IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Cheticamp Packers (1991) Ltd. v. Canadian Food
Inspection Agency 2005 NSSC 280
Date: 20051014
Docket: SH 210146
Registry: Halifax
Between:
Cheticamp Packers (1991) Limited
Applicant
v.
The Canadian Food Inspection Agency
Respondent
Judge: The Honourable Justice A. David MacAdam
Heard: Heard in Chambers on August 31, 2005, in Halifax, Nova Scotia
Written Decision: October 14, 2005
Counsel: C. Gavin Giles, Q.C. and Harvey Morrison, Q.C. for the Applicant
James Gunvaldsen-Klaassen for the Respondent
By the Court:
[1] The applicant, Cheticamp Packers (1991) Limited, (herein “Cheticamp Packers”), seeks an Order compelling the discovery of Wilson Eavis, (herein “Eavis”) pursuant to Civil Procedure Rule 18.05(1). The respondent, the Canadian Food Inspection Agency, (herein “Inspection Agency”) resists the application on the basis the applicant has not demonstrated Eavis has any relevant evidence concerning the matters at issue between the parties and secondly, as a former Crown employee , he is not subject to discovery absent designation by the respondent pursuant to s. 7 of the Crown Liability and Proceedings (Provincial Court) Regulations, (herein “the Regulations”), made pursuant to s. 27 of the Crown Liability and Proceedings Act. R.S.C. 1985, c.C-50, S.O.R./91-604 (herein “the Act”).
Background
[2] The applicant operates a crab processing facility in Cheticamp, Nova Scotia, (herein”the facility”). On June 9, 2003 Inspector Jeanelle Boudreau, (herein “Boudreau”), of the Inspection Agency attended at the applicants facility to obtain samples of crab, which were then examined and determined to contain salmonella. Eavis was employed as an inspector with the Inspection Agency, although not involved in the crab sampling conducted by Boudreau. Eavis was not present at the time Boudreau selected the crab samples for testing but attended at the applicants facility with Boudreau and Raymond Leger, also with the Inspection Agency but based in Moncton, New Brunswick, during a quality management and compliance verification visit. This visit occurred three days later on June 12th.
[3] Following determination by the Inspection Agency that the selected crab had tested for salmonella, the applicant arranged to have its own test conducted. The applicant’s testing indicated a contrary conclusion. A number of discussions were held and the majority of the plaintiff’s production was released from detention. However, the production from which the samples were taken was not released.
[4] As part of the documentary production on the application for the discovery of Eavis, the respondent produced an e-mail authored by Eavis and addressed to James A. Whiting, apparently one of his supervisors at the Inspection Agency. The e-mail, dated October 20, 2003, in part reads:
Solely for the purpose of understanding the overall picture of issues that relate to our routine duties such as sampling and testing, I suggest the following.
Although the case and issues surrounding the recent product testing at Cheticamp Packers may not yet be finalized, I would encourage that the field staff be made aware of the complexities which have unfolded to date. My reasoning is to discuss and if necessary further formulate policies and procedures which can prevent any liabilities on the part concerning our field work as possible. If we as a field unit, an Agency or a system have errored, (sic) or can be perceived as errored, (sic) let’s ensure that we all understand the concerns and requirements.
I realize that if need be, changing policies mid-stream might reflect poorly on the Agency at this time, perhaps even an overview of the issues can enlighten us all as to the need for professionalism and consistency, two items that from discussion I/we can certainly advantage from. To err is human, but let’s improve in the ways that we can.
Let’s take hindsight and turn it into foresight. Let’s help the Agency be even more able to fulfill its’(sic) mandate.
[5] The applicant alleges, amongst other things, the sampling and analysis of the snow crab obtained on June 9th “...was conducted negligently, in breach of applicable scientific methods and protocols and in contravention of the Defendant’s own policies and procedures.”
[6] It appears Eavis is no longer an employee of the Inspection Agency, having been dismissed from his employment. The applicant seeks to discover him in the context of the proceeding it has brought against the Inspection Agency.
