



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



N.E.T. v. British Columbia,









2018 BCCA 22




Date: 20180112

Docket: CA44844

Between:

N.E.T.

Appellant

(Plaintiff)

And

Government of
British Columbia, Interior Health Authority, Royal Inland Hospital, Kamloops
Mental Health & Substance Use, Dr. Kurt Buller and Dr. James Mabee

Respondents

(Defendants)

A
publication ban was ordered on September 30, 2016, in the Supreme Court of
British Columbia - no person may publish, broadcast or otherwise divulge the
appellants name, or other information tending to reveal his identity as
connected with this action.




Before:



The Honourable Mr. Justice Fitch

(In Chambers)




On appeal from: an order
of the Supreme Court of British Columbia, dated
September 29, 2017 (
N.T. v. British Columbia
, 2017 BCSC 1742,
Kamloops Registry No. 53209)

Oral Reasons for Judgment




Appellant appearing In Person:



N.T.





Counsel for the Respondent, Government of British Columbia:



F. de Lima





Counsel for the Respondent, Interior Health Authority



A.C. Fraser





Counsel for the Respondents, Dr. Mabee and Dr. Buller:



K. Rose





Place and Date of Hearing:



Vancouver, British
  Columbia

January 12, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 12, 2018




Summary:

The appellant makes various
applications in relation to his appeal from an order dismissing his claim
against the defendants as statute-barred. In the underlying action, the appellant
alleged the defendant doctors committed negligence in relation to his certifications
under the
Mental Health Act
, R.S.B.C. 1996, c. 288. Held:

Leave to appeal: Leave to
appeal is not required. The notice of application for leave to appeal will
stand as the notice of appeal.

Application for no fee
status: allowed. The merit threshold for a no-fee application is low. It cannot
be said on the basis of the material filed that the appeal is bound to fail.

Application for publicly
funded transcripts, appeal record and appeal book: dismissed. Even if a judge
in chambers has jurisdiction to make the order sought, such an order is only
appropriate in civil cases if the appeal is very meritorious. It has not been
shown that the appeal meets this test.

Application for publication
ban: the appellant already has the relief he seeks. The court below made a
publication ban with respect to the appellants identity in 2016. Nothing
suggests the ban was varied or set aside. The ban therefore endures.

Application for sealing
order: dismissed. Even if a judge in chambers has jurisdiction to make a
permanent order for the sealing of the Courts file, the order is unnecessary
in this case. Court records are presumptively open to the public. Orders
restricting public access to court records must be justified by a public
interest that prevails over the public interest in open courts. The appellant
adduced no convincing evidence to demonstrate that a public interest in
confidentiality justifies a sealing order in this case. He provided no evidence
that the absence of a sealing order will frustrate his ability to access the
courts. The existing publication ban is sufficient to protect the appellants
privacy interests.

Application to have the
appeal heard
in camera
: The division hearing the appeal, not a justice
in chambers, should decide whether the appeal will be heard
in camera
.

I.

Introduction

[1]

FITCH J.A.
: The appellant, N.T., makes application for the
following orders: leave to appeal the September 29, 2017, order of Justice
Meiklem dismissing the action against all of the defendants as being barred by
the
Limitation Act
, R.S.B.C. 1996, c. 266 (the former Act); that no
fees be payable by him under Schedule 1 of Appendix C to the
Court of Appeal
Rules
in connection with his appeal; that transcripts of the proceedings
below be provided to him at no cost on or before January 31, 2018; and that the
Court impose a ban on the publication of his identity or information that could
disclose his identity, seal the Court file, and direct that the appeal be heard
in camera
.

[2]

The Province takes no position on any of the applications.

[3]

The other defendants concede that leave to appeal is not required. They
oppose the making of a no fees order on grounds that the appeal is devoid of
merit and bound to fail. They take no position on the appellants other
applications for relief.

II.

Background

[4]

The action, which was commenced on July 12, 2016, concerned N.T.s
certifications under the
Mental Health Act
, R.S.B.C. 1996, c. 288 [
MHA
]
between November 1, 2000, and February 19, 2013.

[5]

Dr. Mabee was the appellants family physician until his retirement from
practice on June 30, 2010. He referred the plaintiff to Dr. Buller, a
psychiatrist, in October 1999 and signed one of the required medical
certificates on the original certification on October 30, 2000. The appellant
was certified on multiple occasions between 2002 and 2012, although he was
frequently released on extended leave subject, as I understand it, to a
condition that required him to ingest his medication under the supervision of a
pharmacist. He was eventually discharged from involuntary patient status by Dr.
Buller on February 19, 2013.

