Brooks v. Fredericton Police Force et al., (2015) 433 N.B.R.(2d) 371 (CA)

• Judge: Larlee, Richard and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 28, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 433 N.B.R.(2d) 371 (CA);2015 NBCA 18

Brooks v. Fredericton Police Force (2015), 433 N.B.R.(2d) 371 (CA);

    433 R.N.-B.(2e) 371; 1130 A.P.R. 371

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. AP.006

Renvoi temp.: [2015] N.B.R.(2d) TBEd. AP.006

Sarah Elizabeth Brooks (appellant) v. The Law Society of New Brunswick, Peter Seheult and New Brunswick Police Commission (respondents)

(78-13-CA; 2015 NBCA 18)

Indexed As: Brooks v. Fredericton Police Force et al.

Répertorié: Brooks v. Fredericton Police Force et al.

New Brunswick Court of Appeal

Larlee, Richard and Green, JJ.A.

April 2, 2015.

Summary:

Résumé:

The plaintiff brought an action against several people and organizations, claiming, inter alia, that they had caused her to suffer several "mental illnesses" and "kept her ill and a victim of crime and wrongdoing by others". She alleged that her problems stemmed from (1) hostile divorce proceedings wherein her former solicitor conspired with her ex-husband's solicitor to defraud her of the correct amount of spousal support, and (2) an evening when she called the Mental Health Services Mobile Crisis Unit but did not get an answer and had to leave a message. The New Brunswick Police Commission and Seheult (chair of the Commission), and the Law Society of New Brunswick moved for orders striking the plaintiff's Amended Statement of Claim.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2013), 405 N.B.R.(2d) 175; 1050 A.P.R. 175, allowed the motions. The plaintiff appealed and filed a motion in which she sought various forms of relief, including that the Court of Appeal panel recuse itself from hearing the appeal.

The New Brunswick Court of Appeal dismissed the motion and the appeal.

Barristers and Solicitors - Topic 7661

Regulation - Liability of governing bodies - General - [See second Practice - Topic 2230 ].

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - [See Courts - Topic 685 ].

Courts - Topic 685

Judges - Disqualification - Bias - General - Brooks brought an action against several people and organizations, claiming, inter alia, that they had caused her to suffer several "mental illnesses" and "kept her ill and a victim of crime and wrongdoing by others" - She alleged that her problems stemmed from, inter alia, hostile divorce proceedings wherein her former solicitor conspired with her ex-husband's solicitor to defraud her of the correct amount of spousal support - A motion judge struck Brooks' Amended Statement of Claim for failing to disclose a cause of action, and because the claim was frivolous and vexatious - Brooks appealed and moved to have the Court of Appeal panel recuse itself for bias - She accused the court of conspiring and colluding to conceal the alleged fraud in her divorce proceedings, and advised that she would report the panel to the Canadian Judicial Council if it ruled against her motion for recusal - The New Brunswick Court of Appeal dismissed the motion - Brooks' threat fell on deaf ears, as judges had a duty to apply the law as they understood it without fear or favour, and without regard to whether the decision was popular or not - Each judge of the panel concluded that his or her state of mind was disinterested in the outcome of the appeal and open to persuasion by the evidence and submissions - An informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that there was a probability of bias - See paragraphs 4 to 11.

Courts - Topic 687

Judges - Disqualification - Bias - By appeal court judge - [See Courts - Topic 685 ].

Evidence - Topic 2200

Special modes of proof - Judicial notice - General principles - A motion judge struck the plaintiff's statement of claim for failing to disclose a cause of action - The plaintiff appealed, arguing that the motion judge failed to apply judicial notice - The New Brunswick Court of Appeal dismissed the appeal, stating that "Judicial notice may be taken of notorious and undisputed facts, or of facts the accuracy of which can be demonstrated by resort to readily accessible sources of indisputable reliability ... [I]n this case, judicial notice could not be used to fill any of the gaps in the abysmal evidentiary record presented by the appellant to the motion judge." - See paragraph 21.

