumstances beyond those discussed herein may be identified that in other cases might be so exceptional as to warrant a rehearing. Confining this summary of factors to those that might be relevant here, on the present state of the law, any of the following circumstances should be recognized as exceptional, thus warranting a rehearing (assuming the certificate of decision has not yet been filed):
1) there is a patent error on a material point on the face of the reasons;
2) the appeal was decided on a point of law that counsel had no opportunity to address, and which point could not have reasonably been foreseen and dealt with at the hearing; or
3) the court has clearly overlooked or misapprehended the evidence or the law in a significant respect and there is a consequential serious risk of miscarriage of justice.
[13] Therefore, let me now consider the merits of Mr. Marshall’s motion. As noted, I feel amply prepared to resolve this matter without the need of an oral hearing. I have had the opportunity to review the file and the benefit of detailed submissions from Mr. Marshall, the Town and the developer. The respondent Board and Attorney General do not intend to participate.
[14] Turning to the three potential avenues of relief contemplated under Rule 90.38(6)(c), it is clear that Justice Bateman acted within her authority and applied the appropriate jurisprudence. The only remaining consideration therefore is whether a review is necessary to prevent an injustice. On this score, Mr. Marshall’s motion must fail. Justice Bateman in her decision carefully balanced the interests of all the parties. She rendered a judgment that Mr. Marshall views as unfortunate but in my view is not unjust. This is not one of those exceptional circumstances set out above that commands action to prevent an injustice.
[15] I dismiss the motion for leave to have this decision reviewed by a panel of this court.
MacDonald, C.J.N.S.