[6]

The defendants in the underlying action applied pursuant to R. 9-7 of
the
Supreme Court Civil Rules
for dismissal of the appellants action by
way of summary trial on the basis that it was statute-barred by the former Act.
The summary trial proceeded on the footing that the former Act governed as a
result of the transition provisions found in s. 30 of the
Limitation Act
,
S.B.C. 2012, c. 13 (the current Act).

[7]

The reasons for judgment of the court below, indexed as 2017 BCSC 1742,
reflect that the parties agreed that the matter was suitable for disposition by
way of summary trial.

[8]

The appellants claim against the defendants was summarized by Meiklem
J. as follows:

[3]

The
plaintiff claims that Dr. Mabee and Dr. Buller were both negligent in their
diagnosis and treatment of him, which consisted principally of prescribing the
anti-psychotic medication Olanzapine, and enforcing his consumption of same by
maintaining involuntary patient certification under the
MHA
. The
plaintiff has consistently asserted that he does not suffer from any mental
illness or infirmity. He faults these defendants for concluding that he was
delusional without first investigating the veracity of his reported
interventions in his life by various entities.

[4]        The Notice of Civil
Claim refers to Dr. Buller and Dr. Mabee holding, fiduciary responsibility,
as well as duty of care responsibility. The claims against the Government of
British Columbia, Interior Health Authority (IHA), RIH, and Kamloops Mental
Health and Substance Use (MHSU) are somewhat obscure. The claim against IHA,
MHSU and RIH seems to be based on the proposition that they are vicariously
liable for permitting injurious conduct on the part of medical personnel.
The relief sought against the Government of British Columbia is the expunging
of records of Medical Billing Services, and the plaintiff claims that the
Government is jointly liable with the other institutional defendants for
damages because it has failed to respond to his requests for remedy, and
because it facilitates and abets faulty process in the form of the BC Mental
Health Acts administration which wrongfully effected the plaintiffs detention
and caused grievous and irremediable injury.

[9]

As the plaintiffs claims were determined to be principally medical
negligence claims against the named doctors, the judge below found that, absent
postponement, the limitation period is two years from the occurrence of the
alleged negligent conduct.

[10]

The
earliest date upon which the plaintiffs right to bring an action could be said
to arise was October 30, 2000, when he was first certified and compelled to
take medication. The defendants submitted that the latest date by which the
limitation period could have commenced was the appellants discharge date of
February 19, 2013.

[11]

Dr.
Mabee submitted that, because he retired on June 30, 2010, no cause of action
against him in medical negligence could have arisen after that time. Dr. Buller
submitted that his last interaction with the plaintiff was February 19, 2013,
which was the latest date upon which any cause of action could have arisen
against him.

[12]

The
appellant advanced a number of arguments and alternative arguments below
supported by voluminous written submissions.

[13]

First,
he argued that the limitation period did not commence until the Interior Health
Authority and the Kamloops Mental Health & Substance Use clinic closed
their file in relation to him on September 1, 2015.

[14]

Alternatively,
the appellant argued that he did not discover his claim until March 2016,
when he experienced an epiphany in which he says he came to the full
realization of injuries incurred, throughout the process there was an insidious
and continuous erosion of my person, but clear realization of all injuries
occurred at this time. The defendants responded to this alternative position by
noting that it is apparent from the appellants conduct since 2000 that he was
cognizant of the existence of a duty of care and expressed, in consistent and
vigorous terms, his belief that the defendant doctors had misdiagnosed him,
misapplied the
MHA
, and caused him injury by requiring him to take a
pharmaceutical for the treatment of a diagnosed delusional disorder.

[15]

In
the further alternative, the appellant argued that he was entitled to a
postponement of the limitation period pursuant to s. 6(6) of the former Act.
Relying on
Novak v. Bond
, [1999] 1 S.C.R. 808, the appellant argued that
his circumstances were so serious, significant and compelling that it could not
reasonably be said that he could bring an action within the prescribed
limitation period. In this regard, the appellant said that he felt emotionally
overwhelmed and unable to bring the action within the two-year limitation
period.

