Citation: Brodie v. Jentronics Ltd., 2009 NSSC 399
Date: 20091215
Docket: Hfx No. 319111
Registry: Halifax
Between:
Janice Brodie
Applicant
v.
Jentronics Limited
Respondent
DECISION
Judge: The Honourable Justice Gerald R. P. Moir
Heard: December 15, 2009, in Halifax
Written Decision: Oral decision transcribed, edited, and signed on December 23, 2009
Counsel: Michael A. Maddalena, for the applicant
Ronald Pizzo, for the respondent
Moir, J. (Orally):
[1] Ms. Brodie started an application under Rule 5 to recover damages for wrongful dismissal, vacation pay, and overtime. Jentronics applies under Rule 6 to convert the proceeding to an action.
[2] The Rules that came into effect in 1972 provided for a proceeding commenced by originating notice (application) for cases involving a question of law, the interpretation of a lease, no substantial dispute of fact, or a statute that permitted an application. Many decisions of this court and the Nova Scotia Court of Appeal emphasized the limits on cases that could be resolved by application.
[3] The Rules that came into force last January provide for a different kind of application than the one under the 1972 Rules.
· Rule 5 - Application is not subject to the old restrictions. On the contrary, Rule 5.01(4) provides that the application in court, which contrasts with an application in chambers, “is available, in appropriate circumstances, as a flexible and speedy alternative to an action”.
· Rules 5.07(5) and 5.08(2), by their incorporation of Rules 5.03(2)(b) and 5.04(2)(c), provide for concise statements of grounds. These grounds are treated elsewhere in the Rules as pleadings, subject to the same requirements as pleadings in an action. The old form of application was such that the respondent never got a statement of grounds, or other pleading.
· Rule 5.09 provides for a significant degree of judicial management through a motion for directions under Rule 5.09(2) and further directions under 5.09(3). The judge may control the disclosure of documents and electronic information under Rules 15.06 and 16.14.
[4] For these reasons, decisions under the 1972 Rules about the use of applications as opposed to actions must be approached with caution when an application under Rule 6 is proposed.
[5] Rule 6 - Choosing Between Action and Application provides general guidance for determining whether an application should be converted to an action, or vice versa. In either case, the proponent of the action bears the onus: Rule 6.02(2). This statement of the onus shows a strong policy in favour of the use of applications.
[6] Rule 6.02(6) makes it clear that proportionality is a factor in choosing between the two kinds of proceedings. When read with Rule 5.01(4), it becomes clear that the Rules invite the bar and the bench to make use of the application route to achieve lower cost and greater speed.
[7] The application will normally be heard on affidavits and cross-examination. Mr. Pizzo says, for the respondent, that the cost of preparing affidavits is likely to be greater than the cost of witness preparation and direct testimony. He also suggests that the action process is more likely to focus the range of evidence and the parties will bear a greater cost in providing unnecessary evidence in an application of this kind. Those propositions are not established. The bench and the bar should give the new proceeding an opportunity to prove itself before we draw such broad conclusions.
[8] Mr. Pizzo points out that presentation of direct evidence through affidavit deprives the judge of the opportunity for assessing witnesses during direct examination and permits counsel to lead the witness. There will be significant issues of credibility in this case. I accept Mr. Pizzo’s points, but I find that credibility can adequately be assessed by considering the whole of the evidence, especially evidence given in cross-examination; see, Rule 6.02(5)(d).
[9] The critical factors in this case are those set out in Rule 6.02(5)(a), (b), and (c):
(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;
[10] I believe the parties have already identified their important witnesses in the notice of application and the notice of contest. I accept that there may be further witnesses to be identified but it seems to me that the important witnesses are now known.
[11] The respondent alleges that the applicant’s dereliction in performance put its record keeping in disorder and caused it much financial loss. The work of restoring the accounting records is ongoing and the extent of losses is not yet quantified. I question why the completion of either is necessary before trial or hearing, but if it is necessary, the judge giving directions can build in flexibility to accommodate those efforts. In my view, the parties can be ready in months rather than years and predictions can reasonably be made of the length and content of the hearing.
[12] Seldom in recent years have we seen a wrongful dismissal claim of the potential size of this one make it to trial. Proportionality is a serious concern. I accept Mr. Pizzo’s point that the application must be compared with the new simplified procedures for an action under $100,000. Still, I can see where this proceeding can be quicker and less expensive than an action under $100,000.
[13] The burden of establishing that the trial route is preferable has not been met; therefore, I will dismiss the motion.
J.