SUPREME COURT OF NOVA SCOTIA Citation: Cram v. Nova Veterinary Clinic Ltd., 2016 NSSC 181. and

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: Cram v. Nova Veterinary Clinic Ltd., 2016 NSSC 181 Date: Docket: Hfx No Registry: Halifax Between: John (Jack) Cram and Plaintiff Nova Veterinary Clinic Ltd. (Nova), Dr. Brian Manuel, Dr. Michael Howlett, Ms. Sylvia Bush, Nova Scotia Veterinary Medical Association (NSVMA), Brian MacInnis, Dr. Ed MacAuley, Dr. Elizabeth Croft, Dr. Fran Minty, Sandra McCulloch, Dr. Lisa Welland, Dr. Julie Weste Respondents Judge: Heard: Counsel: The Honourable Justice Jamie Campbell July 7, 2016, in Halifax, Nova Scotia John (Jack) Cram, self-represented Plaintiff (not present) Joseph Burke and Roy Argand, for the Respondents Nova Veterinary Clinic Ltd. et al Douglas Tupper and Victoria Crosbie, for the Respondents Nova Scotia Veterinary Medical Association et al

2 Page 2 By the Court (Orally): [1] John (Jack) Cram has managed to accuse just about everyone he has dealt with in the Nova Scotia legal system of being corrupt. I have the confident expectation that I will now be specifically named as being in that company, at least to the extent of being biased and vindictive. I say that without having had the opportunity to meet Mr. Cram. He sent a letter dated July 5, 2016 requesting, or perhaps more accurately demanding, an adjournment of today s hearing on July 7, On the fourth and final page of that letter he says, There is no reason other than the bias and vindictiveness displayed so flagrantly by your predecessor, to refuse the adjournment, while there is no reason, with the terms I propose below, not to grant it. Mr. Cram indicated in his letter that he would not be attending court on July 7, I responded to Mr. Cram and counsel on July 6, 2016 denying the adjournment request. [2] Mr. Cram s reasons for the adjournment included his apprehension with regard to what might happen to him if he came to court before a judge in Halifax. He related that when he last appeared in court he was accused of slandering the judge and of contempt. He says that he was threatened with the fifth floor, which he took to mean jail. The fifth floor of the Law Courts in Halifax does not contain jail cells. It is the location of the Court of Appeal. On page one of Mr. Cram s letter he says, Because I live alone and have no family or close friends in Nova Scotia who could step in for me, I am very concerned about what might happen to my 6 pets and homes, so frankly I am afraid, not for myself, but for my pets and my property, to attend before a judge in Halifax again. That would be an unusual pitch from any litigant, but it is especially so given that Mr. Cram is a retired lawyer with many years of experience before the courts in another Canadian province. [3] Mr. Cram goes on to state that he is planning to appeal all of his matters directly to the Supreme Court of Canada. He is convinced that he cannot receive a fair hearing before the Supreme Court, or the Court of Appeal in Nova Scotia. He allows that he has not yet tested the Provincial Court. [4] The defendants motions cannot simply be put off unilaterally by him in that way. [5] I have had an opportunity to review the written material provided by Mr. Cram and counsel for the various defendants. On that basis I am providing the following oral decision.

