Sticking to the Deadlines
In this post, we look at a case from Nova Scotia, Power v. Cape Breton Victoria Regional School Board, 2022 NSCA 43.
This case highlights the importance for self-represented litigants of sticking to court deadlines and not assuming that extensions will be granted. If deadlines are not met, it may result in a case being dismissed, as unfortunately happened in this case.
This case may be informative for other SRLs who are requesting an extension. It highlights the importance of sticking to the deadlines, some of the requirements to be met for an appeal, and challenges that may arise for SRLS. If an SRL is in the position of asking for an extension for an appeal, it may be important to be prepared to show that there was good reason for not making the deadlines and to clearly demonstrate that you are undertaking next steps.
The Facts of the Case:
Ms. Power filed a Notice of Application for Leave to Appeal a decision made by the Workers’ Compensation Appeals Tribunal (WCAT). As is commonplace, she received a letter from the Registrar with instructions, including her next steps, deadlines and a list of resources that may assist her preparation. She was instructed to work quickly as her motion must be heard no later than 80 days after she filed her Notice of Application for Leave to Appeal. If this deadline was not met, the letter indicated that her appeal may be dismissed for non-compliance with the Nova Scotia Civil Procedure Rules.
Unfortunately, Ms. Power didn’t meet these conditions and she made no movement to advance her appeal. The Registrar filed a motion to dismiss pursuant to the Civil Procedure Rules, however, this motion was adjourned to provide Ms. Power another opportunity to take steps toward her appeal. The judge ultimately dismissed the Registrars motion, set dates for the hearing, and provided deadlines for Ms. Power’s appeal book and factum.
Ms. Power asked for an extension so she would have more time to file materials and to adjourn the hearing. The motion was granted, and the assignment of new hearing dates was adjourned to allow Ms. Power the opportunity to see if the Workers Advisor Program would assist her.
Despite the extension, she again made no move to advance her appeal and was therefore contacted again by the Registrar about her overdue appeal book and factum. The Registrar again motioned to dismiss Ms. Power’s appeal according to Civil Procedure Rule 90.43.
Ms. Power detailed several of the obstacles that she asserted prevented her from advancing her appeal including:
- Having no legal counsel to help
- Illness experienced by herself
- Illness experienced by her partner
- Lacking a vehicle which impacted her mobility and ability to retain counsel
Ms. Power also articulated her struggle to sort through and comprehend the materials related to the case, commenting that “[I] sat down and went through all my files and I don’t even understand the words in them”.
The Legal Test
Ms. Power had to prove to the judge why the Registrar’s motion to dismiss her appeal should be dismissed. The judge noted that in this case, the court is largely guided by considerations set out in the case of Islam v. Sevgur, 2011 NSCA 114, summarized here:
- Whether there is good reason for the appellant being in default of the rules;
- Whether the appeal raises legitimate and arguable issues;
- Whether the appeal is taken in good faith;
- If the appellant is willing and able to comply with future deadlines/requirements;
- Any prejudice to the Appellant (if the Registrar’s motion is granted) or prejudice to the Respondent (if the Registrar’s motion is denied);
- The finite time and resources of the court, and;
- Whether there are procedural or substantive impediments preventing the appellant from continuing their appeal.
The Decision
Unfortunately, the judge found that Ms. Power’s cited reasons did not excuse her lack of progress and did not find her explanations persuasive.
Although the court acknowledged that finding a lawyer is a common frustration for many SRLs, Ms. Power hadn’t provided sufficient information about her recent efforts to secure counsel. Ms. Power also wasn’t able to provide though court with any certainty about when she may be able to secure legal counsel and move the appeal forward.
The judge felt that Ms. Power had been vague about the health challenges and their connection to the advancement of the appeal.
Ultimately, her answers and reasons didn’t satisfy the considerations of Islam v. Sevgur. Although the judge did not believe there was any ill-intent on behalf of Ms. Power, given her history of missing deadlines the judge was not convinced that she had the ability to meet future deadlines and requirements, especially in light of the flexibility already provided. The court expressed concerns about the cost of the delay to the court, the public and also the respondent.
As a result, the judge granted the Registrar’s motion to dismiss Ms. Power’s appeal.
Takeaway
Whatever court your matter is in, remember to keep track of and be aware of what deadlines apply in your case. Don’t assume an extension will be granted. If you find yourself in a position where you are requesting a deadline, be sure to be organized and familiar with the considerations articulated in Islam v Sevgur.