[16]

The
defendants responded to this further alternative argument by noting that the
appellant pursued his complaints not only to the doctors, but also by engaging in
a letter campaign in 2008 directed at MLAs and by advocating changes to the
MHA
.
In addition, the defendants noted that the appellant filed a petition in the
Supreme Court of British Columbia in 2012, prepared a 52-page affidavit in
support of that petition and argued it on his own behalf. In that petition, the
appellant sought an order discharging him from Royal Inland Hospital, along
with ancillary orders expunging from his medical records all information
associating him with a mental disorder and requiring Dr. Buller to write a
letter stating that the appellant did not suffer from a mental disorder. An application
for leave to appeal from the dismissal of the petition was initiated by the
appellant but apparently abandoned after his discharge from involuntary patient
status by Dr. Buller on February 19, 2013. The defendants also noted that, in
December 2012, the appellant prepared a 42-page submission on legislative
reform for the Attorney General of British Columbia and the Minister of Health.
In April and May 2014, the appellant corresponded with and met the then
Minister of Health to advocate for legislative reform and to advance his
request that his personal health records be purged of any reference to being
diagnosed with a delusional disorder.

[17]

The
record before me is unclear as to whether the appellant sought to rely on s. 7
of the former Act, which provided that if, at the time the right to bring an
action arises, a person is under a disability, the running of time with respect
to the limitation period is postponed so long as that person is under a
disability. The appellant argues before me that he did rely on s. 7 of the
former Act and there is some support for this in the material that appears to
have been before the judge below. The judge did not understand the appellant to
be relying on s. 7 of the former Act and held, in any event, that the appellant
failed to discharge his burden of bringing himself within the provisions of
that section.

[18]

In
the further alternative, the appellant argued that s. 3(1)(k) of the current
Act applied to his case. This provision states that the Act does not apply to
claims relating to assault or battery, whether or not the claimants right to
bring the court proceeding was at any time governed by a limitation period, if
the assault or battery occurred while the claimant was in a relationship of
dependency with a person who performed, contributed to, consented to or acquiesced
in the assault or battery. As I understand the appellants submission, he says
that, when he was forced to ingest medication, he was in a relationship of
dependency with the defendant physicians and, in particular, Dr. Buller. The
judge did not address this argument in his reasons for judgment.

III.

The Reasons for Judgment

[19]

The
judge considered that two issues arose for determination on the summary trial:
(1) the commencement dates of the applicable two-year limitation periods in
respect of each defendant; and (2) whether the plaintiff proved he is entitled
to a postponement of the limitation periods so as not to bar his action
commenced on July 12, 2016.

[20]

In
dismissing the action as being time-barred, Meiklem J. made these findings:

·

Dr. Mabees last certification of the appellant occurred on March
10, 2004;

·

The last date upon which Dr. Buller renewed the appellants
certification was October 4, 2012. That renewal was set to expire on April 9,
2013, but the appellant was discharged by Dr. Buller on February 19, 2013;

·

The appellants cause of action arose, and the basic limitation
period commenced, in respect of Dr. Mabee on March 10, 2004, and in respect of
Dr. Buller, on October 4, 2012;

·

The action against Dr. Mabee would be barred even if the basic
two-year limitation period had been postponed to a date six years after his
alleged actionable negligence. This is because the action was commenced six
years after Dr. Mabees retirement from medical practice on June 30, 2010;

·

As the plaintiffs claims did not rely on the conduct of any
actors other than Dr. Mabee and Dr. Buller, the limitation period in respect to
the other defendants also commenced on October 4, 2012;

·

The evidence respecting the extent to which the appellant pursued
his grievances refuted his suggestion that he was unaware of the existence of a
duty owed to him by the defendant doctors or unaware that he had suffered the
alleged damages as a result of a breach of that duty. He was aware of the
identity of the defendants and was possessed of the facts referenced in
s. 6(5)(b) of the former Act. The appellants contention that he only came
to discover his injuries in March 2016 was rejected as being inconsistent with
his course of conduct. Thus, the first two components of s. 6(4) set out in
Ounjian
v. St. Pauls Hospital
, 2002 BCSC 104 at para. 21, were met before July 12,
2014. As for the third component (a person knowing those facts, and having
taken the appropriate advice a reasonable person would seek on those facts,
would regard the facts as showing that an action would have a reasonable
prospect of success), Meiklem J. found this was satisfied prior to July 12,
2014  two years before the action was commenced. With respect to the
appellants reliance on
Novak
and the fourth component, Meiklem J. held
that the appellant offered no evidence of serious, significant and compelling personal
circumstances in any way comparable to those of Mrs. Novak that could be
considered sufficient to explain why he could not reasonably have commenced an
action prior to July 12, 2014;

·

In the face of these findings, Meiklem J. held that none of the
bases set out in s. 6(4) of the former
Act
on which I could find
postponement of the commencement of the applicable limitation period have been
established by the plaintiff;

·

Even if the appellant had raised s. 7 of the former Act as a
defence to the application of the limitation period, he failed on the evidence
to discharge the burden of bringing himself within the terms of this provision.

