Court of Appeal

Judge:

The Honourable Justice Jamie W.S. Saunders

Appeal Heard:

February 3, 2016, in Halifax, Nova Scotia

Subject:

Civil Procedure Rule 18. Discovery of Non-Party Witnesses. State Immunity Act, R.S.C. 1985, c.   S-18. Jurisdiction. Sovereign Immunity. Commercial Activity. Standard of Review.

Summary:

A group of plaintiffs chose to sue in Nova Scotia for damages they say were brought about by conspiracy and misfeasance on the part of public officials in The Netherlands.  Before filing a defence those defendants brought a motion in the Supreme Court of Nova Scotia seeking a declaration pursuant to the State Immunity Act that this country did not have jurisdiction to hear the case and that any judicial oversight of Dutch regulators and ministries must be left to the Dutch courts.  Before that jurisdictional issue could be heard, the plaintiffs brought two motions seeking orders compelling the discovery of two non-party witnesses pursuant to CPR 18.12.  After a hearing, those preliminary motions were dismissed, and it is that decision which forms the basis of this appeal.

The jurisdictional motion was adjourned pending our decision in this case.  The principal issue to be decided when that jurisdictional motion is heard is whether the plaintiffs will be able to establish that the defendants’ conduct constituted “commercial activity” as an exception under the State Immunity Act, with the result that the dispute could in fact be properly litigated in Nova Scotia.

Held:

Appeal dismissed.  Leave was granted to permit the Court to explain the correct application of CPR 18.  The Rule provides a complete manual for the scope of discovery examination in this jurisdiction.  Its provisions are designed to promote a sensible, sequential, timely, and inexpensive means to secure evidence by discovery, which will depend upon which of the three routes to discovery has been chosen and how the particular factual matrix underpins such a selection.  The overarching consideration (for parties, counsel and judges) must always be to recognize the explicit purpose of our Rules which is to provide:

1.01       …for the just, speedy and inexpensive determination of every proceeding.

The interpretation and application of the Rules, as a whole, and the interaction between its various parts should be informed by this preeminent goal.

The judge’s reference to “commercial activity” was simply to provide context in explaining his decision.  He properly recognized that whether the defendants’ actions and conduct constituted “commercial activity” under the Act was a matter to be dealt with when the jurisdictional motion is eventually heard. 

The judge was also right in finding that the motions were premature, and in recognizing that motions based on state-immunity are fundamentally distinct from motions for summary judgment.

The motions judge’s interpretation and application of Rule 18 was consistent with the plain language, purpose and historical evolution of Nova Scotia’s Civil Procedure Rules relating to discovery in this jurisdiction.  The judge applied the proper legal test. He did not err in principle.  Neither will his decision produce a patent injustice.

The appeal is dismissed with costs to the respondents.