SUPREME COURT OF NOVA SCOTIA
Citation: Nova Scotia (Community Services) v. Hopkins, 2011 NSSC 382
Date: October 7, 2011
Docket: Amh. No. 352463
Registry: Amherst
Between:
The Department of Community Services
Applicant
v.
Tanya Hopkins
Respondent
Judge: The Honourable Justice Cindy A. Bourgeois
Heard: October 7, 2011
Written Decision: October 19, 2011
Counsel: Terry Potter for the Applicant
Claire McNeil for the Respondent
By the Court:
INTRODUCTION
[1] The Applicant Department of Community Services (the “Applicant”) has filed a Notice for Judicial Review in relation to a decision of the Assistance Appeal Board (the “Board”), specifically regarding benefits payable to the Respondent Tanya Hopkins (the “Respondent”).
[2] On October 7, 2011, the Court heard a motion brought by the Applicant pursuant to Rule 83.03 to amend the Notice of Judicial Review. At the conclusion of submissions, I advised the parties that the motion was granted, however, given time constraints, written reasons would follow. These are the Court's reasons.
BACKGROUND
[3] As noted above, a Notice of Judicial Review was filed on July 14, 2011. The Applicant was seeking to challenge a decision of the Board which found the Respondent entitled to equipment to grow medical marijuana as a "special need". The Applicant did not request a stay of the Board's decision in the Notice.
[4] The Respondent filed a Notice of Participation on August 12, 2011.
[5] On August 18, 2011, the matter was scheduled in Chambers, and adjourned to September 8, 2011 due to the Respondent recently retaining counsel, and that the record did not appear to be available.
[6] On September 8, 2011, the matter returned to Chambers for directions and the setting of dates in relation to the judicial review. At that time Counsel for the Applicant advised that it intended to make a motion to amend the Notice of Judicial Review, said amendment to indicate its intention to seek a stay of the Board decision under review.
[7] As noted above, the motion for amendment was heard October 7, 2011.
POSITION OF THE APPLICANT
[8] The Applicant wants to seek a stay of the Board decision, notwithstanding that the Notice of Judicial Review indicated "the Applicant will not make a motion for a stay of the enforcement of the decision under judicial review". It wishes to remove the word "not" from the Notice, thus permitting a motion for a stay.
[9] In support of its motion, the Applicant relies upon the affidavit of legal counsel, Mr. Potter. In summary, Mr. Potter, under oath, asserts that he did not include a request for a stay in the original Notice due to his understanding that the Respondent would, voluntarily, not be seeking enforcement of the Board decision pending outcome of the Judicial Review. Mr. Potter asserts that he based this understanding upon discussions he had with Mr. Sam Riley, the Respondent's spouse, who had spoken on her behalf in prior proceedings, and in particular, before the Board.
[10] The Applicant submits that the motion to amend is a reasonable one in light of the circumstances, and permitted by the Civil Procedure Rules and supported by the case authorities.
POSITION OF THE RESPONDENT
[11] The Respondent strenuously opposes the motion, and asserts that the amendment is inappropriate. She relies upon the affidavit of Mr. Riley in support of the view that there was no agreement between Mr. Riley on her behalf and Mr. Potter relating to the implementation of the Board's decision. The Respondent asserts at best, Mr. Potter is mistaken, or at worst, he is not being forthright. In this vein, the Respondent asserts that the Applicant has, both in its past dealings with her and in the present motion, been purposefully acting in bad faith. As such, the motion to amend should not be granted.
[12] Although not contained in her written brief, the Respondent asserted in her oral submissions that the amendment would cause her prejudice due to the further resulting delay in implementing the Board's decision.
THE LAW
[13] I have reviewed the authorities provided by both parties. There does not seem to be disagreement as to the test this Court should apply when considering a motion to amend. These are nicely summarized by Counsel for the Respondent at page 2 of her written submissions as follows:
The test for whether an amendment to the pleadings should be granted is settled in Nova Scotia and turns on whether there has been bad faith or serious prejudice that cannot be compensated by costs:
A review of the case law leads us to conclude that the amendment should have been granted unless it was shown to the Judge that the Applicant was acting in bad faith or that by allowing the amendment, the other party would suffer serious prejudice that could not be compensated by costs.
Consolidated Foods Corp. Of Canada v. Stacey, [1986] N.S.J. No. 356, at para.5.
In the criteria for "bad faith" has been further expanded upon by the Nova Scotia Supreme Court in Mitsui & Co. (Point Aconi) Ltd v. Jones Power Co. where the court indicated that bad faith may be found where an amendment is "motivated by an improper purpose such as delay or obstruction of the proceeding or to subvert the ends of justice".
Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co., [2001] N.S.J. No. 510, at para. 29.
The question of "bad faith" turns on the context and is discretionary. The Nova Scotia Court of Appeal in Global Petroleum Corp. v. Point Tupper Terminals Co. stated that "the question of bad faith is within the discretion of the Chambers judge".