Statutory and Regulatory Provisions
[7] The application is pursuant to Civil Procedure Rule 18.05(1) of the Civil Procedure Rules of Nova Scotia. The respondent relies on s. 7 of the Regulations made pursuant to s. 27 of the Act, which reads as follows:
27. Except as otherwise provided by this Act or the Regulations, the rules of practice and procedure of the Court in which proceedings are taken apply in those proceedings.
...
7. Subject to Sections 37 to 39 of the Canada Evidence Act, where, under the Provincial rules, there is a provision under which, if an action were an action between a corporation (other than an agency of the Crown) and another person, an officer or servant of the corporation could be examined for discovery, such officer or servant of the Crown or an agency of the Crown, as the case may be, as may be designated for the purpose by the Deputy Attorney General or after such designation by order of the Court, may be examined for discovery during an action subject to the same conditions and with the same effect as would apply to the examination for discovery of the officer or servant of a corporation. [underlining and double underlining added]
Issues
[8] At issue is whether Eavis should be required to submit to discovery at the insistence of the applicant.
Argument
[9] The applicant acknowledges the provisions of Civil Procedure Rule 18 are subject to the provisions of Regulation 7. The respondent maintains Eavis has no relevant information to provide in respect to the issues, as between the applicant and the respondent, and, alternatively, that pursuant to Regulation 7 a person has been designated and has been examined by the applicant and no further designation should be made in the present circumstance. The respondent says the designated person put forward, William Moore (herein “Moore”) was examined by the applicant for approximately eight days during which he was asked approximately “forty-eight hundred questions, and gave about two hundred and fifty undertakings”. The applicant refers to excerpts from the discovery of Moore including references by Moore to Eavis and his attendance “at the facility”. Moore says Eavis had nothing to do with the earlier attendance by Boudreau, her selection of the crab to be tested, nor in the testing process that followed, and as such has nothing relevant to add. He, therefore, should not be subjected to a discovery. The applicant, on the other hand, says the issues here involve not only the events of June 9th but as well the quality inspection carried out a few days later as well as the testing and procedures followed by the Inspection Agency. The applicant refers specifically to the e-mail directed by Eavis to Boudreau’s supervisor. Moore, in respect to the e-mail, on his discovery testified:
... And, and frankly put, Mr. Eavis was not part of the decision-making, nor was he part of the person making the, preparing letters or anything to go back to the company. And apart from the small bit of information he could get on the periphery, he basically didn’t know what was going on.
[10] And later:
A. As far as I’m concerned, he wrote that e-mail trying to get some information as to what was taking place, was one of his reasons.
Q. And do you have any idea why he’d be interested in finding out what was taking place?
A. No, none other than just sticking i-, sticking his nose in somewhere where it didn’t necessarily have to be.
A. But what I can say, when I read this e-mail, I was not receptive to it from the perspective of if there was any part of this issue that was his business, it would have been his business...
Q. Mmm hmm.
A. ... and I frankly told him in the e-mail that he didn’t know what he was talking about.
[11] In reference to the sampling carried out by Boudreau on June 9th and its relationship to the compliance verification review visit by Legere, Boudreau and Eavis a few days later, Moore made the following observations:
Q. Okay, but he was Ms. Boudreau’s direct supervisor with respect to the CV out of which samples were taken, which ultimately proved to be positive for salmonella. So he was kind of on the front end of the whole thing?
A. There is some debate as to whether or not the - and it’s really irrevelant - the samples taken on June 9th by Jeanelle ...
Q. Mmm hmm.
A. ... were part of the CV. According to Jeanelle, her records are showing that it was, she was conducting that sampling activity as part of routine quarterly sampling. However, any data which you can produce from a company can be used for the purposes of compliance verification review.
