SUPREME COURT OF Nova Scotia
Citation: Nagel v. Nova Scotia (Community Services), 2023 NSSC 71
Date: 20230228
Registry: Halifax
Docket: Hfx No. 515608
Between:
Denise C. Nagel
Applicant
and
Nova Scotia (Department of Community Services) and
Assistance Appeal Board (Nova Scotia)
Respondents
DECISION
| Judge: |
The Honourable Justice Jamie Campbell |
| Heard: |
February 21, 2023, in Halifax, Nova Scotia |
| Counsel: |
Denise Nagel, self-represented Applicant Myles Thompson, for the Respondent (Dept. of Community Services) Alison Campbell, for the Respondent (Attorney General of Nova Scotia)
|
|
|
|
By the Court:
[1] The application brought by Denise Nagel is for state-funded counsel or, in the alternative for an order that an amicus curiae be appointed to assist her in proceeding with a judicial review of a decision of the Assistance Appeal Board.
Background
[2] Ms. Nagel was a recipient of social assistance. In October 2019, before her 60th birthday the Department of Community Services (DCS) informed her that she was required to apply for Canada Pension Plan retirement benefits and that her assistance payments were being put on hold until she made that application.
[3] Ms. Nagel successfully appealed to the Assistance Appeal Board. In a decision dated February 13, 2020, the Board concluded that DCS had erred in finding that Ms. Nagel was not eligible for assistance. Potential ineligibility could only arise when Ms. Nagel turned 60 years old in March 2020. That was when she would be eligible to receive CPP retirement benefits. The Board found that DCS had set a deadline that was arbitrary and until DCS could show that Ms. Nagel was eligible for but had not applied for CPP benefits, the issue of eligibility was premature.
[4] Ms. Nagel appeared to have been successful on the appeal.
[5] But she filed a judicial review of that decision on March 25, 2020. The judicial review hearing was held on December 21, 2020. Justice Jamieson issued an oral decision upholding the decision of the Assistance Appeal Board. The judicial review was denied.
[6] A few days before that hearing, on December 18, 2020, DCS sent a letter to Ms. Nagel telling her that their records showed that she had stopped receiving her CPP retirement benefits as of August 2020. They noted that the requirement for Ms. Nagel to apply for CPP benefits had been suspended pending the Court’s decision. Ms. Nagel’s assistance eligibility calculation was adjusted to reflect that she was no longer getting CPP from August 2020 through December 2020. A payment of $1,636.68 was made to her to compensate for the underpayment.
[7] Then, in January 2021 legal counsel for DCS in the judicial review noted an error in the December 18, 2020 letter. The total amount was still correct though.
[8] Ms. Nagel requested a review of the December 18, 2020, letter by Decision review services with the DCS. A Decision Review Report was issued on May 19, 2021. That decision upheld the calculations as reflecting the assistance that Ms. Nagel was entitled to receive from January 2020 to January 2021. On June 14, 2021 Ms. Nagel requested a judicial review of the May 19, 2021 Decision Review. The Assistance Appeal Board gave its decision on May 5, 2020. That is the decision that is now the subject matter of this judicial review.
Assistance Appeal Board Decision
[9] In the decision the Board set out the procedural background.
[10] The Board appeared to express some frustration in trying to understand what might be the nature of Ms. Nagel’s concerns. The analysis by the Board bears being set out in its entirety.
This case has been ongoing, and the appellant, Ms. Nagel, has submitted an extraordinary amount of documentation to the Department, to the Appeal Board, and to the Supreme Court. The quantity and nature of the documentation has tended to obscure rather than clarify the matters at hand. In order to bring some order to the reasons for this appeal, the issue of eligibility seems to be the most salient matter. In his presentation on behalf of the Department, Mr. Thompson made clear that all maters regarding eligibility had been addressed. In fact Ms. Nagel did not deny this, but reiterated the point that other matters were unaddressed.
She felt that the Appeal Board could, and should, comment on Charter matters, but was not clear what those matters might be. In any event, this Board, at this time, has no mandate to address constitutional matters. When asked, in order to seek some clarity, how she wanted this particular hearing to end, she seemed unsure. She asked at the outset of the hearing if she could make further submissions (after the hearing), and in answer to her question as to her desired outcome had cases she felt were relevant and that she wanted to discuss. She felt the withholding of eligibility could mean that people could go without food, and also stated that she might appeal to the Social Security Tribunal of Canada.
The concerns raised by Ms. Nagel often moved into areas clearly governed by federal regulations, and while they may have been valid, could not be said to be part of this appeal. As mentioned, she has made a number of FOIPOP requests regarding information from DCS. This does not appear to be a concern of the Appeal Board at this time.
It should be noted that in her request to secure as much supporting information as possible, Ms. Nagel requested postponement to four scheduled hearings July 15/21, August 24/21, August 31/21, and January 28/22. She also did not attend a pre-hearing conference on January 14/22. This is pointed out only to emphasize that the act of gathering more and more information to support her opinions has eclipsed the need to address any specific, clearly defined issue.