3 Page 3 Summary [6] Mr. Cram s dog, Cougie, was prescribed some medication by a veterinarian just over a year ago. That is when this all started. Mr. Cram then made a complaint to the Nova Scotia Veterinary Medical Association (NSVMA). They found that the veterinarian had not done anything wrong. Mr. Cram applied for judicial review of the decision of that body and the hearing is set for September of this year. [7] Mr. Cram has sued the veterinarian, his clinic, some of the employees of the clinic, the NSVMA, the members of the NSVMA Complaints Committee, and the investigator who acted as consultant to the committee. It might be described as a cluster suit. It names pretty much everyone who has had anything to do with the handling of this matter and makes sweeping allegations of obstruction of justice and insolent, contemptuous and high-handed behaviour. [8] Mr. Cram has made a motion for an order enjoining the law firms of McInnes Cooper and Cox & Palmer from being involved in any way and for an order for the issuing of discovery subpoenas to named individuals. Mr. Cram has no reasonable basis for asserting that the law firms should be enjoined from representing their clients. He says that they should not be permitted to represent groups of defendants. That is not only wrong, it is plain nonsense. That motion is dismissed with costs. There is no need to deal with the motion for discoveries at this stage. The discoveries are with respect to the civil suit. [9] The defendants in that civil suit are seeking an order dismissing the claims against them. They argue that it discloses no cause of action. They are right. Their motions are granted. [10] The defendants in the civil action are also seeking an order preventing Mr. Cram from taking further actions or proceedings against them without leave of the court. The order would not prevent the already scheduled judicial review from taking place and would not affect Mr. Cram s rights to take actions against anyone else. [11] Access to justice is an important issue. Courts are becoming increasingly aware of the importance of making court process more available to the public through the use of more simplified and user friendly forms and procedures and plain language documents. A litigant does not have a right to unrestrained access to the justice system for the purpose of pursuing an agenda that has nothing to do with a legitimate cause of action and everything to do with trying to bring a world

4 Page 4 of hurt down upon other parties through the aggressive abuse of the process itself. The courts are available for the controlled and restrained resolution of legal disputes. They are not available for litigants who grind out legal proceedings for the purpose of inflicting maximum punishment on their adversaries. [12] The motion to restrain Mr. Cram from commencing any further proceedings against the defendants without leave of the court is granted. Background [13] It all began in late June 2015 when Dr. Michael Howlett, a veterinarian in Bridgewater, prescribed medicine for Cougie the Australian Blue Heeler. Dr. Howlett did that without actually examining Cougie. Mr. Cram says that his dog Cougie suffered because of the medicine that was given to her. [14] Since then the matter has been in court numerous times. It has become a circus of motions. Cougie and her treatment seem to have faded into the background as the focus has become the litigation itself and Mr. Cram s perception of widespread corruption within the justice system in Nova Scotia. The procedural details of that litigation point not only to the relentlessness with which Mr. Cram has pursued the dispute, but also to the extent to which the litigation has become less about achieving an outcome than about harassing the other parties. [15] Mr. Cram filed a complaint about Cougie s treatment with the Nova Scotia Veterinary Medical Association. The Chair of the Complaints Committee appointed an investigator and also appointed members to a Complaints Committee. On January 13, 2016, after an investigation of the complaint, the Complaints Committee dismissed Mr. Cram s complaint. That was not the end of it of course. [16] Mr. Cram filed a Notice for Judicial Review at the Supreme Court of Nova Scotia on February 11, On March 3, 2016 he filed an Amended Notice for Judicial Review. On March 29, 2016 Mr. Cram filed a Motion for Summary Judgment with respect to the judicial review matter. On April 14, 2016 Mr. Cram filed a new motion to further amend the Notice for Judicial Review. He appealed the Motion for Directions, which set the matter down for a hearing. He accused Justice Pickup who heard the Motion for Directions of being biased against him. He appeared before Justice Van den Eynden at the Court of Appeal to set the appeal down for a hearing. He accused her of being biased against him. The matter came before Justice Scanlan of the Court of Appeal. Mr. Cram s appeal was

