In Nova Scotia, a judge of the Court of Appeal, sitting alone, may summarily dismiss an appeal if it fails to disclose any ground for appeal. The November 19, 2015 decision, Raymond v. Brauer, provides a helpful overview of this extraordinary power and the circumstances in which a judge will choose to exercise it.
Ms. Raymond, Ms. Brauer and Ms. Harris, all self-represented litigants, have been in and out of litigation for a number of years. In August 2015, Ms. Raymond brought a motion for summary judgment against Ms. Brauer and Ms. Harris pursuant to Civil Procedure Rule 13.04: Summary judgment on evidence. Since Ms. Raymond did not file an affidavit with her motion, however, the motion was dismissed.
Ms. Raymond then sought leave to appeal the order to the Nova Scotia Court of Appeal. Her grounds of appeal were based on a perceived conflict between the 1972 Civil Procedure Rules and the 2008 Rules, between Rule 13.04 and Rule 12, determinations on a question of law, and between Rule 13.04 and Rule 2, which, among other matters, establishes general rules relating to judicial discretion.
In response, Ms. Brauer and Ms. Harris brought a motion to have the appeal summarily dismissed under Rule 90.04.
The Ability of a Judge Sitting Alone to Summarily Dismiss an Appeal
Rule 90.04 of the Civil Procedure Rules of Nova Scotia permits a judge, sitting alone, to summarily dismiss of an appeal if the notice of appeal fails to disclose any ground for appeal.
After reviewing recent case law on Rule 90.04, Justice Bourgeois distilled the following principles which she held should guide a judge’s application of that rule:
- If there is a sustainable ground of appeal, the appeal should not be dismissed by a single judge in Chambers, even in the face of questionable merits;
- A ground of appeal is unsustainable if there is no possibility in law that it could be found to be meritorious on appeal;
- A sustainable ground of appeal must not be a bare assertion of an error of law or jurisdiction, but rather, requires particulars of the error alleged; and
- An appeal should not be dismissed if an amendment could cure deficiencies in the drafting of the grounds.
Applying the above principles, Justice Bourgeois granted the motion for summary dismissal.
The only errors alleged in Ms. Raymond’s Notice of Appeal were based on the precedent relied on by the motion judge, not the judge’s order itself. Even more problematically, Ms. Raymond was essentially requesting the Court to reconsider the law on summary judgments and expand the scope of Rule 13.04 in general. Since Ms. Raymond did not fall within the narrow class of persons or bodies capable of bringing a reference on a point of law, Justice Bourgeois found Ms. Raymond failed to disclose a sustainable ground of appeal and granted the motion for summary dismissal accordingly.