CANS, the Citizens Alliance of Nova Scotia, has sent in their Notice of Appeal this week. They are contesting the recent ruling, which declared their case to be “moot”. The group filed a challenge back in 2021, and it still hadn’t been heard on the merits.
See Parts 1, 2 and 3 thus far in this case.
Justice John Keith of the Nova Scotia Supreme Court (NSSC) dismissed the case, determining that there is no live controversy to try, and that it would be a waste of time and money to proceed. He ignored pleas to let it play out anyway. This comes months after he refused CANS public interest standing, calling it a “fledgling” organization.
Robert Strang, the “Medical Officer of Health”, imposed some of the harshest restrictions against basic liberties in all of Canada. He even had public gatherings banned, although that was thankfully overturned.
***Note: JM, the minor Applicant, has decided not to participate in the Appeal. Although he is listed as a Respondent, the group is not seeking any remedy against him.
Justice Keith: You Want To Make An Example Of Him?!
At the hearing in December, 2024, Justice Keith accurately addressed the motivation of CANS and their members. Specifically, they do want to make an example of him. Having grossly exceeded his authority, holding him accountably was a main goal. However, he’s still in office, which makes the “mootness” ruling even more convoluted.
Strang abused his power, and as such, he needs to be removed from office.
It was also explained at the hearing that the Applicant and members wanted a ruling on the books. That way, any future attempts to replicate the events of 2020/2021 could be shut down within hours.
Despite these reasons, Justice Keith refused to let the case proceed.
Notice Of Appeal Alleges Serious Errors By Judge
While it is common to tread lightly when appealing a ruling, the Notice from CANS is pretty harsh. It claims that mistakes were made throughout. These included:
- Misunderstanding the evidence of “bad faith” and ultra vires” that was before him
- Not properly considering the law in question, the Health Protection Act of 2004
- Making conclusions that were not based on the evidence before him
- Regarding the ongoing Application as “academic”
- Potential bias resulting from assumption of motives
- Downplaying the severity of the restrictions in place
- Not understanding “Ultra Vires” completely
Overturning “discretionary” orders is difficult to do, but not impossible. Judges are given wide latitude to act, but theoretically can still be scrutinized.
Probably the most notable line came from Litigation Agent, William Ray. Suppose a bank robber got arrested and went to court. He then argued that he’s not “currently” robbing the bank. Now, should the case therefore be dismissed for mootness? It got laughs at the hearing.
One alternate remedy is either permission to file a Statement of Claim (which might be time barred), or to confirm it’s not necessary. Though that was explicitly written into the “travel mandates” cases, Justice Keith chose not to present such an option here.
More filings are expected in the coming months.
COURT DOCUMENTS (APPEAL):
(1) CANS NSCA Notice Of Appeal Draft Version
(2) CANS NSCA Notice Of Appeal FORMAL Plus Decision
COURT DOCUMENTS (MOOTNESS MOTION):
(1) CANS Walsh Affidavit Mootness Motion
(2) CANS Milburn Affidavit Mootness Motion
(3) CANS Hipson Affidavit Mootness Motion
(4) CANS Hipson Affidavit Mootness Motion More Attachments
(5) CANS Government Arguments Mootness Motion
(6) CANS Applicants Arguments Mootness Motion
(7) CANS Government REPLY Arguments Mootness Motion
(8) CANS Decision On Mootness
(9) https://www.canlii.org/en/ns/nssc/doc/2026/2026nssc21/2026nssc21.html
COURT DOCUMENTS (PUBLIC INTEREST STANDING):
(1) CANS Applicants Brief For Public Interest Standing Augst 25 2023
(2) CANS Applicants Book Of Authorities August 25 2023
(3) CANS Respondents’ Brief respecting Public Interest Standing Motion
(4) CANS Applicants Rebuttal Brief For Public Interest Standing Motion November 20 2023
(5) CANS Applicants Book Of Documents Volume 1 Of 2 December 11 2023
(6) CANS Applicants Book Of Documents Volume 2 Of 2 December 11 2023
(7) https://www.canlii.org/en/ns/nssc/doc/2024/2024nssc253/2024nssc253.html