Police - Topic 6621

Police Commission and R.C.M.P. Commissioner - Duties and powers - General - [See first Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - Brooks brought an action against several people and organizations, claiming, inter alia, that they had caused her to suffer several "mental illnesses" and "kept her ill and a victim of crime and wrongdoing by others" - She alleged that her problems stemmed from (1) hostile divorce proceedings wherein her former solicitor conspired with her ex-husband's solicitor to defraud her of the correct amount of spousal support, and (2) an evening when she called the Mental Health Services Mobile Crisis Unit but did not get an answer and had to leave a message - She claimed that Seheult, as chair of the New Brunswick Police Commission, had "behaved negligently, breached public trust and disobeyed a statute" - The Commission and Seheult moved for an order striking Brooks' Amended Statement of Claim as against them - The motion judge allowed the motion - There was no inference of bad faith in Brooks' claim - Her action was therefore statute barred pursuant to s. 33.1 of the Police Act - The New Brunswick Court of Appeal dismissed Brooks' appeal - See paragraph 18.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - Brooks brought an action against several people and organizations, claiming, inter alia, that they had caused her to suffer several "mental illnesses" and "kept her ill and a victim of crime and wrongdoing by others" - She alleged that her problems stemmed from (1) hostile divorce proceedings wherein her former solicitor conspired with her ex-husband's solicitor to defraud her of the correct amount of spousal support, and (2) an evening when she called the Mental Health Services Mobile Crisis Unit but did not get an answer and had to leave a message - The Law Society of New Brunswick moved for an order striking Brooks' Amended Statement of Claim as against it - The motion judge allowed the motion - The pleadings failed to disclose a cause of action against the Law Society - Although not stated, it was possible that Brooks was relying on s. 5 of the Law Society Act to support her claim - However, s. 5 imposed a duty of care to the public as a whole and not a private duty of care to individuals - The New Brunswick Court of Appeal dismissed Brooks' appeal - See paragraph 19.

Practice - Topic 6924

Costs - General principles - Duty to provide reasons for cost award - A motion judge struck the plaintiff's statement of claim for failing to disclose a cause of action, and ordered her to pay costs of $1,000 to each of the two defendants - The plaintiff appealed, arguing that the costs award could not be maintained because the motion judge did not give reasons for ordering costs - The New Brunswick Court of Appeal dismissed the appeal - The motion judge simply followed the general rule that costs followed the event - Where a judge followed the general rule and the award was not inordinately high or low, the absence of reasons, by itself, did not demonstrate an error in the exercise of judicial discretion - See paragraph 22.

Avocats et notaires - Cote 7661

Reglementation - Responsabilité des corps gouvernants - Généralités - [Voir Barristers and Solicitors - Topic 7661 ].

Police - Cote 6621

Commission de police - Devoirs et pouvoirs - Généralités - [Voir Police - Topic 6621 ].

Preuve - Cote 2200

Modes de preuve spéciaux - Connaissance d'office - Principes généraux - Généralités - [Voir Evidence - Topic 2200 ].

Procédure - Cote 2230

Plaidoiries - Radiation des plaidoiries - Motifs - Défaut de révéler une cause d'action ou un moyen de défense - [Voir Practice - Topic 2230 ].

Procédure - Cote 6924

Dépens - Principes généraux - Obligation d'indiquer les motifs - [Voir Practice - Topic 6924 ].

Tribunaux - Cote 592

Juges - Devoirs - Tenir des audiences équitables et impartiales - [Voir Courts - Topic 592 ].

Tribunaux - Cote 685

Juges - Récusation - Partialité - Généralités - [Voir Courts - Topic 685 ].

Tribunaux - Cote 687

Juges - Récusation - Partialité - Par un juge de la Cour d'appel - [Voir Courts - Topic 687 ].

Cases Noticed:

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 3].

R. v. Langlais (M.) (2008), 328 N.B.R.(2d) 201; 841 A.P.R. 201; 2008 NBCA 20, refd to. [para. 3].

R. v. Black (D.M.) (2010), 360 N.B.R.(2d) 132; 930 A.P.R. 132; 2010 NBCA 36, leave to appeal refused (2011), 416 N.R. 399 (S.C.C.), refd to. [para. 3].

R. v. Black (D.M.) (2010), 363 N.B.R.(2d) 316; 936 A.P.R. 316; 2010 NBCA 65, leave to appeal refused (2011), 422 N.R. 387 (S.C.C.), refd to. [para. 3].

R. v. Hachey (T.) (2012), 383 N.B.R.(2d) 197; 991 A.P.R. 197; 2012 NBCA 14, refd to. [para. 3].

C.M.H. v. J.R.H. (2012), 393 N.B.R.(2d) 154; 1017 A.P.R. 154; 2012 NBCA 71, refd to. [para. 3].