[12] In preparing for the discovery Moore, although he spoke to a number of persons that were involved, did not speak to Eavis about his e-mail or what he knew or did not know concerning the collection of the crab and the subsequent testing. In his view, as indicated, Eavis had no relevant information concerning the matters at issue in this proceeding.
[13] The applicant references the decision of the Nova Scotia Court of Appeal in Upham v. You (1986), 73 N.S.R.(2d) 73; 176 A.P.R. 73 (C.A.). Matthews, J.A. at pp. 79 - 80, observes, in respect to discovery in Nova Scotia:
The Supreme Court of this province has consistently held that the Rules relating to discovery of persons and the production of documents should be interpreted liberally to give effect to full disclosure. See for example, Imperial Oil Ltd. v. Nova Scotia Light & Power Co. Ltd. (1973), 41 D.L.R.(3d) 594; Imperial Oil Ltd. v. Nova Scotia Light & Power Co. Ltd. (1974), 10 N.S.R.(2d) 693; 2 A.P.R. 693 and on appeal by p. 679; Swinamer v. Canadian General Insurance Company (supra); McCarthy v. Board of Governors of Acadia University (1976), 22 N.S.R. (2d) 381; 31 A.P.R. 381; and Schwartz v. Royal Insurance Company (1978), 26 N.S.R. (2d) 223; 40 A.P.R. 223.
Jones, J.A. said in Central Mortgage & Housing Corporation v. Foundation Company of Canada Limited (1982), 54, N.S.R.(2d) 43; 112 A.P.R. 43, at p. 49:
Coupled with the requirements under the Rules for complete disclosure and inspection of documents, interrogatories, admissions, notice of experts’ reports, and pre-trial conferences, it is apparent that our Rules are designed to ensure the fullest possible disclosure of the facts and issues before trial and thereby avoid the element of surprise. Whereas the former Rules prevented pre-trial disclosure of evidence I think one can now say the opposite is true. The object is to avoid surpise, simplify the issues and, hopefully, discourage the need for continued litigation ...
And at p. 53:
The practice in this province has been to interpret the Rules liberally. See the decision of Cowan, C.J.T.D. in Davies v. Harrington (1980), 39 N.S.R.(2d) 199; 71 A.P.R. 199.
[14] Also referenced by council is the decision of Justice Davison in Eastern Canadian Gas Venture Ltd. v. Cape Breton Development Corp (1994), 137 N.S.R. (2d) 123 at para 17:
18 Civil Procedure Rule 20.06 (1) provides for production of any document “relating to any matter in question in a proceeding”. These words are broad. A chambers judge is at a disadvantage in attempting to ascertain relevance on a preliminary basis. Mr. Justice Griffiths in Toronto Board of Education Staff Credit Union Ltd. v. Skinner et al. (1984), 46 C.P.C. 292 (Ont. H.C.) applied a very wide and broad test for relevance when he commented at p.296:
The court cannot at this stage lay down precise rules as to what is or is not relevant to the issues pleaded. If, however, the documents have a semblance of relevancy, they should be declared producible, leaving it to the trial judge or the judge hearing the final application to make the determination of relevancy at that time.
[15] Having in mind the distinction between “relevance” in the context of discovery and “relevance” at trial, it is clear Eavis may have relevant information for purposes of discovery. I am satisfied the objection on the basis of “relevance” is without merit, at least at the pre-trial discovery stage of this proceeding.
[16] The applicant acknowledged Civil Procedure Rule 18 is subject to the provisions of Regulation 7. Counsel also concedes that under the common law, the Crown, and its employees were immune from civil discovery proceedings. Respondent counsel acknowledged that the provisions of Regulation 7 by which the Crown designates an officer or servant to be available for discovery extends to persons who have retired as Crown employees. Council asserts, however, this restriction against discovery does not extend to a person who has been terminated by the Crown, even in the circumstance where the information sought to be obtained related to events and incidents that occurred while the person was a Crown employee. Without citing any authority, council seeks to draw a distinction between Crown employees who retire in the normal course and those who are terminated.
