IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Dalziel v. Lloyd's Register North America, 2004 NSSC 243
Date: 20041124
Docket Number: S.H. 180477
Registry: Halifax
Between:
John Dalziel
Applicant
v.
Lloyd's Register North America Inc.
Respondent
Judge: The Honourable Justice Donald M. Hall
Heard: October 12, 2004, in Halifax, Nova Scotia
Counsel: Blair Mitchell, Esq., counsel for the applicant
James D. Youden, Esq., counsel for the respondent
By the Court:
[1] This is an application by the plaintiff for injunctive relief or alternatively a declaratory judgment. The specific terms of the relief sought are set out in the Notice of Application as follows:
1. enjoining the respondent and all persons acting on its behalf from influencing or seeking to influence, by threat or implication of civil proceeding as a consequence thereof, or in any unlawful manner, the testimony of the applicant or any other person, or the presentation of evidence by the applicant or any other person, or the advocacy of the Applicant's position in, or in any matter of legal process associated with, a complaint against the respondent under Part III, division XIV, s 240 of the Canada Labour Code, the hearing of which is scheduled to resume before adjudicator Eric Slone in hearings in Halifax, Nova Scotia on February 10, 2002, under hearing number HRDC File # YM 2707-5695;
2. Declaring unlawful any attempt by or on behalf of the respondent, to influence or seek to influence by threat or implication of civil proceeding as a consequence thereof, the testimony of the applicant or any other person, or the presentation of evidence by the applicant or in other person or the advocacy of the Applicant's position in, or any matter of legal process associated with, a complaint against the respondent under Part III, Division XIV, s. 240 of the Canada Labour Code, the hearing of which is scheduled to resume before adjudicator Eric Slone in Halifax, Nova Scotia on February 10, 2002, under hearing number HRDC File # YM 2707-5695, is unlawful.
[2] The issue to be decided is whether in the circumstances of this case such relief ought to be granted.
[3] The facts do not appear to be in dispute. The plaintiff is a professional engineer and naval architect. From 1997 to 2002 he was employed in his professional capacity with the defendant which it is understood provides, among other things, surveying services to Lloyds Register of Shipping, a classification society for the purpose of classifying ships.
[4] In the course of his employment the plaintiff observed what he perceived to be serious misconduct on the part of the defendant in the performance of its services. As a result he resigned from his position with the defendant. He filed a complaint with the Federal Minister of Labour under s. 240 of the Canada Labour Code, alleging that he had been constructively dismissed from his employment and claiming compensation for wrongful dismissal. The matter was referred to an adjudicator for hearing under the provisions of the Canada Labour Code. The hearing was delayed because of intervening court applications but is now scheduled to begin in the near future.
[5] What precipitated this application is the following paragraph in a letter from Mr. Youden, counsel for the defendant, to Mr. Mitchell, counsel for the plaintiff:
If it is your client's intention to attempt arguing a case of sweeping negligence across LRNA and its parent companies, whether quasi criminal or otherwise, (i.e. argue from the M.H. Baker III to a world wide problem), this is completely inappropriate in the context of a labour tribunal dealing with constructive dismissal and we will object vigorously to any attempt to make such an argument at the hearing on the matter. Beyond their inappropriateness, however, such allegations would clearly be considered seriously defamatory and could have the potential to seriously affect Lloyd's Register's business worldwide. While our client has no doubt whatsoever that such allegations could never be substantiated, it is LRNA's intention to take whatever legal steps are available to it to remedy any damage done.
[6] Mr. Mitchell claims that the threat of legal action for defamation would seriously inhibit the plaintiff and his witnesses in the presentation of their evidence as well as counsel in presentation of his submissions. Mr. Mitchell says that the witnesses and himself would have to think twice before putting forward certain evidence and argument. He maintains that any attempt to influence the witnesses and the presentation of the plaintiff's case in this matter would be unlawful and that the defendant ought to be enjoined from doing so or that such action be declared unlawful. Mr. Mitchell maintains that there is a serious issue to be tried, in particular, he contends that the action of the defendant would amount to an interference with the administration of justice.
[7] On the other hand, in his preliminary hearing brief, Mr. Youden submitted that the granting of such relief “. . . would prematurely interfere with LRNA's right to properly and fully defend its reputation and commercial interests, and to defend against the complaint." He further argues that the plaintiff is not entitled to the requested relief because there is no serious issue to be tried and the balance of inconvenience weighs heavily on the side of the defendant, since if the relief is granted the defendant would be thwarted in its ability to defend itself and its "hands are tied before the matter is heard".
[8] Counsel agree that the applicable legal principles are found in the decision of the Supreme Court of Canada in RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; [1994] 111 D.L.R. (4th) 385. At page 347 - 349 Sopinka and Corey, J.J., in delivering the decision of the court stated:
As indicated in Metropolitan Stores, ( [1987] 1 S.C.R. 110), the three-part American Cyanamid, ( [1975] A.C. 396), test should be applied to applications for interlocutory injunctions and as well for stays in both private law and Charter cases.