[11] The Board concluded that the appeal was “not clearly presented, or reasonable”. Ms. Nagel was currently receiving the correct amount of assistance. That would render any appeal on the matter moot. The Board noted that is understood that Ms. Nagel has concerns about how citizens are treated by various institutions, but that does not mean that the Appeal Board can provide a remedy.
Issues
[12] Ms. Nagel is now requesting legal counsel to help her with the judicial review of that Appeal Board decision. She is asking either for “state-funded counsel” or that an amicus curiae be appointed assist her.
State-Funded Counsel
[13] In criminal matters a Rowbotham application is an application for a conditional stay of proceedings until funding for counsel is provided at the same rate as paid by Legal Aid.
[14] Ms. Nagel has cited several decisions in which such orders have been made. They involve criminal cases and not civil ones. Even in a criminal proceeding an order granting state-funded counsel outside the provincial Legal Aid system is rare and exceptional. Legal Aid is responsible for determining whether a person will be represented by counsel at the expense of the taxpayer. There are processes in place to determine whether Legal Aid will become involved in a case.
[15] A person accused of a criminal offence does not have a constitutional right to have state-funded counsel at trial. And there is no right to state-funded counsel in civil or administrative proceedings either.
[16] While Rowbotham applies to criminal matters it has also been applied in the context of child welfare. In P.B. v. Nova Scotia (Minister of Community Services), 2014 NSSC 182, Justice Dellapinna dealt with a request for state-funded counsel by a parent whose children had been taken into care by the Minister. He referred to the decision in New Brunswick (Minister of Health and Community Services) v. G.(J.) [J.G.], [1999] 3 S.C.R. 46, S.C.J. No. 47 (S.C.C.), and set out the analysis that should be followed under that decision. The first question is whether the applicant wants a lawyer. If yes, the question is then whether the person has exhausted all possible avenues to obtain state-funded counsel such as that available through Legal Aid. If yes, the next question is whether the person is not able to afford to retain counsel. If a person has exhausted all other avenues and cannot afford a lawyer, the court then must ask whether there is any state action which threatens the person’s Section 7 right to security of the person. Then, if there is state action that does threaten the person’s security rights the court must decide whether the person would receive a fair hearing considering the seriousness of the interests at stake, the complexity of the proceedings, the capabilities of the person and the ability of the judge at the hearing to assist them within the limits of the judicial role.
[17] In Ms. Nagel’s case, if it were assumed that she had exhausted all avenues to obtain counsel paid for by the state and was not able to afford a lawyer herself, there has been no state action in this case that threatens the security of the person. Justice Dellapinna, in P.B. found that government actions seeking to take custody of a child from a parent, did engage Section 7 rights under the Charter. Section 7 protects both the physical and psychological integrity of the person. Taking a child away from a parent restricts the parent’s right to security because it amounts to serious state-imposed psychological stress.
[18] There does not appear to be any caselaw to support the proposition that Section 7 of the Charter imposes on government a positive obligation to ensure that each person enjoys life, liberty and the security of the person. Section 7 is interpreted as restricting the state’s right to deprive people of these things. As noted in Gosselin v. Quebec (Attorney General), 2002 SCC 84, Section 7 may one day be interpreted as including positive obligations but it has not yet been.
[19] Ms. Nagel is seeking, or appears to be seeking, declarations about the infringement of her rights under the Charter. The issue in this case is not one that implicates the right to security of the person as that term has been interpreted in Section 7 jurisprudence. On that basis the application for state-funded counsel should be denied.
[20] An application for state-funded counsel will be successful only in exceptional circumstances. They usually involve criminal matters and have been extended to include child protection matters. Ms. Nagel did not provide any cases in which state-funded counsel was ordered in a civil or administrative law matter analogous to this one.
[21] The application is denied.
Amicus Curiae
[22] The role of an amicus curiae is to assist the court, not to assist a party. The appointment must be essential to the judge in discharging their judicial functions in the case. They should be used sparingly and with caution and only in response to specific and exceptional circumstances, Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, at para. 47.
[23] A lawyer in this case might be able to rephrase arguments made by Ms. Nagel in a way that is perhaps somewhat more precise or directed. A lawyer would likely be helpful, as is almost always the case. But amicus curiae are not appointed to make things go more smoothly in cases involving self-represented litigants. The appointment must be essential.
[24] Ms. Nagle’s approach as an unrepresented litigant is, while not unique, at least remarkable. She is not able to communicate by telephone, text, fax or email and she says that her regular mail delivery is not at all reliable. Someone keeps taking her mail. Counsel have made arrangements by which she comes into the Department of Justice office each Thursday to pick up materials. But Ms. Nagle has demonstrated an inclination to make frequent filings, produce substantial packages of documents, lengthy briefs and substantial books of authorities. Some of the arguments that Ms. Nagel advances may be either extraordinarily complex or just so convoluted as to approach the level of incomprehensibility.
[25] The way that she has chosen to present her case has made it seem complex. That however does not justify the appointment of an amicus curiae.
[26] The application is denied.
Conclusion
[27] The parties should contact court scheduling to set a date for a Motion for Directions before the next available judge. At that time, further dates for motions can be scheduled.
Campbell, J.