[17] The suggestion by counsel that Eavis is in a different category since he is not capable of being designated as the respondent’s discovery witness, in view of the fact he is no longer an employee of the respondent, is not compelling. Persons who retire are equally not capable of being compelled and yet this circumstance is not seen as a basis for excluding them from the common law immunity against discovery, subject to its modification by Regulation 7.
[18] A further issue in respect to the selection of the designated discovery witness relates to the extent a court may or should intervene by either selecting another discovery witnesses or directing that additional witness be designated by the Crown. In this regard, both counsel have referenced the decision of Justice Tidman in Maplehurst Properties Ltd. v. Canada (Attorney General), 1997 Carswell NS 145. The plaintiff, unsatisfied with answers provided by the Crown witness at the discovery, sought an Order compelling another Crown witness to be discovered. In dismissing the application, Justice Tidman noted the Crown has historically enjoyed an immunity from both civil suit and discovery and only recently had legislation been enacted permitting the bringing of civil action and permitting some form of discovery. Justice Tidman after commenting Regulation 7 could have been drafted in clearer terms, at para 16 made the following observations:
... After a great deal of deliberation, I come to the conclusion that the provisions of Regulation 7 apply to discovery examination in all jurisdictions encompassed by the Act including Nova Scotia. I do so mainly on the basis of the clear meaning of the operative words in Regulation 7. Regulation 7 clearly states that in all jurisdictions where examination of persons on behalf of corporations is provided for, the provisions set out in Regulation 7 apply. The examination of witnesses on behalf of corporations is provided for by Civil Procedure Rule 18.01 of the Nova Scotia Rules which states than any person may be examined on discovery. Rule 18.14 (1) (b) makes clear that a person discovered may represent a corporation. Therefore, federal Regulation 7 applies, restricting discovery of Crown witnesses to the Crown officer of servant designated by the Deputy Attorney General. In this case, Mr. Faubert. To hold otherwise would lead to the conclusion that the federal Crown intended to give to those parties who chose to bring action against it in Nova Scotia a juridical advantage over those who chose another forum. The advantage being that the opposing party could choose whomever it wished to bind the Crown upon discovery examination.
[19] At para 20, he added:
... One is led to conclude that the intention of Parliament was exactly as stated. That is, in those provisional jurisdictions which permit discovery of a corporate party’s officer or servant, the federal Deputy Attorney General may designate the Crown’s discovery witness. Nova Scotia permits the discovery of a corporate party’s officer or servant, therefore, the federal Deputy Attorney General, in an action where the federal Crown is a party, may designate the Crown’s discovery witness. In this case, the person designated by the Deputy Attorney General was Mr. Faubert. Thus, the plaintiff is not entitled to discover additional Crown representatives.
[20] On the other hand Justice Moir, in Bryson v. Canada (Attorney General) (1997), Carswell NS 502, interpreting Civil Procedure Rule 18 and Regulation 7 concluded a person suing the federal government in Nova Scotia is entitled to discover any Crown employee in possession of relevant information, that is not privileged, and that the procedural right to discover more than one Crown employee was subject to the Courts power to control any abuse. Justice Moir found the Deputy Attorney General had the right to designate, in the first instance, which Crown employee was to be discovered . However, the Court had the power to designate other or additional Crown employees be made available. As noted by the respondent these observations by Justice Moir were the subject of an appeal to the Nova Scotia Court of Appeal where Chief Justice Clarke, on behalf of the Court, at Bryson v. Canada (Attorney General), [1998] N.S.J. No. 143, concluded the comments by Justice Moir were “obiter dicta” rather than any formal decision. Also in this regard, in Office Pavillion Interior Resources Ltd. v. Force Construction Ltd., [1999] N.S.J. No. 516. Kennedy J., as he then was, in regard to the decisions of Justice Moir in Bryson and Justice Tidman in Maplehurst made the following observation:
In this instance I am impressed with the reasoning of Justice Tidman. I think he’s right on in relation to the proper interpretation of the federal act and how it should apply to Nova Scotia despite our unique discovery procedure. I am satisfied that his reasoning is solid and, though I obviously have no way of knowing, I would at least suggest that had Justice Moir had the benefit of the reasoning of Justice Tidman at the time that he determined or at least gave obiter in the Bryson matter that he might have stated his situation otherwise.