5 dismissed. In doing so, Justice Scanlan did not mince words. Mr. Cram accuses him of bias as well. Page 5 [17] Mr. Cram filed a motion on April 27, 2016 seeking an injunction restraining the NSVMA and its counsel from conducting themselves in an adversarial or nonimpartial way in the judicial review. The Motion for Summary Judgment on the judicial review matter and for an injunction to prevent McInnes Cooper and Cox & Palmer from being involved in the matter were set for May 16, 17 and 18, 2016 by Justice Lynch. Mr. Cram told the Prothonotary that Justice Lynch had abused her authority and must be disqualified for partiality and bias. Those motions were heard before Justice Warner. In the course of that hearing Mr. Cram referred to Justice Warner as a crook. The motions were dismissed. [18] So, at this point the matter is set for a hearing of the judicial review in September. Recently, on the judicial review matter, Mr. Cram has indicated that he will not correspond with the lawyers and will not acknowledge their correspondence. He has indicated that he intends to apply directly to the Supreme Court of Canada claiming that there was no doubt that the lawyers involved in his matters, have all participated in and/or plan to participate in criminal obstruction of justice always with the Nova Scotia Supreme Court and Court of Appeal cooperation on demand. [19] Mr. Cram has not limited his attention to administrative law matters. He started this civil action against the veterinary clinic, Dr. Howlett, the NSVMA, the investigator, and the Complaints Committee. That was commenced on March 29, Mr. Cram claims specific liquidated damages as well as exemplary, aggravated, and punitive damages as well as an injunction to prevent them from committing further obstruction and perversion of justice. [20] In the civil action Mr. Cram has filed a motion to enjoin the law firms of McInnes Cooper and Cox & Palmer from representing any party in the action. The motion is also for the issuance of discovery subpoenas. [21] When he was told that they intended to bring a motion to have his case dismissed for failing to disclose a reasonable cause of action, Mr. Cram responded by on April 20, In Douglas Tupper s affidavit, Tab M, Mr. Cram said, in part:

6 Page 6 4. Also keep in mind that your clients may also be prosecuted, by the Crown or by me..(sic) Your stance for them doesn t exactly make me think they are not deserving of time behind bars. Keep it up and watch me. [22] Mr. Cram has threatened criminal prosecution against some of the individuals involved for obstruction and perversion of justice. Mr. Cram filed a motion seeking an order of prohibition against the Attorney General of Nova Scotia to prevent the Director of Public Prosecutions, all Nova Scotia Public Prosecutors and Crown Attorneys, ad hoc Crown lawyers, all of their staff, and agents from intervening, staying, interfering, involving themselves or any police, including but not limited to the RCMP, from any involvement, investigation, interference, in any way in any criminal charges that may result from informations sworn on April 12, 2016 by the Applicant herein. [23] In addition to the judicial review, motions, civil action, motions relating to the civil action, and the private prosecutions, he has also written to Chief Justice Michael MacDonald and Chief Justice Joseph Kennedy. Mr. Cram makes a wide variety of accusations and concludes his June 2, 2016 letter (Douglas Tupper s affidavit, Tab P) with the statement, What ever became of The Rule of Law in Canada? Power corrupts and absolute power such as our Judges have, corrupts absolutely! Defendants Legal Counsel [24] Mr. Cram s assertion that McInnes Cooper and Cox & Palmer should be enjoined from being involved in any way in the litigation is unfounded. The basis is said to be that they are in a conflict with respect to the interests of the individual defendants as against one another. That is an issue for the defendants themselves, not for the plaintiff. [25] Mr. Cram has continued to press the issue of a conflict involving Marjorie Hickey, Q.C. of McInnes Cooper. Ms. Hickey is the spouse of Justice Robert Wright. That does not mean that no lawyer from that firm can appear before any judge of this court. [26] The motions for injunctions preventing McInnes Cooper and Cox & Palmer from being involved is dismissed with costs in the amount of $1,000 for each group of defendants, payable forthwith.