[21]

Against
this background, I turn to address the appellants applications for relief.

IV.

The Orders Sought

Leave to Appeal

[22]

In
my view, the appellant does not require leave to appeal. Accordingly, I would
direct that the notice of application for leave to appeal filed October 24,
2017, stand as the notice of appeal.

No Fees Application

[23]

Rule
56 of the
Court of Appeal Rules
(the 
CA Rules
)

confers
jurisdiction on a justice to order that a person need not pay fees:

Justice may order that no fees are
payable

56

(1)
Subject to subsection (2), if a justice, on application made in
accordance with Rule 38 before or after the commencement of an appeal or
application, finds that a person cannot afford to pay the fees under Schedule 1
of Appendix C without undue hardship, the justice may order that no fees are
payable under that Schedule
.

(2)
A
justice may not make an order under subsection (1) respecting a person if the
justice considers that the position being argued by that person

(a) lacks merit,

(b) is scandalous, frivolous or
vexatious, or

(c) is otherwise an abuse of the process
of the court.

[24]

Under
R. 56, a chambers judge must consider two criteria: the financial position of
the appellant and the likelihood of success on appeal:
J.W.M. v. J.L.M.
,
2016 BCCA 453 at para. 20 (Chambers).

[25]

The
merits threshold for a no fees application is not high:
Hasham v. Reach
Centre Association
, 2017 BCCA 104 at para. 9 (Chambers);
BH v. JH
,
2015 BCCA 475 at para. 10 (Chambers). The order will not, however, be granted
where the appeal is bound to fail:
Hasham
at para. 9;
Kohlmaier v.
Campbell
, 2003 BCCA 61 at para. 3 (Chambers).

[26]

I
am satisfied that the appellant cannot afford to pay filing fees without undue
hardship. Can it be said that the appeal is doomed to failure?

[27]

The
appellant will advance what I understand to be four grounds of appeal: (1) the
judge improperly precluded a review of all the facts on the summary trial,
including facts going to the issue of whether his cause of action sounded in
assault, such that s. 3(1)(k) of the current Act might apply; (2) the judge
incorrectly admitted hearsay evidence; (3) the judge erred by failing to find
that the postponement provisions of the former Act applied given the
appellants serious, significant and compelling circumstances; and (4) the
judge erred by failing to find that the appellants cause of action continued
beyond his February 19, 2013, discharge date.

[28]

I
accept that the appellant will likely face significant challenges in
successfully advancing these grounds of appeal.

[29]

With
respect to the second ground of appeal, the appellant appears to be saying that
the judge erred by relying on hearsay evidence and, further, that it was
incumbent on the respondents to adduce evidence establishing his mental
illness. I have not been directed by the appellant to any hearsay evidence
improperly relied on by the judge. Further, on my preliminary assessment of the
matter, I do not see how evidence concerning the diagnosis of mental illness
has any bearing on the resolution of the issues that arose for determination on
the summary trial. As I see it, the appellants mental health diagnosis was
only relevant to whether his circumstances were so serious, significant and
compelling as to meet the test for postponement set out in
Novak
, and
whether it could be said that he suffered from a disability pursuant to s. 7 of
the former Act.

[30]

With
respect to the third ground of appeal, as the majority of the Court noted in
Novak
at para. 86, whether individual circumstances would be regarded by a reasonable
person as preventing a plaintiff from commencing an action is a case-specific
assessment. In this case, the judge found that the appellant offered no
evidence of serious, significant and compelling personal circumstances that
could reasonably be characterized as sufficient to explain why he could not have
commenced an action by July 12, 2014  the date that was two years prior to the
commencement of the action. To succeed on this ground, it seems to me that the
appellant will be obliged to establish palpable and overriding error.

