Mercier v. Nova Scotia (Attorney General), (2015) 365 N.S.R.(2d) 209 (CA)

• Judge: Bourgeois, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 24, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 365 N.S.R.(2d) 209 (CA);2015 NSCA 90

Mercier v. N.S. (A.G.) (2015), 365 N.S.R.(2d) 209 (CA);

    1151 A.P.R. 209

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.008

Roger Edouard Mercier (respondent/appellant) v. Attorney General of Nova Scotia and Police Complaints Commissioner (applicants/respondents)

(CA 428778; 2015 NSCA 90)

Indexed As: Mercier v. Nova Scotia (Attorney General)

Nova Scotia Court of Appeal

Bourgeois, J.A.

October 6, 2015.

Summary:

Mercier applied for judicial review of the decision of the Police Complaints Commissioner not to refer his complaint to the Police Review Board. There were difficulties in reaching an agreement as to what properly constituted the record on judicial review. Mercier filed a motion challenging the record filed by the respondents and seeking an order permitting him to file additional materials to supplement it. He also asserted that the respondents had failed to include materials in the record which were in their possession.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, dismissed the motion without costs (the decision of Coady, J.). Mercier filed another motion challenging the adequacy of the record.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, dismissed the motion and ordered Mercier to pay costs of $250 to the respondents (the decision of Moir, J.). Mercier appealed the decisions of Coady, J., and Moir, J.

The Nova Scotia Court of Appeal, in a decision reported at [2013] N.S.R.(2d) Uned. 79, dismissed the appeal and ordered Mercier to pay costs of $200 to the respondents. Mercier moved to amend the notice of judicial review to permit the completion of the record.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, dismissed the motion and ordered Mercier to pay costs of $200 to the respondents.

The Nova Scotia Supreme Court, in a decision reported at 345 N.S.R.(2d) 39; 1092 A.P.R. 39, dismissed the application for judicial review (the decision of Leblanc, J.). The Attorney General sought costs.

The Nova Scotia Supreme Court, in a decision reported at 349 N.S.R.(2d) 320; 1101 A.P.R. 320, awarded costs of $500 to the Attorney General. Mercier appealed the decision of Leblanc, J., and the subsequent costs decision. He moved for an order that the Attorney General pay for the cost of obtaining a transcript of the matter under appeal.

The Nova Scotia Court of Appeal, per Bourgeois, J.A., in a decision reported at 351 N.S.R.(2d) 336; 1111 A.P.R. 336, dismissed the motion. The Attorney General moved for an order for security for costs.

The Nova Scotia Court of Appeal, per Bourgeois, J.A., in a decision reported at 351 N.S.R.(2d) 341; 1111 A.P.R. 341, allowed the motion and ordered Mercier to post security for costs of $500. The Attorney General moved to dismiss Mercier's appeal as a result of his failure to post security for costs. Mercier moved for an adjournment of the Attorney General's motion for health reasons.

The Nova Scotia Court of Appeal, per Farrar, J.A., in a decision reported at 361 N.S.R.(2d) 193; 1137 A.P.R. 193, allowed Mercier's motion and granted an adjournment.

The Nova Scotia Court of Appeal, per Bourgeois, J.A., allowed the Attorney General's motion and dismissed Mercier's appeal.

Practice - Topic 3129

Applications and motions - Motions - Adjournments - Mercier applied for judicial review of the decision of the Police Complaints Commissioner not to refer his complaint to the Police Review Board - The chambers judge dismissed the application - Mercier appealed - The respondents obtained an order requiring Mercier to post security for costs of $500 - The respondents moved to dismiss Mercier's notice of appeal as a result of his failure to post security for costs - Mercier requested that the motion for dismissal be adjourned without date, due to the existence of "criminal investigations" into the respondents' actions - The Nova Scotia Court of Appeal, per Bourgeois, J.A., stated that "There is nothing before the Court by way of evidence to establish the nature or stage of these investigations, nor how they are relevant to the appeal. In his oral submissions, Mr. Mercier advised that the investigations are a result of his recent complaint to the RCMP in relation to the Respondents. I am not prepared to adjourn the motion to dismiss." - See paragraph 11.

Practice - Topic 8215

Costs - Security for costs - Security for costs of an appeal - Failure to post - Effect of - The chambers judge dismissed Mercier's judicial review application - Mercier appealed - The respondents obtained an order requiring Mercier to post security for costs of $500 - The respondents moved to dismiss Mercier's appeal as a result of his failure to post security for costs - The Nova Scotia Court of Appeal, per Bourgeois, J.A., allowed the motion - The court had previously accepted that Mercier lived on a very limited income and setting security too high could prevent him from advancing his appeal - However, he had not provided a reasonable excuse for his failure, over 11 months, to comply, or attempt to comply with the order - This was particularly troublesome given that he had moved for an order extending the time to pay security - Presumably in making that request, he felt he had the ability to comply with the order, if given more time - Although the request was denied, he received the additional time sought by virtue of the timing of the respondents' motion - As to the appeal's merits, he was focussed upon his belief that the respondents had not made proper disclosure, and as such the record in the court below was deficient - However, there had been three previous decisions, including one from this court, determining that his concerns with the record lacked merit - He had provided no evidence, or submissions relating directly to the merits of the appeal - He had not explained how the chambers judge erred nor provided anything beyond the bare assertions contained in his Notice of Appeal - More was required to establish the existence of "arguable grounds" and what was provided was deficient to establish a "strong case" for appellate intervention - See paragraphs 13 to 22.

Cases Noticed:

Dataville Farms Ltd. v. Colchester County (Municipality) et al. (2014), 351 N.S.R.(2d) 65; 1111 A.P.R. 65; 2014 NSCA 95, appld. [para. 9].

Counsel:

Duane Eddy, for the applicants/respondents;

Roger Edouard Mercier, respondent/appellant in person.

This motion was heard in Chambers, at Halifax, Nova Scotia, on September 24, 2015, by Bourgeois, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on October 6, 2015.