Campbell v. Nova Scotia (Minister of Community Services), (2014) 344 N.S.R.(2d) 376 (CA)

• Judge: Bryson, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 08, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 344 N.S.R.(2d) 376 (CA);2014 NSCA 47

Campbell v. N.S. (2014), 344 N.S.R.(2d) 376 (CA);

    1089 A.P.R. 376

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MY.032

Minister of Community Services (appellant) v. Sally Elizabeth Campbell (respondent)

(CA 425612; 2014 NSCA 47)

Indexed As: Campbell v. Nova Scotia (Minister of Community Services)

Nova Scotia Court of Appeal

Bryson, J.A.

May 13, 2014.

Summary:

The Department of Community Services denied Campbell "special needs" assistance to pay for medical marijuana. The Assistance Appeal Board affirmed the denial (August 2005 appeal). Campbell later provided the Department with a doctor's letter stating that medical marijuana was essential to her health and well-being. The Department did not change its decision. Campbell's appeal to the Board was again dismissed (April 2006 appeal). Campbell applied for judicial review respecting the April 2006 appeal. A preliminary issue was whether the Board had jurisdiction to hear the second appeal (i.e. whether res judicata barred it). The Board had dismissed Campbell's appeal without ruling on whether the second appeal was res judicata.

The Nova Scotia Supreme Court, in a judgment reported (2009), 278 N.S.R.(2d) 349; 886 A.P.R. 349, held that res judicata applied in administrative proceedings. The court stated that "it is not appropriate for this court to make a finding as to whether res judicata (i.e. issue estoppel) applied to the second application and appeal hearing. It would be open to the Board to apply res judicata to an appeal, but it did not address the issue in this case. Even if res judicata has been considered, the Board would have possessed a discretion to decline to apply it. In these circumstances, this court should not impose a finding of res judicata at the judicial review stage". The court ordered that the judicial review proceeding continue.

The Nova Scotia Supreme Court, in a judgment reported (2010), 290 N.S.R.(2d) 230; 920 A.P.R. 230, allowed the judicial review application. Based on the uncontradicted evidence of Campbell and her doctor (credibility not challenged), "there was only one rational finding available to the Assistance Appeal Board. Medical marijuana is essential for Ms. Campbell". The court ordered that the Department pay the expense of Campbell's medical marijuana and reimburse her retroactively to 2005. In 2014, Campbell obtained a declaratory order specifying the amount of money the Minister was required to pay to Campbell. The Minister appealed and applied under rule 90.41 to stay execution of the declaratory order pending resolution of the appeal.

The Nova Scotia Court of Appeal, per Bryson, J.A., stayed execution of the declaratory order on the condition that the funds were paid into court. The Minister raised an arguable issue for appeal, established irreparable harm if the funds were paid and the appeal succeeded (Campbell would be financially unable to repay the funds), and the balance of convenience favoured staying execution.

Practice - Topic 5669

Judgments and orders - Declaratory judgments - Stay of - The Department of Community Services denied Campbell "special needs" assistance to pay for medical marijuana - The Assistance Appeal Board affirmed the denial (August 2005 appeal) - Campbell later provided the Department with a doctor's letter stating that medical marijuana was essential to her health and well-being - The Department did not change its decision - Campbell's appeal to the Board was again dismissed (April 2006 appeal) - Campbell's judicial review application was allowed - Based on the uncontradicted evidence of Campbell and her doctor (credibility not challenged), "there was only one rational finding available to the Assistance Appeal Board. Medical marijuana is essential for Ms. Campbell" - The court ordered that the Department pay the expense of Campbell's medical marijuana and reimburse her retroactively to 2005 - In 2014, Campbell obtained a declaratory order specifying the amount of money the Minister was required to pay to Campbell - The Minister appealed and applied under rule 90.41 to stay execution of the declaratory order pending resolution of the appeal - The Nova Scotia Court of Appeal, per Bryson, J.A., stayed execution of the declaratory order on the condition that the funds were paid into court - Rule 90.41 was broad enough to stay declaratory judgments and orders pending appeal - The Minister raised an arguable issue for appeal, established irreparable harm if the funds were paid and the appeal succeeded (Campbell would be financially unable to repay the funds), and the balance of convenience favoured staying execution - The monies were for past marijuana purchases - Campbell's current needs were being met by income assistance.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Practice - Topic 5669 ].

Practice - Topic 8955.1

Appeals - Stay of proceedings pending appeal - Test for "merit to the appeal", "arguable issues", etc. - [See Practice - Topic 5669 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See Practice - Topic 5669 ].

Cases Noticed:

Morrison Estate et al. v. Nova Scotia (Attorney General) et al. (2009), 284 N.S.R.(2d) 292; 901 A.P.R. 292; 2009 NSCA 116, refd to. [para. 5].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général) (1994), 164 N.R. 1; 60 Q.A.C. 241 (S.C.C.), refd to. [para. 5].

Municipal Association of Police Personnel et al. v. McNeil et al., [2009] N.S.R.(2d) Uned. 116; 2009 NSCA 45, refd to. [para. 5].

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 6].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 8].

American Cyanamid Co. v. Ethicon Ltd., [1975] 1 All E.R. 504 (H.L.), refd to. [para. 8].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 9].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 11].

Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (1999), 176 N.S.R.(2d) 173; 538 A.P.R. 173 (C.A.), refd to. [para. 11].

Williams v. Kameka et al. (2009), 282 N.S.R.(2d) 376; 895 A.P.R. 376; 2009 NSCA 107, refd to. [para. 11].

Fleet et al. v. Federated Life Insurance Co. of Canada (2008), 269 N.S.R.(2d) 138; 860 A.P.R. 138; 2008 NSCA 90, refd to. [para. 14].

Barthe v. National Bank Financial Ltd. (2013), 336 N.S.R.(2d) 290; 1063 A.P.R. 290; 2013 NSCA 127, refd to. [para. 20].

MacPhail v. Desrosiers (1998), 165 N.S.R.(2d) 32; 495 A.P.R. 32 (C.A.), refd to. [para. 20].

Vogler v. Szendroi (2011), 302 N.S.R.(2d) 323; 955 A.P.R. 323; 2011 NSCA 37, refd to. [para. 20].

Whebby (W.E.) Ltd. v. Boehner (D.) Trucking & Excavating Ltd. et al. (2006), 249 N.S.R.(2d) 326; 792 A.P.R. 326; 2006 NSCA 129, refd to. [para. 26].

B.M.G. v. Nova Scotia (Attorney General) (2007), 254 N.S.R.(2d) 254; 810 A.P.R. 254; 2007 NSCA 57, refd to. [para. 28].

Natural Beauty Products Ltd. v. Body Reform Canada Ltd. (1990), 96 N.S.R.(2d) 330; 253 A.P.R. 330 (C.A.), refd to. [para. 29].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 90.41 [para. 5].

Counsel:

Lyndsay C. Jardine, for the appellant;

Sarah M. White, for the respondent.

This motion was heard on May 8, 2014, at Halifax, N.S., in Chambers before Bryson, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on May 13, 2014.