[31]

With
respect to the fourth ground of appeal, I have difficulty, on a preliminary
assessment of the matter, seeing merit in the appellants contention that the
delayed closing of his file or any other action taken by any of the defendants
after his discharge caused him continuing harm such as to constitute actionable
negligence. I note that the judge dealt with this issue at para. 57 of his
reasons for judgment.

[32]

The
appellants position that s. 3(1)(k) of the current Act ought to have been
applied to the circumstances of his case stands, in my mind, on a somewhat
different footing. As mentioned earlier, this argument was advanced by the
appellant but not addressed by the judge below. I accept that there may well be
challenges associated with successfully advancing this argument on appeal.
Counsel for the Interior Health Authority, Royal Inland Hospital and Kamloops
Mental Health & Substance Use urges upon me the proposition that the
legislature could not have intended that the conduct contemplated by this
subsection, when committed by a mental health professional in relation to an
involuntarily certified patient, should be subject to no limitation period. While
this may, as counsel suggest, be a difficult argument for the appellant to
meet, I am not prepared to hold on the very limited submissions I have heard on
this point that there is no merit in this ground of appeal and that it is bound
to fail.

[33]

As
I am unprepared to say on the material before me that the appeal is bound to
fail, I grant the appellant no fee status in relation to his appeal.

The Provision of Transcripts

[34]

The
order that the appellant be excused from paying filing fees in connection with
this appeal does not relieve him of the obligation to prepare and file an
appeal record, transcripts and appeal books absent further order of this Court
or a judge thereof:
Jong v. Jong
, 2002 BCCA 322 at para. 11.

[35]

Assuming
that I have jurisdiction to make the order sought (see, on this point,
Barbeau-Lafacci
v. Holmgren
, 2002 BCCA 553 at para. 20 (Chambers)), I would not make an
order in this case that the appellant be provided with the appeal record,
transcripts and appeal books at public expense. In
Cutts v. Alterra Property
Group Ltd.
, 2014 BCCA 264 at paras. 1317 (Chambers), Stromberg-Stein J.A.
canvassed the authorities on this point and concluded that such an order is
rarely, if ever, made on civil appeals and would only be considered where the
underlying appeal has been shown to be very meritorious. While I am not
prepared to say that the appellants appeal is bound to fail, neither has it
been shown to be possessed of the sort of merit that might conceivably justify
the making of such an order.

The Publication Ban

[36]

A
non-publication order was made in the
court below on September 30, 2016. The terms of the order provided that
no
person may publish, broadcast or otherwise divulge [the appellants] name, or
other information tending to reveal his identity as connected with this
action. The order appears to be permanent.

[37]

A
permanent publication ban made in a lower court generally endures until varied
by a court with jurisdiction to do so:
R. v. V.K.
(1992), 68 C.C.C. (3d)
18 at 21 (B.C.C.A);
I.J. v. J.A.M.
, 2013 BCCA 430 at para. 3. The order
has not, to the best of my knowledge, been varied or set aside. Since a
publication ban is already in place, the appellant already has the relief he
seeks. For clarity, the parties are directed to file further written
submissions using only the appellants initials.

The Sealing Order

[38]

As
neither the appellant nor the defendants have addressed in any detail the law
in this area, I will keep my discussion of this issue relatively short.

[39]

By
way of background, it is my understanding that the file in the Supreme Court of
British Columbia is not subject to a sealing order. While temporary sealing
orders were granted to permit argument and proper notice of an application that
the appellant brought for an order sealing the Supreme Court file, those orders
have expired. When the publication ban was imposed in the Supreme Court of
British Columbia on September 30, 2016, the presiding judge declined to make a
further sealing order, evidently being of the view that the appellants privacy
interests were sufficiently protected by the publication ban order.

[40]

Applications
for a non-statutory publication ban or confidentiality order, such as a sealing
order, are guided by the framework developed in
Dagenais v. Canadian
Broadcasting Corp.
, [1994] 3 S.C.R. 835,
R. v. Mentuck
, 2001 SCC 76,
and
Sierra Club of Canada v. Canada (Minister of Finance)
, 2002 SCC 41.

[41]

As
stated by the Supreme Court of Canada, every court has a supervisory and
protecting power over its own records:
A.G. (Nova Scotia) v. MacIntyre
,
[1982] 1 S.C.R. 175 at 189. Court records are presumptively open to the public
in accordance with the open court principle, which is linked to freedom of
expression:
Sierra Club
at para. 36. The onus is on the party seeking to
restrict public access to show that some superordinate public interest prevails
over the public interest in open courts:
Dagenais
at 891.