[21] The applicant also raises the issue of Eavis status as a former, rather than a present, employee and, therefore, a person who could not be designated by the Deputy Attorney General, as the Crowns’ designated representative.
[22] In Maplehurst, supra, Justice Tidman commented:
On first blush, it would appear highly unfair to restrict a party in discovering the Crown while on its part the Crown have unlimited scope in discovering the other party. However, there is an obligation on the Crown’s designated discovery witness to provide all of the sought after information. The witness cannot simply plead ignorance of the information sought and refuse to answer. The witness must seek to obtain the information sought by the adverse party and either later provide the information or submit to further examination as has been the case here where Mr. Faubert has been examined and has provided additional information. Federal Regulation 7 states that the Crown’s discovery evidence has the same effect as discovery evidence of a servant or officer of a corporation. By virtue of Nova Scotia Civil Procedure Rule 18.14 (a) applicable to corporate parties one can conclude that the discovery evidence of the designated Crown witness may be used for any purpose by the plaintiff. In other words, the evidence is binding upon the Crown.
[23] In Baylis Estate v. Attorney-General of Canada, [2000] O.J. No. 2531, the witness offered by the Crown had no first hand knowledge of the report in question. The plaintiff found the procedure, whereby the witness undertook to obtain the information and, to respond in due course, to be cumbersome. At the time of the motion before the Master, the person who had authored the report was no longer an employee, although he subsequently returned to Government Service. The plaintiff was dissatisfied with the responses offered by the designated person and requested discovery of the person who had authored the report. The Master accepted the argument and ordered the author to be examined as a representative of the Crown. The Master made the observation that it was “well nigh impossible for the plaintiffs to have a full and fruitful oral discovery ...”. Even though at the time, as noted, the individual was not an employee, the Master determined he should be treated as an employee with his answers binding the Crown. On appeal to the Ontario Superior Court, Justice Swinton, at paras 13 and 14, made the following comments:
The Master adopted the plaintiffs’ argument that it would be quicker and more expedient if the plaintiffs could examine Mr. Glen directly, rather than through answers to undertakings. However, that has not been the test in cases that have considered whether a second representative should be examined. Rather, the question is whether the first representative has informed himself or is able to be informed on the matters in dispute, so that the plaintiffs may have an effective discovery. As I have said earlier, the Master stated early in his reasons that Mr. Glen was assisting Mr. Wilson in responding to undertakings, and the Master never made a determination that Mr. Wilson could not adequately inform himself of the matters in dispute. Moreover, he ordered that the undertakings related to Mr. Glen be fulfilled, which must indicate that he believed Mr. Wilson could inform himself on matters within the knowledge of Mr. Glen.
In this case, the Master erred in principle in ordering the examination of Mr. Glen as a second representative of the Crown. ...
[24] Clearly, in the present circumstance, there is the distinct possibility Eavis will not provide to the Crown responses to the questions raised by the applicant about the e-mail sent by Eavis, as well as to his knowledge and participation in the events that are the subject matter of the lawsuit.