7 Page 7 Summary Judgment [27] Mr. Cram started an action against Dr. Howlett, the veterinary clinic, some of its employees, the NSVMA, various members of the NSVMA, and the investigator who acted as a consultant to the Complaints Committee. The claims arose from Cougie s treatment and from the manner in which the complaints about that treatment were handled. Insofar as it is possible to decipher the claims, they involve negligence on the part of Dr. Howlett, the clinic, and the employees. As for the NSVMA defendants, it alleges that they are accessories to the crimes of the veterinary clinic and Dr. Howlett, that they have obstructed Mr. Cram s efforts to obtain justice and have withheld evidence from Mr. Cram. [28] The defendants have each made a Motion for Summary Judgment on the basis that the Statement of Claim does not disclose a cause of action, or make a claim that is clearly unsustainable when the pleading is read on its own. The issue is not whether the plaintiff has a claim, but whether the Statement of Claim discloses a cause of action. The pleadings have to contain sufficient material facts to allow the opposing party to understand the case to be met. It prevents the issues from being enlarged at the time of the trial and sets out the real point to be decided. A plaintiff cannot simply allege negligence without pleading the necessary elements. [29] To make a claim for negligence Mr. Cram would have to plead facts that if proven would establish the elements of that tort. Those are: duty of care, breach of the duty of care, and damages arising from that breach. [30] In the Statement of Claim Mr. Cram alleges that Dr. Howlett and the clinic were negligent in prescribing medication for Cougie without physically examining her. What he has not pleaded however, is the standard of care and how that standard of care is alleged to have been breached. Also there are no facts pleaded to identify a causal link between the allegedly negligent conduct and the damages suffered. [31] Cougie was subsequently diagnosed with a bowel infection. There is nothing in the pleadings to link the bowel infection with the prescription of the medication by Dr. Howlett, or any treatment, or lack of treatment by the clinic. [32] The Statement of Claim does not plead material facts that if proven would establish a claim against Dr. Howlett, the clinic, or its employees.

8 Page 8 [33] The claims against the NSVMA, the individual members of the Complaints Committee, and the investigator are allegations and accusations. They are not causes of action. Importantly, they are clearly unsustainable. [34] The claims against the NSVMA and the members of the Complaints Committee are based upon actions carried out by those defendants in the exercise of their statutory duty under ss. 23 and 24 of the Veterinary Medical Act. Section 45 of the Act provides that the NSVMA, the Council, and all committees of the Council are not liable for any loss or damage suffered as a result of anything done in good faith in the administration of the Act. There is no allegation in the Statement of Claim that any of the committee members acted outside their capacity as committee members. [35] Mr. Cram has also included an allegation of bad faith and bias. That is an allegation. There are no material facts set out in the pleadings to support the allegation. A litigant has an obligation to state the factual basis for the claim. That does not mean pleading evidence. It does mean pleading facts that would allow the defendants to know the case they have to meet. A simple assertion of bias is not sufficient to allow a litigant to get around the statutory, or common law immunity that protect decision makers acting in the course of their duties. [36] The Statement of Claim does not set out a reasonable cause of action against the committee members and the NSVMA. [37] The claim against Brian McInnes is different. He is the investigator who acted as a consultant to the NSVMA. He would not be covered by the immunity afforded to the NSVMA and the committee members. However, the common law immunity does apply to him. [38] Immunity applies to functions that are legitimately integral to the decisionmaking process. Mr. McInnes was appointed by the Chair of the Complaints Committee under the authority of s. 23 of the Act. His work was under the statutory mandate and part of the investigative and adjudicative process. [39] Both motions for summary judgment are granted. Costs on the motions are awarded to each group of defendants in the amount of $2,000 for each motion.