[42]

The
Dagenais/Mentuck
framework involves a two-step test
for determining whether a publication ban or confidentiality order is justified
(see
Sierra Club
at para. 53):

1.

Is the order
necessary to prevent a serious risk to an important interest? This first
question involves three elements: (a) whether the risk is real and substantial,
well-grounded in the evidence, and poses a serious threat to the interest in
question; (b) whether the interest can be expressed in terms of a public
interest in confidentiality, as opposed to an interest that is merely specific
to the party requesting the order; and (c) whether reasonable alternatives are
available to the order sought and, if not, how the court may restrict the order
as much as reasonably possible.



2.

Do the salutary
effects of the confidentiality order outweigh its deleterious effects,
including effects on the right to free expression, which in this context
includes the public interest in open and accessible court proceedings?

[43]

At
the first stage of the analysis, the importance of the open court principle
requires an applicant to adduce convincing evidence justifying a restriction on
public access:
Out-of-Home Marketing Association of Canada v. Toronto (City)
,
2012 ONCA 212 at para. 56 per Epstein J.A., leave to appeal refd [2012]
S.C.C.A. No. 249;
M.E.H. v. Williams
, 2012 ONCA 35 at para. 34.

[44]

If
restrictions on the open court principle are justified, the
Dagenais/Mentuck
framework requires courts to craft orders that are minimally restrictive.
For example, if initialization will protect adequately an individuals privacy
interests when coupled with a publication ban order, a sealing order is
unlikely to be justified:
C.L.B. v. J.B.
(2009), 97 O.R. (3d) 544 (Sup.
Ct. J.). Even if an applicant establishes that a sealing order is justified,
the court may make the sealing order applicable only to part of the file, such
as certain affidavits: see, e.g.,
Sahlin v. The Nature Trust of British Columbia
,
2010 BCCA 516 (Chambers).

[45]

The
appellant has filed in this Court materials detailing his mental health history.
He seeks to prevent any public access to this information, relying on the
social stigma he says he has experienced as an individual diagnosed with a
mental health problem and involuntarily certified under the
MHA
.

[46]

Assuming
I have jurisdiction to make what appears to be a permanent sealing order sought
by the appellant, I would decline to make the order in this case. In my view, the
appellant has failed to satisfy the first branch of the
Dagenais/Mentuck
framework.
He has not adduced convincing evidence to demonstrate that a superordinate
public interest in confidentiality justifies infringing the open court
principle. Further, the appellant has adduced no evidence demonstrating that
the absence of a sealing order will effectively frustrate his ability to access
the courts.

[47]

The
Dagenais/Mentuck
framework requires courts to impose measures that
minimally impair the open court principle. As discussed above, the court below
made a publication ban, which continues to govern proceedings in this Court. I
agree with the court below that initialization of the style of cause and the
publication ban are sufficient to protect the appellants privacy interests in
this case. The application for a permanent sealing order over the entirety of
this Courts file is, accordingly, dismissed.

In Camera
Hearing of the
Appeal

[48]

I
am doubtful that I have jurisdiction to make an order that the appellants
appeal be heard
in camera.
Even if I have jurisdiction under s. 10(2)(a)
of the
Court of Appeal Act
, R.S.B.C 1996, c. 77, to make the order
sought, I would not have been inclined to grant the application for two
reasons. First, as should be apparent from the foregoing, I am of the view that
the appellants privacy interests are protected adequately by the existence of
an order prohibiting the publication of his identity or information that could
disclose his identity. Second, and more to the point, the order the appellant
seeks goes in a fundamental way to the management of the appeal itself and, in
my view, should be brought to the division of this Court assigned to hear the
appeal, not to a judge in chambers. To be clear, I have not resolved this
issue. If the appellant is so minded, he may renew this application before the
division assigned to hear the appeal.

[discussion with counsel re. dispensing
of appellants signature on the form of order]

[49]

FITCH
J.A.
: Mr. [T.], do you understand what they are asking for?

[50]

MR.
N.E.T.
: That I neednt sign the order, I believe, for it to be processed.

[51]

FITCH
J.A.
: Correct. In other words, they will prepare the order reflecting the
disposition of all of the applications that have been put before me today, that
your approval of the order be dispensed with and that it come directly to me
for approval. Of course, I will make sure it is correct.

[52]

I will make that order.

The Honourable Mr. Justice Fitch