R. v. Downey (D.R.) (2012), 392 N.B.R.(2d) 238; 1016 A.P.R. 238; 2012 NBCA 78, refd to. [para. 3].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 6].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, refd to. [para. 10].

Hamalengwa v. Bentley et al., [2011] O.T.C. Uned. 4145; 2011 ONSC 4145, refd to. [para. 18].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 19].

Vihvelin v. New Brunswick Community College et al. (2015), 435 N.B.R.(2d) 75; 1134 A.P.R. 75; 2015 NBCA 17, refd to. [para. 19].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 19].

Cooper v. Hobart - see/voir Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 19].

Sewell v. ING Insurance Co. of Canada - see/voir Sewell v. Sewell.

Sewell v. Sewell (2007), 314 N.B.R.(2d) 330; 812 A.P.R. 330; 2007 NBCA 42, refd to. [para. 19].

Deer Island Credit Union Ltd. v. Simson, Cumming, Webber et al. (2012), 395 N.B.R.(2d) 76; 1023 A.P.R. 76; 2012 NBCA 92, leave to appeal refused (2013), 453 N.R. 398 (S.C.C.), refd to. [para. 19].

Modern Construction (1983) Ltd. v. Enbridge Gas New Brunswick Inc. et al. (2003), 264 N.B.R.(2d) 145; 691 A.P.R. 145; 2003 NBCA 78, refd to. [para. 19].

Spencer v. Laforge - see/voir Caissie v. Sénéchal Estate et al.

Caissie v. Sénéchal Estate et al. (2001), 237 N.B.R.(2d) 232; 612 A.P.R. 232; 2001 NBCA 35, refd to. [para. 19].

Gaudet et al. v. Dugas (2014), 416 N.B.R.(2d) 389; 1079 A.P.R. 389; 2014 NBCA 7, refd to. [para. 20].

United States v. Morgan (1941), 313 U.S. 409, refd to. [para. 20].

Murray v. New Brunswick Police Commission (2012), 389 N.B.R.(2d) 372; 1008 A.P.R. 372, refd to. [para. 21].

MacWilliams v. AMEC Americas Ltd. (2012), 388 N.B.R.(2d) 254; 1006 A.P.R. 254; 99 C.C.E.L.(3d) 171; 2012 NBCA 46, leave to appeal refused (2012), 445 N.R. 392 (S.C.C.), refd to. [para. 21].

Beaverbrook Canadian Foundation v. Beaverbrook Art Gallery (2006), 302 N.B.R.(2d) 161; 784 A.P.R. 161; 2006 NBCA 75, refd to. [para. 22].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 22].

Johnson v. State Farm Fire and Casualty Co. (2015), 429 N.B.R.(2d) 251; 1119 A.P.R. 251; 2015 NBCA 4, refd to. [para. 22].

Newman v. Tibbetts (2005), 283 N.B.R.(2d) 63; 740 A.P.R. 63; 2005 NBCA 37, refd to. [para. 22].

Acadia Marble, Tile & Terrazzo Ltd. v. Oromocto Property Developments Ltd. (1998), 205 N.B.R.(2d) 358; 523 A.P.R. 358 (C.A.), refd to. [para. 22].

Flieger v. Adams (2012), 387 N.B.R.(2d) 322; 1001 A.P.R. 322; 2012 NBCA 39, refd to. [para. 22].

J.H. v. T.H. (2014), 422 N.B.R.(2d) 388; 1096 A.P.R. 388; 2014 NBCA 52, refd to. [para. 24].

Syndicat canadien de la Fonction publique, section locale 1773 v. Shediac (Ville) (2005), 280 N.B.R.(2d) 324; 734 A.P.R. 324; 2005 NBCA 20, refd to. [para. 24].

Canadian Union of Public Employees, Local 821 v. Vitalité Health Network (Zone 1B) (2015), 429 N.B.R.(2d) 158; 1119 A.P.R. 158; 2015 NBCA 3, refd to. [para. 24].

Authors and Works Noticed:

Canadian Judicial Council, Ethical Principles for Judges, p. 4 [para. 4].

Counsel:

Avocats:

Sarah E. Brooks appeared in person;

Philippe M. Frenette, for the respondent, Law Society of New Brunswick;

Frederick C. McElman, Q.C., for the respondents, Peter Seheult and New Brunswick Police Commission.

This motion and appeal were heard on January 28, 2015, before Larlee, Richard and Green, JJ.A., of the New Brunswick Court of Appeal, who delivered the following judgment on April 2, 2015 in both official languages.