In a relatively rare request, the Nova Scotia Court of Appeal was recently asked to reconstitute an appeal under the Judicature Act that the appellant would otherwise have had no right to bring. Although the appellant’s request was unsuccessful, the decision, SS v. Nova Scotia (Community Services), is interesting for the Court’s consideration of when an otherwise defective appeal should be allowed to proceed.

Background

SS is the grandmother of three children currently in foster care. In September 2015, the Minister of Community Services applied for an order of permanent care and custody of the children. SS, in turn, applied to be added as a party to the Minister’s application. She also sought custody of her grandchildren under the Maintenance and Custody Act.

The application’s judge denied SS’s application to be joined as a party and dismissed her application for custody. SS subsequently appealed the decision under the Children and Family Services Act (“CFSA”), asking the Court of Appeal to grant her application for party status in the child protection proceeding.

The Minister moved to dismiss SS’s appeal on numerous grounds. In particular, the Minister argued that SS had no right to appeal under the CFSA as she was not a party to the proceeding. As such, the Minister brought a motion under Rule 90.40 of the Nova Scotia Rules of Civil Procedure to have SS’s appeal dismissed by a single judge of the Court of Appeal for disclosing “no ground of appeal”.

Decision

Justice Bryson, sitting in Chambers, agreed that SS had no right of appeal under the CFSA as she was not a party to the protection proceeding. He then noted that it could, nonetheless, be possible to reconstitute SS’s appeal under the Judicature Act, which permits an appeal from the NSSC.

In Nova Scotia, the ability for a judge to reconstitute an appeal is restricted to appeals that are not “otherwise provided by any enactment”. As a result, Justice Bryson held that the Court would have to find that the appeal provisions in the CFSA were no impediment to reconstituting SS’s appeal and that any appeal under the Judicature Act in a CFSA proceeding would still respect CFSA principles.

Ultimately, Justice Bryson held that, even if he had authority to amend SS’s appeal as one brought under the Judicature Act, he would not do so as:

  1. There are no exceptional circumstances, such as a compelling case on the merits, to warrant such an amendment;
  2. The appeal is moot; and
  3. The children’s best interests would not be served by doing so.

No Exceptional Circumstances

A chambers judges of the Court of Appeal cannot dispense with an appeal on the merits. However, Justice Bryson held that the merits, as in the strength of the case, are nonetheless a relevant factor to consider in any exercise of discretion. In turn, if SS appeared to have a strong case on the merits, it would weigh in favour of preserving her appeal.

On the facts of this case though, SS’s appeal was not strong on the merits. She did not allege any error of law or principle, but instead asserted numerous errors of fact relating to her health, history and personal circumstances. Justice Bryson found the record appeared to support the judge’s factual findings, and certainly did not disclose any obviously palpable and overriding error.

Mootness

Since SS failed to appeal the order dismissing her application for permanent custody, she was essentially asking the Court to give her standing in a matter that had already been decided. For her appeal to be effective, the custody order would have to have been appealed as well, and SS would need to seek standing to do so. Even if SS had requested standing, a single judge of the Court of Appeal would not have had the ability to grant it. SS’s appeal was, therefore, moot.

Best Interest of the Children

Lastly, Justice Bryson noted that SS’s proposed appeal would delay the adoption of her grandchildren even longer, which would not serve the best interest of the children and did not favour resurrecting her case by reconstituting it as a Judicature Act appeal.

Justice Bryson also determined that exercising his discretion to refer the matter to a full panel of the Court of Appeal likewise would not be in the best interests of the children, as it would simply complicate the case and exacerbate the uncertain circumstances they presently endure.

Conclusion

For the reasons discussed above, Justice Bryson refused to reconstitute SS’s appeal under the Judicature Act and, in turn, granted the Minister’s motion to dismiss her appeal.