At the first stage, an applicant for interlocutory relief in a Charter case must demonstrate a serious question to be tried. Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits. The fact that an appellate court has granted leave in the main action is, of course, a relevant and weighty consideration, as is any judgment on the merits which has been rendered, although neither is necessarily conclusive of the matter. A motions court should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, or when the constitutionality of a challenged statute can be determined as a pure question of law. Instances of this sort will be exceedingly rare. Unless the case on the merits is frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test.
At the second stage the applicant must convince the court that it will suffer irreparable harm if the relief is not granted. 'Irreparable' refers to the nature of the harm rather than its magnitude.
The third branch of the test, requiring an assessment of the balance of inconvenience, will often determine the result in applications involving Charter rights. In addition to the damage each party alleges it will suffer, the interest of the public must be taken into account. The effect a decision on the application will have upon the public interest may be relied upon by either party.
[9] I must acknowledge that I, like Mr. Youden, am not absolutely clear as to what the issue is that concerns Mr. Mitchell. If he is concerned that while a witness is testifying, counsel for the defence might interject that the witness should be careful in what he is saying or he may face a defamation action in order to intimidate the witness, it would be for the adjudicator to deal with the propriety of the “caution”.
[10] It seems to me that such a caution would be analogous to reminding a witness of the law respecting perjury and the consequences of committing perjury. To my knowledge it is perfectly lawful and acceptable for counsel to caution a witness in this manner.
[11] It may also raise a question of whether the witness immunity rule applies to proceedings before a tribunal such as an adjudication under the Canada Labor Code. If the rule applies it seems to me that the question may be moot. As Mr. Mitchell pointed out, however, the mere threat of a legal action may be intimidating to a witness because he or she would be obliged to defend, even though the suit may ultimately fail. Nevertheless, in my opinion, it is not appropriate to grant such extraordinary relief as an injunction to enjoin a party to a legal proceeding from following a course of action that is otherwise lawful.
[12] The plaintiff asks ;the court to enjoin the defendant from influencing or seeking to influence the testimony of witnesses ;in any unlawful manner. In my view such a directive would be redundant as such conduct is prohibited, it being “unlawful”.
[13] What is involved here has to do with the admissibility of evidence and the conduct of the hearing. At this point the anticipated harm is only potential or speculative since it is not known what the witnesses will say on the witness stand or what evidence the adjudicator will permit to be presented at the hearing. If the defendant's counsel should put inappropriate questions to the witnesses or make statements threatening legal action in the event of a witness responding in a particular way, counsel for the plaintiff may object and the adjudicator would have to rule on the acceptability of the question and the propriety and acceptability of the comments by counsel. In other words it is a matter of evidence and the presentation of evidence which are matters exclusively within the province of the trial judge or, in this case, the adjudicator. In my view, this court should not, even if it may have a supervisory role, which I doubt, at this stage at least, interfere with or attempt to control in any way the presentation of the evidence and the conduct of the hearing before the adjudicator.
[14] In any event, in my opinion, these are issues to be dealt with and ruled upon by the adjudicator.
[15] Accordingly, I conclude that there is no serious issue to be tried insofar as this application is concerned and the application fails on that ground.
[16] As directed by the decision of the Supreme Court of Canada in RJR - MacDonald, (supra), it is necessary to go on and consider the second and third stages of the Metropolitan Stores, tests.
[17] As to irreparable harm that could be caused to the plaintiff, it must be acknowledged that there is a possibility that this could result if, because of intimidation of the plaintiff's witnesses, they failed to testify fully as to matters that would be beneficial to the plaintiff's case causing his claim to fail. If so, there would be no other way that the plaintiff could recover, the compensation that he may have been entitled to. That such would occur is sheer speculation and there is nothing to indicate that such is likely to occur. Thus, I am not convinced that the plaintiff is likely to suffer irreparable harm if the relief is not granted.
[18] As to the balance of inconvenience, it seems to me that the balance of inconvenience favours the defendant. I agree with the submission by counsel for the defendant that the defence would be extremely hampered in its ability to defend itself if limited in its defence as proposed by the plaintiff.
[19] I can see the concern of the plaintiff as to the possible influence on his witnesses, but all that is required of them is that they testify truthfully. If they do so they have nothing to fear from a defamation action. At this point it is merely speculation that the witness would be intimidated by the threat of potential legal action. The overriding consideration is the constraints that would be placed on the defence in the presentation of its defence.
[20] In any event, it is for the adjudicator to control the presentation of the evidence and the conduct of the proceeding before him. Insofar as the inconvenience to the defendant, theoretically at least, any damage to its reputation resulting in loss of business or other financial loss may be compensated for in damages through defamation actions. This may not be realistic, however, as the loss may be so extensive and wide-spread as to be beyond recovery from any potential defendants in defamation actions. In my view, the balance of inconvenience clearly lies with the defendant.
[21] Defendant's counsel also moved to have certain paragraphs of the plaintiff's affidavit struck. In view of the conclusion that I have reached as stated above, it is not necessary for me to rule on the acceptability of the various statements in the plaintiff's affidavit.
[22] The application is dismissed. I will hear the parties further with respect to costs if they wish.
Donald M. Hall, J.