9 Page 9 Suit Injunction [40] What the defendants are seeking here is not a broad order that would prevent Mr. Cram from starting any actions without first seeking leave of the court. That kind of order might be appropriate in a situation where a person has shown a pattern of starting vexatious law suits against anyone who gets in his way. That engages a consideration of the public interest and protecting as yet unknown people from the person against whom the order is made. Mr. Cram is not a recreational litigant who just sues people because he can. He is focused on the issue that started only a year ago when Cougie was treated by Dr. Howlett. In the course of dealing with that single issue he has not waited for it to be resolved in the judicial review of the NSVMA. He has started a law suit, tried to have criminal prosecutions started against a number of those involved, and made a number of unsuccessful motions. [41] What the defendants here are seeking is an order preventing Mr. Cram from starting other actions against them, or taking any further steps against them without obtaining leave from the court. [42] Civil Procedure Rule 88 confirms the court s inherent jurisdiction to control its own process. A judge who is satisfied that a process of the court is abused may provide a remedy that is likely to control the abuse. That can include an injunction preventing a party from taking a step in a proceedings without permission of a judge and may include any other injunction that tends to prevent further abuse. [43] The first issue then is whether Mr. Cram s behaviour amounts to an abuse of the court s process so that a remedy of any kind should be ordered. [44] Mr. Cram has not been successful yet in court. People have the right to be persistent unsuccessful litigators. Mr. Cram argues that it is proof that people within the Nova Scotia legal system are biased against him. [45] Mr. Cram started with the judicial review and filed motions in that proceeding. The motions have been dismissed and he has appealed. He started this civil action against everyone who was involved. He has filed motions in this action as well. He has started criminal prosecutions. They are also against the same people. He has issues with and made serious allegations regarding the Chief Justice of Nova Scotia, the Chief Justice of the Supreme Court of Nova Scotia, various named and unnamed judges of the Supreme Court, the Prothonotary of the Supreme Court, the Court Administrator, the Attorney General, the Director of

10 Page 10 Public Prosecutions (DPP), the person who answers the phone at the office of the DPP, the Nova Scotia Barrister s Society, the Nova Scotia Veterinary Medical Association, the members of the Complaints Committee of the NSVMA, Nova Veterinary Clinic Ltd., various named veterinarians, and generally all veterinarians in Nova Scotia, and of course, the opposing lawyers. [46] Mr. Cram is convinced that he is right. Everyone else is not only wrong but they are involved in a criminal conspiracy to thwart his quest for justice. People are allowed to think that way. They are allowed to rant, rage, and rave about the injustices that they perceive. Within certain limits they can vent their anger on the internet, where they will undoubtedly find others who share their views. [47] Mr. Cram holds the Nova Scotia justice system in utter contempt. His lengthy letter dated June 2, 2016 (Douglas Tupper s affidavit, Tab P) to Chief Justice MacDonald is ample evidence of that. It is a bizarre tirade regarding the legal holocaust by lawyers, judges and staff of the courts, which he suggests has been watched and perhaps even coached and applauded from the sidelines by Chief Justice MacDonald, Chief Justice Kennedy, the Deputy Attorney General, the Director of Public Prosecutions, the Barristers Society, the Attorney General s office and the Court Administrator. He refers to your picayune-rule-enforcingpower-abusing-justice-obstructing let s give Mr. Cram yet another ask and answer type (non) reply from the Chief Justice (p. 1). He says that judges and judicial staff have stigmatized and slandered him due to irrelevant events 22 years ago, and allowed rampant personal bias throughout the courts added to partiality toward opposing counsel who is a Supreme Court judge s wife and her lyin-ryan junior Mr. Baxter. He refers to counsel s corrupt-out-of-legal control-vet-protectingdamn-the-public-interest-perverting/obstructing-justice-nsvma, that poorprovince-wide organization-downtrodden-by-little-old-all-by-himself-jack Cram (p. 2). He says that judges, lawyers and Crown counsel obviously directed and orchestrated to do whatever they want - legal or not to - shut down my own personal quest for justice (more for the unjustifiable suffering of my dog Cougie than for me), thus your courts are secretly NEITHER INDEPENDENT NOR IMPARTIAL (p. 3). [48] With respect, it is hard to imagine that Cougie much cares who wins which application or motion.

