C.A. No. 02919
NOVA SCOTIA COURT OF APPEAL
Freeman, Hart and Roscoe, JJ.A.
Cite as Sydney Steel Corp. v. M.A.Hanna Co., 1993 NSCA 176
B E T W E E N:
SYDNEY STEEL CORPORATION ) David A. Miller, Q.C., and
) Nancy I. Murray
appellant ) for appellant
)
)
- and - )
)
M. A. HANNA COMPANY ) Harvey L. Morrison
) for respondent
respondent )
)
) Appeal Heard:
) October 12, l993
)
)
) Judgment Delivered:
) October 12, l993
)
)
)
)
THE COURT: Appeal dismissed with costs per oral reasons for judgment of Freeman, J.A.; Hart and Roscoe, JJ.A., concurring.
The reasons for judgment of the Court were delivered orally by:
FREEMAN, J.A.:
The respondent Hanna is suing the appellant Sydney Steel for breach of contract alleged to have occurred in 1986 but relating to events beginning in the 1970s. Carl E. Nickels was president and chief executive officer from 1984 until he retired on December 1, 1988, and a senior executive and director during most of the relevant period. He was examined on discovery on March 1, 1990, after he retired. The transcript of his evidence is 220 pages long. Many of his answers were framed to reflect what he thought in certain circumstances.
This appeal is from the disallowance by the case management judge of the following interrogatory addressed to the respondent company to be "answered by any officer or agent competent to testify on your behalf who knows the facts about which the inquiry is made:"
"1. Having reviewed the Discovery Transcript of Carl E. Nickels taken March 1, 1990, a true copy of which is attached as schedule "A" hereto, please do the following:
(a) Identify each and every question, the answer to which M.A. Hanna Mining Company does not agree is complete, true and accurate; and
(b) Answer each question so identified."
Justice Jamie Saunders found "it would be oppressive and unfair to expect the plaintiff corporation to answer the single interrogatory as framed. I think it is so open ended as to be unacceptably general."
It is clear from the submissions of counsel that the question relates to Rule 18.14(1)(b) of the Rules of Civil Procedure, which provides:
" 18.14. (1) At a trial or upon a hearing of an application, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at an examination for discovery, or who received due notice thereof, for any of the following purposes, . . .
(b) where the deponent was a party, or an officer, director or manager of a party that is a corporation, partnership or association, for any purpose by an adverse party."
In Clayton Developments Limited v. Nova Scotia Housing Commission (1980), 50 N.S.R. (2d) 214, Cowan C.J.T.D. held that for the deposition of an officer, director or manager to be binding on a corporation as its own admissions, "that person should be in a position to bind the corporation and the relevant time is at the time when the question is asked and the answer is given."
Referring to that case in Midland Doherty Limited v. Rohrer (1983), 62 N.S.R. (2d) 73, at p. 75, Hallett J. as he then was said:
"The basis for the admissibility of a deposition of this sort pursuant to paragraph (b) is that the evidence constitutes an admission against the party or the corporation by a person with some authority."
Former officers, directors or managers of a company lack that authority; their thoughts and intentions, subjective and objective, are no longer those of an alter ego or directing mind of the company. Regardless of their relationship with the company at the time of their departure and following it, such persons are no longer accountable to the company.
The interrogatory in question appears to have been crafted to bind the company to the utterances of its former official at his discovery, except to the extent they are specifically disclaimed. That is to say, its effect is to circumvent Rule 18.14(1)(b). In form, as noted by the case management judge, it is so general and open ended that it casts an unfair burden on the respondent.
We are in agreement with the learned judge, but even if we were not, the matter is an interlocutory one within his discretion. The position of this court in such matters has been stated repeatedly:
"This court is an appeal court which will not interfere with a discretionary order, especially an interlocutory one such as this that is now before us, unless wrong principles of law have been applied or patent injustice would result."
(See: Matthews, J.A. in Nova Scotia (Attorney General) v. Morgentaler (1990), 96 N.S.R. (2d) 54 at pp. 56 and 57, quoting former Chief Justice MacKeigan in Exco Corporation Limited v. Nova Scotia Savings and Loan et al. (1983), 59 N.S.R. (2d) 331 125 A.P.R. 331 (C.A.) at p. 333. See also Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143 (S.C.A.D.)).
The appeal is dismissed with costs to the respondent which are fixed at $1,000.
Freeman, J.A.
Concurred in: Hart, J.A.
Roscoe, J.A.
C.A. No. 02919
NOVA SCOTIA COURT OF APPEAL
B E T W E E N:
SYDNEY STEEL CORPORATION ) REASONS FOR
)
appellant ) JUDGMENT BY:
)
- and - ) FREEMAN, J.A.
) (Orally)
)
M. A. HANNA COMPANY )
)
respondent )