How this Rule Works

This Rule deals with three separate subjects:

1. judicial review in R.7.05-7.11;
2. habeas corpus in R.7.12-7.18; and
3. appeal to the Supreme Court in R.7.19-7.24.

Rule 7 does not deal with Summary Conviction Appeals under the Criminal Code or Summary Proceedings Act, R.S.N.S. 1989, c.450, both of which are dealt with in Rule 63 – Summary Conviction Appeals. Appeals to the Nova Scotia Court of Appeal are addressed in Rule 90 – Civil Appeal and Rule 91 – Criminal Appeal.

In Rule 7, “decision” is broadly defined to include actions taken, or purportedly taken, under legislation, omissions to take required action, and failure to make a decision.

Rules 7.25-7.29 apply to all judicial reviews and appeals. They provide for the appellant to pay for the appeal book (R.7.25), allow for consolidation of judicial reviews or appeals at the motion for directions (R.7.26), provide a procedure where a party seeks to introduce fresh evidence (R.7.27), and allow for a stay pending the outcome of the appeal or judicial review (R.7.28). Rule 7.29 allows the prothonotary to move to dismiss stale appeals, judicial reviews, and notice for habeas corpus where no hearing date is set in five years.

Judicial Review

The judicial review process has become much more common than it was in the 1970s when the previous Rules came into effect. The court developed practices for dealing with judicial review but for the most part, these practices were not codified. Rule 7 addresses that gap and creates a structure anchored by an initial motion for directions.

Applications for judicial review are commenced by filing a Notice for Judicial Review in Form 7.05 within 25 days after the decision is communicated, or 6 months of it being made. The notice must include detailed information about the proceeding and the grounds for review (R.7.05(4)). It is accompanied by a motion for directions, which must be heard no later than 25 days after the notice is filed. The applicant must obtain the date for the motion for directions and file the application no more than one day after receiving the date and time from the court (R.7.06).

The applicant must then notify each respondent and the applicable Attorney-General in accordance with the procedures set out in Rule 31 – Notice. The decision-making authority is a respondent (R.35.04) and must, within 5 days after being notified of the application, produce the record, make arrangements to produce it, or undertake to appear on the motion for directions (R.7.09). The decision-making authority is subject to costs consequences if it fails to comply.

An application for judicial review is defended by filing a notice of participation in Form 7.08 no more than 10 days after receiving notification.

At the motion for directions, a judge can give any directions necessary to organize the judicial review (R.7.10).

Rule 7 is silent on the procedure to be followed at the review application itself. The remedies in Rule 7.11 are reflective of the common law, including dismissal, setting aside the decision and any legal process flowing from it, an injunction, a declaration, or any relief formerly available by prerogative writ.

Habeas Corpus

Any person under detention may file a notice for habeas corpus in Form 7.12 to have the legality of his or her detention determined by the court. Rules 7.12-7.18 replace the previous R.58.

The strict time lines under the previous R.58.14 have been abandoned in favour of judicial discretion but R.7.13 makes clear that such matters take priority over all other business of the court. An application for habeas corpus is followed immediately by the court providing a date to give directions under R.7.14. Abuse of habeas corpus is treated as an Abuse of Process under R.88.

Rule 7.15 provides that bail may be granted pending the outcome of the application, consistent with s.11(e) of the Charter. Bail was not addressed in the previous Rule, perhaps because the application was meant to proceed rapidly to a determination. Rule 7.15 leaves open the question of what procedure should be followed at a bail hearing, and whether it would be similar to hearings under s.515(10) or reviews under s.520 of the Criminal Code.

Appeal

Rules 7.19-7.24 govern appeals brought to the Supreme Court under legislation, unless the legislation or regulations establishes procedures to be followed (R.7.04).

An appeal is commenced by filing a detailed notice of appeal in Form 7.19 no more than 30 days after the decision under appeal is communicated to the appellant, or six months after it is made. Both deadlines are extendable under R.2.03 where circumstances warrant.

The notice of appeal must provide for a motion for directions to be heard no more than 25 days after the notice is filed (R.7.19(2)) which requires the appellant to obtain a date and time immediately before filing the notice (R.7.21).

The appellant must notify each respondent no less than 10 days before the motion for directions. A notice of cross-appeal or contention must be filed no less than 1 day before the motion for directions (R.7.20).

Rule 7.24 sets out the contents of the appeal book, including the transcript (or agreed portions).

Highlights of Changes

Features common to each process include a detailed notice commencing the proceeding followed quickly with a motion for directions to organize it and fix a hearing date. The amount of required information means that counsel for applicants and appellants will need to organize the case promptly. The 25 day time limit for hearing the motion for directions means counsel will have to make themselves available on relatively short notice.

The previous R.56 contained very little detail about the mechanics of applications for judicial review. The addition of forms will be particularly useful in proceedings involving self-represented litigants.

The deadline for filing a notice of judicial review is considerably shorter than under the previous R.56.06. It now must be filed within 25 days of the decision being communicated, or six months after the decision (or failure to decide) is made (R.7.05(1)). However, the deadline is now extendable under R.2.03(1)(c). The previous R.56.06 did not permit extensions.

Practice Tip

Appeals from the Small Claims Court are conducted pursuant to the regulations made under the Small Claims Court Act, which prevail over R.7. No motion for directions is necessary.