11 Page 11 [49] Mr. Cram goes on to say to Chief Justice MacDonald, that he has no faith or trust whatsoever in the Nova Scotia courts, or by association and irresistible inference, in Your Lordship, to be fair, just or impartial. (p. 3). [50] Mr. Cram himself has indicated that he has no faith in achieving fair or just result from a justice system that he believes is entirely corrupt. His legal manoeuvrings now have nothing to do with achieving a positive result, but are intended to serve as a vehicle by which Mr. Cram can vent his frustration and frustrate those whom he sees as his persecutors. [51] The courts have to remain open to difficult, obstreperous, annoying, unreasonable, foolish, irrational, wasteful, and mean-spirited people. They are not restricted to internet blogs and postings on news websites. To some extent the legal system can become an open mike for the angry. But when a person crosses over into using multiple legal processes themselves as a cudgel to wreak vengeance on an opponent, the court is obliged to restrain them. [52] The motion to restrain Mr. Cram from commencing any proceeding or taking any further step against the defendants in this action without first obtaining leave of the court is granted. The hearing scheduled for September 27 and 28 for judicial review will proceed. Costs on the motion are awarded to the Nova Scotia Veterinary Medical Association (NSVMA) defendants in the amount of $7,500 and to the Nova Veterinary Clinic Ltd. (Nova) defendants in the amount of $5, During the course of argument counsel for the NSVMA defendants referred to Mr. Cram s of April 1, 2016 (Douglas Tupper s affidavit, Tab N) to Ms. Hickey as evidence of Mr. Cram s intent with respect to the legal procedures being used: In closing, let me say that the longer you and your clients wait to fully disclose the whole truth and make a serious effort to resolve this entire matter, the more time I will have to expose the criminal and other truth on my own terms and have less and less inclination for compassion and more and more for vindication, punishment and additional compensation for all the extra work and stress being required to discover the truth without yours or your clients candour. We are now into the second week of the 2 weeks from my of March 23 during which I suggested you send that to all your clients and seek immediate instructions for a proposal to resolve everything, at least between

12 Page 12 myself and NSVMA. I have seen nothing from you not a word. If you miss that deadline, then be prepared for an intensified onslaught of other proceedings pertaining to NSVMA and your firms actions on several fronts including possible criminal charges, a possible request for an investigation by the Law Society, the application for an injunction against your firm acting (in view of the potential conflicts and counselling), and my representations to the court on April 18 about the truth that I have, by then unearthed, with no help from you your clients, Mr. Romney and his client(s) and in spite of further obstruction of justice in my attempts at process service by Dr. Manuel with the aid of Mr. Romney s office and possibly Ms. Bush. (emphasis added) Counsel also directed my attention to Justice Scanlan s comments in Cram v. Nova Scotia Veterinary Medical Assn., 2016 NSCA 44, at paras. 23 and 25: 23 On the one hand, Mr. Cram challenges the credibility of the court participants including the judges in the court below and even the judges of the Court of Appeal. He now resorts to that system, taking every possible legal step in every imaginable type of action. Each time he evokes a necessary response by those whom he drags into the various proceedings. It is not lost on me that Mr. Cram says that he has some 25 years of legal experience as a lawyer. It may be that he has been prepared to use every possible tool that he has acquired over those many years to defeat or at least force the respondents into submission. I am satisfied that this interlocutory appeal is intended to be nothing more a means to abuse the Association and Dr. Howlett as opposed to being a means to legitimately protect his substantive rights. This type of abuse cannot be condoned by the courts. Dismissal at this stage, combined with the order for costs, is the only way to curb abuse at this stage. I will return to the issue of costs below. 25 The appellant is coming before this Court wasting not only judicial resources, but also the resources of the opposing parties. Those parties are dealing with a full frontal assault by Mr. Cram. With the number of proceedings now underway, as initiated by Mr. Cram, he should be aware that if any of those proceedings are abusive in nature he may face cost consequences. If they are abusive and fail, then he must know that the targets of his abuse are not to be left to finance the cost consequences alone. The more abusive or devoid of merit, the more the costs against Mr. Cram will be. The appeal that I am dealing with should never have been filed. Repetition of this course of action may lead to costs closer to solicitor-client costs. I will leave that to another day or another judge, to be determined based on the circumstances. Mr. Cram is, however, forewarned of possible cost consequences. (emphasis added)

13 Page 13 [53] The total costs awarded for this mater are $10,500 to the NSVMA defendants and $8,000 to the Nova defendants. Campbell, J.