The Decision Is In…

“DON’T PANIC”

Hitchhikers Guide to the Galaxy by Douglas Adams

Dear CANS members and supporters. As many of you know we went to Supreme Court in Yarmouth on January 24th of this year to argue for Public Interest Standing in the matter of CANS v Strang et al. On August 28 (seven months later) we heard back from the Court that the motion had been dismissed by  the Nova Scotia Supreme Court. 

So  let us first take the wise council given us by Mr Adams and indeed not panic. While we obviously would have preferred to have prevailed in our hard fought effort, CANS without reservation fully accepts Justice Keith’s decision in this matter. We have closely read the decision and find much in it that is favourable to the actual Judicial Review. So let’s put this in its proper context.

It was somewhat “out of the box” for us to request Public Interest Standing and it would have been a legal first for this to be awarded to an unrepresented Litigant. Despite this high bar we made the decision to pursue it and despite the decision do not regret it.

The Board of CANS continues to believe, and indeed Justice Keith agrees, that the matters we put before the court are in the Public Interest. It is our suitability to be granted official legal Public Interest Standing he found lacking. We know we gained invaluable experience and increased competence through its pursuit.

This decision in no way affects the actual Judicial Review. We have “Private Standing” to argue the matter on its merits in our own right as a corporate person as does our co applicant JM as represented by his guardian KM. In fact in the hearing for public interest standing the crown admitted to this fact several times. It formed part of the crown’s argument against us being awarded Public Interest Standing. This also factored into the Justice’s decision to not grant it to us as failing to grant it does not prevent the matter from being fully heard.

Justice Keith has a duty to ensure that only the most qualified applicants are given the incredible privilege of speaking on behalf of every citizen of Nova Scotia. We cannot dispute the fact that we are a very young organization, or that we have no history of successful litigation. For these and other technical reasons of Law Justice Keith  found as he did. But we take note below  of the statements made by Justice Keith in his lengthy and considered decision that we find favourable to our cause. The link to the decision on CanLII is here. ¹

para. [47] As a preliminary comment, I do not consider CANS to be a litigious “busybody”. In its Corporate Mission Statement CANS clearly indicates that its founding principle includes a commitment to upholding the legal and Constitutional rights of Nova Scotians through legal action. They express a desire:

“To enable and support human and constitutional rights and freedoms through fund- raising, community engagement and smart activism. To nurture a safe, healthy and economically thriving environment for our future generations through education and awareness-training” (para 21)

para. [48]  The CANS Vision Statement also describes its goals as being the pursuit of: 
“A society where governments and their agents are held accountable by an engaged citizenry and where transparency in government actions and decisions is the default. An aware collective with a strong focus on actions that nurture and protect our future generations, are informed by our collective history and which support our love of home, family and faith in the supremacy of God, the Great Creator, with committed real time action to achieve such a future for Nova Scotians to come.” 
(at para. 22) 


para. [49]  As well and for emphasis, I am not prepared to conclude that the issues before 
me are now academic or moot. The Respondents have an outstanding motion to dismiss the proceeding on the basis of mootness. That will be heard in the future as a separate matter.

para. [52] The comments above relate to CANS’ arguments around fraud and bad faith. Other arguments are less controversial. For example, CANS’ claim that the Impugned Orders are ultra vires speak more forcefully for themselves. As Wagner, C.J. stated in Council of Canadians with Disabilities: “A statute’s very existence, for example, or the manner in which it was enacted can be challenged on the basis of legislative facts alone…” (at para. 63)

para. [54] We are relatively early in the proceeding. While I am concerned that the seriousness of certain claims demanded a degree of particularity, I am not prepared to summarily reject the issues themselves as being frivolous or so weak as to be unworthy of public interest standing.

para. [65] In considering this issue, there are aspects of CANS’ efforts that I accept militate in favour of public interest standing. I agree the issues which CANS raises are of public interest and transcend it as an organization. For the purposes of this motion, I am also prepared to accept that CANS’ concerns may have an impact on others who similarly seek declaratory relief for past actions.

The Citizens Alliance of Nova Scotia remains as resolved as we have always been to be ultimately successful in holding the CMOH  to account. We remain steady in our stance against the Respondents’ motion to dismiss the case as “moot” and are prepared to present our case at the earliest pleasure of court. We share Justice Keith’s opinion regarding our base cause of action that “CANS’ claim that the Impugned Orders are ultra vires speak more forcefully for themselves.”

We, the board members of CANS, know our hearts are strong and believe our path is clear. We will continue to follow it without fear with all the passion and skill we possess and we thank all of you for your amazing support.

Fortune favours the brave

1. https://www.canlii.org/en/ns/nssc/doc/2024/2024nssc253/2024nssc253.pdf ↩︎