Court of Appeal

Nova Scotia Court of Appeal

Citation: Blunden Construction Ltd. v. Fougere, 2014 NSCA 52

Date: 20140529

Docket: CA 423831

Registry: Halifax

Between:

Blunden Construction Limited

Appellant

v.

William Fougere and

Fowler, Bauld & Mitchell Limited

Respondents

Reasons for judgment: 

[1]             After considering the submissions of counsel for the appellant (defendant) Blunden Construction Limited, and the respondent  Fowler, Bauld & Mitchell Limited (which had been joined as a third party by Blunden), we recessed and returned to court to announce our unanimous view that leave to appeal was granted but the appeal was dismissed with reasons to follow.  These are our reasons.

[2]             We are entirely satisfied that Justice Duncan’s decision dismissing Blunden’s motion for summary judgment on evidence pursuant to Civil Procedure Rule 13.04 reflects a keen appreciation of the law and its proper application to the evidence in accordance with this Court’s directions in Burton Canada Co. v. Coady, 2013 NSCA 95. 

[3]             The central issue in the case is whether Blunden failed to contain hazardous dust during construction of an elevator hoistway at a school where William Fougere (plaintiff/respondent) was employed as a teacher, and whether the dust caused his lung condition which has left him seriously ill and disabled.  We agree with Duncan, J. that this is not the sort of case – seen most often in matters involving medical malpractice – where the issues of causation and standard of care are outside the experience of a judge or a jury, such that the trier of fact would necessarily require the assistance of an expert: Szubielski v. Price, 2013 NSCA 151.

[4]             Justice Duncan’s conclusion that there were many important factual issues in dispute which would require a trial to resolve, some of which might well engage an assessment of credibility, finds ample support in the record.

[5]             Accordingly, the judge was right to find that Blunden’s motion failed at the first stage of the summary judgment analysis.

[6]             In our respectful view, the recent decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, has little bearing upon the circumstances, analysis, reasoning or result in this case.  There, Justice Karakatsanis, writing for a unanimous Court, considered the application of a new Rule in Ontario (their Rule 20) which now empowers judges in that province to weigh the evidence, draw reasonable inferences from the evidence, and settle matters of credibility when deciding whether to grant summary judgment.  Those powers are foreign to the well-established procedures and settled law which operate in Nova Scotia.

[7]             We recognize of course the guidance provided by Justice Karakatsanis in her reasons concerning the importance of interpreting summary judgment rules “broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”  She spoke of the values and principles that underlie our civil justice system and raised a clarion call for a shift in culture to provide alternative adjudicative measures to the conventional trial model; and invoke procedures which will provide access to justice that is simplified, proportionate, less expensive, just and fair.  A process for summary judgment is one such measure designed to streamline technical and often cumbersome rules, and enable judges to dispose of appropriate cases, summarily.  In signalling the urgent need for such a transformation Karakatsanis, J. wrote at ¶27-28:

[27]      There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted.  A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges.  This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

[28]      This requires a shift in culture.  The principal goal remains the same: a fair process that results in a just adjudication of disputes.  A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found.  However, that process is illusory unless it is also accessible — proportionate, timely and affordable.  The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

[8]             Karakatsanis, J. emphasized that judges have a critical role to play in ensuring that the case is well suited to summary judgment and presents as one which will allow the judge to decide the facts with confidence and choose a fair and proportionate way to resolve the dispute.  She wrote:

[50]      ... When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective.  Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute.  It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[9]             Justice Karakatsanis cautioned that while such motions can save time and expense, their application can also produce the opposite effect by slowing the pace and adding to the cost of litigation and in that way denying or delaying a responding party’s access to justice.  Thus, judges must be vigilant that such processes are used appropriately and are not abused:

32        This culture shift requires judges to actively manage the legal process in line with the principle of proportionality.  While summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately.  While judges can and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice.  Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.

[10]        Duncan, J. understood that important responsibility when deciding that the host of disputed material facts in this case made it ill-suited to a summary judgment motion and that Mr. Fougere deserved to have his case tried on its merits.

[11]        Before concluding these reasons we wish to emphasize the importance of CPR 13.07 and the bridge it forms with CPRs 5 and 6.  It seems curious to us that this link is often overlooked by litigants, lawyers and the judges before whom they appear. 

[12]        While this Court has repeatedly made it clear that the rules for summary judgment in Nova Scotia do not provide a forum in which to resolve conflicts surrounding material facts or credibility, that does not mean that the only avenue open to litigants in deciding such cases is resorting to the traditional, protracted and often expensive trial model for adjudication.  On the contrary, our Rules offer an assortment of agile implements intended to provide simpler, faster, fair and affordable access to alternative forms of dispute resolution.