[25] The Crown observes, in its hearing submission, that the applicant has not requested the Court designate an additional Crown witness for discovery nor asked that Eavis be the designated person. Crown acknowledges that in certain “rare circumstances” Courts have asserted jurisdiction to review “... the efficacy of a designation or a witness’ ability to answer questions”. Council refers to the decision of Justice Edwards in Hubrisca Enterprises Ltd. v. Canada (Attorney General), [1998] B.C.J. No. 122 where at para 19 he concluded there was a two-step process for designating an additional Crown witness pursuant to Rule 456 of the Federal Court Rules. The first step, as interpreted by Justice Edwards, is that, unless the applicant can otherwise demonstrate the designated Crown deponent is not informed or is incapable of being informed, the examining party must proceed to examine the designated deponent. Then, if following examination, the Crown designated deponent proves uniformed or incapable of being informed, the examining party may then apply to the Court for a re-designation. Then, at para 21, he concludes:
In conclusion, I interpret s. 7 of the Regulations to require a two-step process with the Crown entitled to designate the person to be examined for discovery and only if that person proves demonstably (sic) unsatisfactory can the court order that some other person be examined. In the case at bar the plaintiff must accept the nominee of the Crown and if that person is not informed at or during the examination, resort may be had to s. 7 of the Regulations.
[26] In Border Enterprises Ltd. v. Beazer East Inc., [2003] Carswell BC 297 Justice Tysoe in acknowledging he was bound by the decision in Hubrisca, supra, indicated the applicant had not demonstrated the designated witness was “incapable of adequately informing himself for the purpose of the examination for discovery”. Justice Tysoe continued “... it has not been shown that he does not have the requisite knowledge and would not be able to properly inform himself for the purpose of the examination for discovery”. He, however, left the door open for a re-application in the event the designated witness proved to be unsatisfactory.
[27] Also noted by council for the respondent are the “special circumstances” required before a Court will allow a second party witness to be examined even in circumstances not involving the Crown. Council references the decision of the Ontario Court of Justice (General Division) in Scintilore Explorations Ltd. v. Larche, [1995] O.J. No. 719 where, at paras 50 and 51, Justice Campbell observed:
In the ordinary case only one person should be examined as a party representative and it is rare to order a second examination under rule 31.03(3). The mischief of examining multiple representatives is obvious and the examining party, the absence of special circumstances, should ordinarily be bound by its first choice. As Mr. Jack points out, the test for getting an examination of a second representative is a very strict one.
It is not enough that the evidence is important to the moving parties, who must demonstrate that to refuse the second examination is to deprive them of a meaningful discovery.
[28] Also, as noted in the reasons of Justice Tidman in Maplehurst, supra, at para 17, the witness designated by the Crown is required to inform themself concerning the sought for information and is not permitted to simply plead ignorance. Moore testified Eavis had no relevant information to provide and, indeed, that may turn out to be the circumstance.
[29] Having decided that the degree of relevance required for an examination pursuant to Civil Procedure Rule 18.05 has been met and recognizing the obligation of the designated Crown witness to inform themselves concerning the events that are the subject of discovery, I am satisfied there remains the possibility of a further application in the event the designated witness, Moore, fails to inform himself whether by virtue of his refusal to inquire of the appropriate person or that person’s refusal to provide the necessary responses. In such an event, then the authorities dealing with the rare circumstance under which a Court may designate an additional Crown witness may become relevant. However, as noted in Baylis, it is not to be presumed the person possessing the information will not respond appropriately regardless of the fact they are not compellable by the Crown, in that they are no longer Crown employees, and whether having ceased to be employees as the result of their voluntary retirement or having been terminated. As noted by Justice Swinton, the requirement is for the designated person to make the inquiry and to report back. Whether then there will be the “special circumstances” that would warrant a further designation by the grant of discovery of a non party is a matter to be considered only in such an eventuality.
[30] The Crown shall make its designated discovery witness, Moore, available for further discovery by the applicant relating to the e-mail sent by Eavis and his knowledge, if any, of the events that are the subject of this proceeding. He is, required to inform himself by contacting Eavis. In the event, Moore is unable to inform himself including because Eavis is unresponsive, the applicant may then apply to determine whether the necessary special or rare circumstances exist here that would warrant the court directing the discovery of Eavis, either as a second designated Crown witness or simply as a non-party witness. Whether the applicant would be successful on such an application, is not before this court. No comment is made, nor intended to be made, on the merits, if any, in the event of such an application.
MacAdam, J.