Tupper v. Nova Scotia Barristers' Society et al., 2013 NSSC 290

• Judge: McDougall, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 15, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSSC 290;(2013), 336 N.S.R.(2d) 211 (SC)

Tupper v. Barristers Soc. (2013), 336 N.S.R.(2d) 211 (SC);

    1063 A.P.R. 211

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. NO.018

Thomas Percy Tupper (applicant) v. Nova Scotia Barrister's Society and The Attorney General of Nova Scotia (respondents)

(Hfx. No. 417636; 2013 NSSC 290)

Indexed As: Tupper v. Nova Scotia Barristers' Society et al.

Nova Scotia Supreme Court

McDougall, J.

October 2, 2013.

Summary:

Tupper filed a complaint with the Nova Scotia Barristers' Society (NSBS) against seven of its current and former members. The Director of Professional Responsibility for NSBS informed Tupper that his complaint was being dismissed. Tupper requested a review of the dismissal by a Review Subcommittee. On February 21, 2012, the Review Subcommittee upheld the dismissal of Tupper's complaint. On July 16, 2013, Tupper filed a motion requesting an extension of time to file an application for judicial review of the decision of the Review Subcommittee.

The Nova Scotia Supreme Court dismissed the motion.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - [See Barristers and Solicitors - Topic 5581 ].

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - [See Barristers and Solicitors - Topic 5581 ].

Barristers and Solicitors - Topic 5581

Discipline - Appeals and judicial review - General - Tupper filed a complaint with the Nova Scotia Barristers' Society (NSBS) against seven of its current and former members - The Director of Professional Responsibility for NSBS informed Tupper that his complaint was being dismissed - On February 21, 2012, a Review Subcommittee upheld the dismissal of Tupper's complaint - Tupper appealed the Review Subcommittee's decision to the Court of Appeal - He acknowledged that he had no right of appeal, but he argued that the absence of such an appeal was unconstitutional - The Court of Appeal held that the constitutional argument was without merit and dismissed the appeal for lack of jurisdiction - Tupper applied for leave to appeal to the Supreme Court of Canada - His application was denied on June 27, 2013 - On July 16, 2013, Tupper filed a motion requesting an extension of time to file an application for judicial review of the February 21, 2012 decision of the Review Subcommittee - The Nova Scotia Supreme Court held that Tupper should not be granted an extension of time on the basis of the applicable three-part test - The court was not persuaded that Tupper had a reasonable excuse for the lengthy delay in filing an application for judicial review - Before evaluating the proposed grounds of review, the court considered whether judicial review was available to Tupper - The court stated that "the legislation in the case at bar grants the complainant the right to a review of the Executive Director's decision to dismiss a complaint. Mr. Tupper is therefore a participant in the appeal of the decision not to investigate his complaint further. This does not entitle him to a surrogate hearing on the merits of his complaint, but it does entitle him to judicial review of the fairness of the Review Subcommittee process" - Judicial review of the merits was not available to Tupper - With respect to the fairness of the Review Subcommittee's process, the court was satisfied that Tupper's allegations of bias or a reasonable apprehension of bias and insufficient reasons were baseless.

Cases Noticed:

Eco Awareness Society v. Antigonish (County) et al. (2010), 299 N.S.R.(2d) 175; 947 A.P.R. 175; 2010 NSSC 461, refd to. [para. 22].

Rockwood Community Association Ltd. et al. v. Halifax (Regional Municipality) et al. (2011), 304 N.S.R.(2d) 83; 960 A.P.R. 83; 2011 NSSC 91, refd to. [para. 25].

Bellefontaine v. Schneiderman, [2006] N.S.R.(2d) Uned. 79; 2006 NSCA 96, refd to. [para. 25].

Fawson Estate, Re (2013), 329 N.S.R.(2d) 329; 1042 A.P.R. 329; 2013 NSCA 54, refd to. [para. 26].

Farrell v. Casavant (2010), 294 N.S.R.(2d) 292; 933 A.P.R. 292; 2010 NSCA 71, refd to. [para. 26].

Cummings et al. v. Nova Scotia (Minister of Community Services) et al. (2011), 297 N.S.R.(2d) 331; 943 A.P.R. 331; 2011 NSCA 2, refd to. [para. 29].

Robichaud v. College of Registered Nurses of Nova Scotia (2011), 308 N.S.R.(2d) 292; 976 A.P.R. 292; 2011 NSSC 379, refd to. [para. 30].

Friends of the Oldman River Society et al. v. Association of Professional Engineers, Geologists and Geophysicists (Alta.) et al. (2001), 277 A.R. 378; 242 W.A.C. 378; 2001 ABCA 107, leave to appeal denied (2001), 284 N.R. 193 (S.C.C.), consd. [para. 31].

Berg v. Ryneveld et al. (2006), 226 B.C.A.C. 142; 373 W.A.C. 142 (C.A.), leave to appeal denied (2006), 362 N.R. 400 (S.C.C.), refd to. [para. 31].

M.H. v. College of Physicians and Surgeons (Alta.) (2006), 400 A.R. 87; 2006 ABQB 395, refd to. [para. 31].

Pound v. Lunney, [2007] B.C.T.C. Uned. C62; 2007 BCSC 85, refd to. [para. 31].

Allen v. College of Dental Surgeons (B.C.) (2007), 236 B.C.A.C. 215; 390 W.A.C. 215; 2007 BCCA 75, refd to. [para. 31].

Metropolitan Centre Inc. v. Abugov Kaspar Architecture, Engineering, Interior Design, 2007 ABQB 419, refd to. [para. 31].

Emerman v. Association of Professional Engineers and Geoscientists (B.C.), [2008] B.C.T.C. Uned. 815; 2008 BCSC 1186, refd to. [para. 31].

Mitten v. College of Alberta Psychologists et al. (2010), 487 A.R. 198; 495 W.A.C. 198; 2010 ABCA 159, consd. [para. 31].

Counsel:

Thomas P. Tupper, on his own behalf;

Raymond F. Larkin, Q.C., for the Nova Scotia Barristers' Society;

Sheldon Choo, for the Attorney General of Nova Scotia.

This motion was heard on August 15, 2013, at Halifax, N.S., before McDougall, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 2, 2013.