[13]        CPR 13.07 provides:

Conference or hearing after dismissal

            13.07 (1) A judge who dismisses a motion for summary judgment on evidence brought in an action must, as soon as is practical after the dismissal, arrange to give directions, unless all parties waive this requirement.

            (2) The judge may provide directions for the conduct of the proceeding, including directions that do any of the following:

            (a)        restrict discovery in view of disclosure made through an affidavit or cross-examination on an affidavit;

            (b)        narrow the issues to be tried by identifying facts not in dispute;

            (c)        regulate disclosure or production of documents, electronic information, or other evidence;

            (d)       permit evidence on the motion for summary judgment to stand as evidence at trial;

            (e)        provide for a speedy trial;

            (f)        provide for a hearing, rather than a trial, under Rule 6 - Choosing Between Action and Application.

            [Underlining mine]

[14]        From this plainly worded Rule, many things are obvious.  Any judge who dismisses a motion for summary judgment is obliged to give directions, as soon as practical, as to how the case will proceed.  CPR 13.07(2) presents a list of illustrations of the types of things a judge might incorporate in his or her directions.  These broad powers include such measures as: restricting discovery; regulating disclosure and production; narrowing the issues; allowing evidence taken at the summary judgment hearing to stand as evidence at the trial; accelerating the pace by convening a speedy trial; or ordering that the case will be decided by a hearing, and not a trial. 

[15]        As noted above, CPR 13.07(2)(f) says:

The judge may ... provide for a hearing, rather than a trial, under Rule 6 – Choosing Between Action and Application.

[16]        This stipulation establishes the link between CPR 13 and CPRs 5 and 6. 

[17]        This Court’s decision in Nova Scotia v. Roué, 2013 NSCA 94 explained the intersection of these two Rules as well as the burden, presumptions and factors that need to be taken into account when determining whether to convert an action into an application, or vice versa.  Considerations such as speed, proportionality, expense, fairness, and accuracy in the assessment of credibility and the search for truth are all accounted for in Rule 6.  For example, CPR 6.02 provides:

Converting action or application

(3) An application is presumed to be preferable to an action if either of the following is established:

(a)        substantive rights asserted by a party will be eroded in the time it will take to bring an action to trial, and the erosion will be significantly lessened if the dispute is resolved by application;

(b)        the court is requested to hold several hearings in one proceeding, such as with some proceedings for corporate reorganization.

(4) An action is presumed to be preferable to an application, if the presumption in favour of an application does not apply and either of the following is established:

(a)        a party has, and wishes to exercise, a right to trial by jury and it is unreasonable to deprive the party of that right;

(b)        it is unreasonable to require a party to disclose information about witnesses early in the proceeding, such as information about a witness that may be withheld if the witness is to be called only to impeach credibility.

(5)        On a motion to convert a proceeding, factors in favour of an application include each of the following:

(a)        the parties can quickly ascertain who their important witnesses will be;

(b)        the parties can be ready to be heard in months, rather than years;

(c)        the hearing is of predictable length and content;

(d)       the evidence is such that credibility can satisfactorily be assessed by considering the whole of the evidence to be presented at the hearing, including affidavit evidence, permitted direct testimony, and cross examination.

(6)        The relative cost and delay of an action or an application are  circumstances to be considered by a judge who determines a motion to convert a proceeding.

[18]        In Roué, Chief Justice MacDonald described the salutary features of Rule 6 and explained how, in appropriate circumstances, its provisions served as a very efficient tool in providing an effective and fair process for alternative adjudicative dispute resolution, given its essential characteristics of flexibility, proportionality, custom design and aggressive case management.

[19]        In our view the wise and creative application of CPR 13.07 in conjunction with CPRs 5 and 6 will offer judges the necessary flexibility to decide which cases need to be weeded out because the claim or the defence is doomed to fail, and then go on to decide whether those cases which deserve to be heard on their merits ought to be adjudicated in the abbreviated, less rigorous process of an application, or should instead be reserved for the more traditional trial by action format.

[20]        This is precisely the same approach commended by Justice Karakatsanis in Hryniak where she urged judges to play a leading role in finding alternative measures which will produce adjudicated outcomes that are proportionate, timely, less costly, accessible and fair. 

Conclusion

[21]        For all of these reasons the appeal is dismissed with costs of $2,000 inclusive of disbursements payable by Blunden Construction Limited, and costs of $1,000 inclusive of disbursements payable by Fowler, Bault & Mitchell Limited, to the respondent William Fougere.

                                                                             Saunders, J.A.

Concurred in:

          MacDonald, C.J.N.S.

          Scanlan, J.A.