Global Petroleum Corp. v. Point Tupper Terminals Co., [1998] N.S.J. No. 408, at para. 25.
[14] It is also well settled law that the merits of the proposed amendment is not a consideration which should be undertaken by a chambers judge faced with a motion to amend. See Consolidated Foods Corp. of Canada v. Stacey, supra. at paragraph 7.
[15] The major contest before the Court is whether bad faith exists on the part of the Applicant. If such a finding was made, in most instances, an amendment would not be appropriate. Although made in the context of a motion under Rule 83.04 for the amendment of pleadings to remove and subsequently add a party, MacDougall, J.'s comments in M5 Marketing Communications Inc. v. Ross 2011 NSSC 32, regarding findings of bad faith are relevant here. There, the Court writes:
[31] Counsel for the Corporate Defendants has raised the possibility of bad faith as the motivation behind this motion. The burden of establishing bad faith is on the party raising it. It is a serious allegation and there would have to be strong and compelling evidence in support of it. I am not satisfied that sufficient evidence has been offered to raise anything more than a mere suspicion. Certainly there is not enough to support a finding of bad faith.
DETERMINATION
[16] Rule 83.03 contemplates amendments to a Notice of Judicial Review. It provides:
83.03 A party to a proceeding other than an action may amend the notice by which the proceeding is started, or a notice of contest, participation, or contention, with the agreement of the parties affected by the amendment or with permission of a judge.
[17] Amendment to a Notice of Judicial Review is also specifically contemplated within Rule 7.10. Clearly, at the motion for directions, an amendment of the Notice of Judicial Review or Notice of Participation is something which can be considered ‑ Rule 7.10(e). In the present instance, the Applicant made the Court aware at the motion for directions, that it would be seeking an amendment, and what it would entail.
[18] As noted above, the parties are in agreement with the test to be applied by the Court in considering the motion for amendment. All of the authorities, other than M5 Marketing Communications, supra, were made under the previous Rules. I find that they are however, equally applicable under the current Civil Procedure Rules. As such, I turn my mind to whether the Respondent has established bad faith on the part of the Applicant, or whether the amendment would give rise to serious prejudice which could not be compensated by an award of costs.
The existence of bad faith
[19] The evidence presented by the Respondent consists of the affidavit of Mr. Riley who asserts that he did not make an agreement with the Applicant's counsel to delay the implementation of the Board's decision. The Respondent's written and oral submissions assert that it would have been unreasonable for several reasons for Mr. Potter to believe that any such agreement was in place. In effect, the Respondent is challenging the veracity of Mr. Potter's sworn evidence. Neither affiant were cross‑examined.
[20] Mr. Potter, under oath, asserts that he believed that an agreement was reached that the Respondent would not be seeking enforcement of the Board's decision. As such, a stay would not be required. Quite candidly, Mr. Potter indicated in his oral submissions that in future, better practice may be to include the request for a stay in the Notice, and simply not proceed should similar agreements be reached. Mr. Potter indicated to the Court that he did not act in bad faith, but genuinely believed that he had, rightly or wrongly, reached an agreement with Mr. Riley.
[21] I am satisfied that in the present case, Mr. Potter believed that he had reached an agreement with Mr. Riley. I recognize that Mr. Riley asserts that no such agreement was reached. Perhaps that is, in fact, the case. However, what stands is a reasonable explanation as to why Mr. Potter drafted the Notice as he did. He did not, at the time of drafting, think that a stay would be required. There is nothing before this Court which comes remotely close to establishing any form of bad faith on Mr. Potter's part.
[22] In addition to the failure of the Applicant to include the remedy of a stay in its initial Notice, the Respondent points to several other factors as indicia of bad faith. These include delays in having the matter placed before the Board, and an allegation that the present motion was motivated by the Applicant's wish to have new regulations, passed since the Board rendered its decision, apply on the Review. I am not satisfied that delays in previous proceedings point to bad faith on the part of the Applicant in the present motion to amend. Further allegations of bad faith are mere suspicions advanced by the Respondent without adequate evidentiary foundation.
The existence of serious prejudice
[23] The issue of the existence of prejudice arose only in the oral submissions of the Respondent. It was not addressed in her written brief. The Applicant asserted that it was not, accordingly, properly before the Court on the motion.
[24] The Respondent asserts that she needs to obtain the necessary equipment to grow her medical marijuana, as it provides her with pain relief and a significant improvement in the quality of her life. She asserts that any delay in implementing the Board's decision is of prejudice to her. Material before the Court suggests that notwithstanding the lack of equipment, the Applicant is able to obtain medical marijuana in the interim, although in lesser quantities and quality than she would like. I am not satisfied that the Respondent has met her burden of establishing a serious prejudice which cannot be compensated by costs.
CONCLUSION
[25] The amendment as sought by the Applicant is allowed.
J.