Date: 20011016
NOVA SCOTIA COURT OF APPEAL
[Cite as: Barager v. J.D. Irving, Ltd., 2001 NSCA 144]
Roscoe, Bateman and Cromwell, JJ.A.
BETWEEN:
BARRY BARAGER
Appellant
- and -
J.D. IRVING, LIMITED
Respondent
REASONS FOR JUDGMENT
Counsel: Bruce W. Evans for the appellant
John H. Graham and John Rice for the respondent
Appeal Heard: October 15, 2001
Judgment Delivered: October 16, 2001
THE COURT: Leave to appeal is granted and the appeal is allowed per reasons for judgment of Cromwell, J.A.; Roscoe and Bateman, JJ.A. concurring.
CROMWELL, J.A.:
[1] This is an application for leave to appeal and, if granted, an appeal from an interlocutory order made by The Honourable Chief Justice Joseph P. Kennedy in chambers. The appellant, plaintiff in the action, applied to the learned chambers judge for production of certain documents and related information. The respondent, defendant in the action, applied for leave to amend the defence. The chambers judge dismissed the appellant’s application for production and granted leave to the respondent to amend the defence, ordering that the costs of the application to amend would be in the cause. The appellant appeals the dismissal of his application for production and the chambers judge’s refusal to award to the appellant its costs in any event of the cause of the defendant’s application for leave to amend the defence.
[2] At the hearing of the appeal, leave to appeal was granted and the appeal allowed with reasons to follow. These are the reasons.
[3] The appellant’s action against the respondent is for wrongful dismissal and, contrary to the assertion of the respondent, negligent misrepresentation. The claim in negligent misrepresentation is that the respondent breached a duty of care owed to the appellant with respect to certain pre-contractual misrepresentations allegedly made prior to and at the time of hiring. More specifically, these allegedly negligent misrepresentations relate to the security of the network analyst position for which the appellant was hired. It is alleged in the statement of claim that the respondent made representations to the appellant that such a position, in fact, existed, that it would continue for at least six months and for an indefinite time beyond six months and that it was reasonably secure. In fact, the appellant’s employment was terminated approximately one week after commencing work.
[4] The appellant discovered Akhil Bhandari, the general manager of the IT Division of the defendant. Mr. Bhandari testified that, prior to the appellant being hired, the defendant made an assessment as to whether a second full-time position in Halifax was justified. This, of course, was the position for which the appellant was ultimately hired. Mr. Bhandari testified that the result of this assessment was that a second full-time position in Halifax was needed and that the decision was made in November and December of 1999 to fill that position. Mr. Barager was hired and commenced work at the end of February. The assessment leading to the conclusion that a second full-time position was justified was based, in part, according to Mr. Bhandari, on consideration of how much IT work would be done by the IT Division for the Halifax Shipyards and consideration of the amount of IT Division work that was being out-sourced and which, with an additional employee, could be done in-house.
[5] The documents which the appellant sought to have produced included all written requisitions in the respondent’s possession, custody and control relating to requests to the Information Technology Division of the respondent during the period January 1, 1999 up to and including July 14, 2000 for services to be provided to Halifax Shipyards and the names, addresses and telephone numbers of all independent contractors working for the Information Technology Division of the respondent in the Halifax area from January 1, 1999 up to and including July 14, 2000, with copies of related documents which provide this information.
[6] In my respectful view, the learned chambers judge erred in holding that these documents were not sufficiently relevant to justify their production. The appellant claims in his action that the respondent was negligent in making representations about the security of the position for which he was hired. As noted, Mr. Bhandari on behalf of the respondent testified on discovery that an assessment was made and the conclusion reached that there was adequate work to justify the hiring of a new, full-time position. That assessment was said to be based on the amount of work available from Halifax Shipyards and the amount of work currently being out-sourced which could be done in-house if a new person were hired. The documents sought potentially relate to these very issues. No objection, other than lack of relevance, was advanced in opposing production. These documents, therefore, ought to be produced and we so order.
[7] With respect to the appeal as to the chambers judge’s order as to costs, we would vary that order only for the purpose of giving effect to what we understand to have been the learned chambers judge’s intention. Although the chambers judge ordered costs in the cause, it is clear from his reasons and exchanges with counsel that he intended the appellant to have his costs of the defendant’s application to amend the defence in any event of the cause but to have the quantum of those costs assessed by the trial judge. We, therefore, amend the chambers judge’s order to provide that the appellant/plaintiff will have his costs of the defendant’s application for leave to amend in any event of the cause, the quantum of such costs to be determined either by the trial judge or, in the event that the case does not proceed to trial, in the normal course after final disposition.
[8] The appellant also should receive his costs of the application seeking production of documents both before the chambers judge and on appeal. We would fix the costs, in total, in the amount of $1500 plus disbursements incurred in both courts as agreed or taxed.
Cromwell, J.A.
Concurred in:
Roscoe, J.A.
Bateman, J.A.