Citation: Coates v. Capital District Health Authority, 2012 NSSC 283
Date: 20120724
Docket: Hfx No. 314177
Registry: Halifax
Between:
Rosanne Coates
Applicant
and
Capital District Health Authority
Respondent
and
Dr. Stephen Sheehan and Dr. Anil Rickhi
Third Party Respondents
Judge: The Honourable Justice Patrick J. Murray
Heard: February 29, 2012, in Halifax, Nova Scotia
Final Written
Submissions: March 15, 2012
Written Decision: July 24, 2012
Counsel: Rosanne Coates, self-represented Applicant
Carrie Ricker for the Respondent
Colin Clarke for the Third Party(s)
By the Court:
[1] The Applicant, Rosanne Coates, filed a motion seeking disclosure, pursuant to Rule 85, of the Nova Scotia Civil Procedure Rules. In the motion she seeks an Order, to be granted access to two audio recordings, one an audio tape cassette and the second a digital recorder. She also seeks disclosure and access to certain investigation materials, (conducted by Mr. Michael Dunphy) completed by the Capital District Health Authority (CDHA) in the investigation of a harassment complaint involving Ms. Coates and other parties. (Coates v Capital District Health Authority, 2012 NSCA 4).
[2] The investigation materials are extensive consisting of six (6) volumes. There has been some information redacted from the materials as a result of a previous court application by the Applicant. These redactions have been described as few and minor.
[3] In regard to the audio recordings, one is an audio cassette owned by the Applicant herself and the second is a digital voice recorder, owned by the Third Party, Dr. Anil Rickhi. These have been described by Ms. Coates as being approximately 30 to 45 minutes ( or less) , in combined hearing time.
[4] It must be stated at the outset that the disclosure which Ms. Coates seeks, has previously been the subject of a Freedom of Information Act and Protection of Privacy Act of Nova Scotia SNS 1993, c.5 ( the “Act”), appeal (commonly referred to as a FOIPOP application) made by her and heard by Justice Heather Robertson. That particular application involved a comprehensive process conducted by the Court. The court determined in that process, the extent of the access to which Ms. Coates was entitled. Notably, the access granted was from the same files/materials which she now seeks access to, at this time.
[5] The Court’s previous review was careful and detailed. The following is a summary of the steps taken by the Court in respect of Ms. Coates previous FOIPOP appeal, as summarized by Justice Robertson:
“12 The Court determined that these materials ( Note: the Dunphy materials) were in fact the property of the CDHA and would have been returned to the CDHA, in the ordinary course as Mr. Michael Dunphy was the hired investigator of the CDHA.
13 The Court asked Ms. Ricker's assistance in identifying the duplicate materials and in highlighting previously redacted duplicate materials, already delivered to Ms. Coates. As well, the Court sought identification of some handwritten notes, also duplicated in the materials.
14 In the process of this subsequent review by CDHA, certain additional materials came to light identified as package #1 (immediately sent to the appellant in its entirety) and package #2, from which a few pages were redacted on the basis of protected third party information, solicitor‑client privilege or irrelevance. This package was then reviewed by the Court as to the appropriateness of the redactions. Package #2 (redacted) was then disclosed to the appellant.
15 Ms. Coates then requested that the original of the tapes, used for the transcription of conversations held between she and Dr. Rickhi and disclosed in this process be held by the Court, as she believed these tapes may have been altered.
16 As well, she requested that all of the investigator Michael Dunphy's materials be similarly held by the Court, for future review and not be returned to the CDHA.
17 These materials were thus sealed and filed with the Court.
18 The Court also received various correspondence from the appellant during the course of these proceedings. That correspondence and the Court's reply remain in the court file.
19 Lastly, at the conclusion of this hearing on March 9, 2010, the Court reviewed all of the volumes of the material before it with Ms. Ricker of CDHA for the single purpose of ensuring that all documents redacted by CDHA and reviewed by the Court had been actually delivered to Ms. Coates, the appellant, and that the materials Ms. Coates requested the Court to seal and hold (the Dunphy materials) were in the possession of the Court and did not remain with the CDHA.
20 The Court explained this last procedure to Mr. O'Neill, then solicitor for Ms. Coates.
21 The Court rendered its decision dismissing the appellant's application.”
[6] It should be noted, that Ms. Coates has received transcripts of the audio recordings, as well as the written investigation materials of Mr. Dunphy ( as noted in para. 19 of the court’s decision), less the redactions. Further it should be noted that the earlier decision was appealed (by the Applicant) to the Nova Scotia Court of Appeal. The Appeal Court dismissed the appeal and affirmed the decision of the trial court, that of Robertson, J. In doing so the Court of Appeal stated that proper procedures were followed in the Freedom of Information Act, Application (which in itself is an appeal), stating at paragraphs 27 and 30 as follows:
“27 I see no error in principle or injustice in how Justice Robertson conducted the appeal. The powers of the Supreme Court on an appeal are found in s. 42 of the Act.
30 The procedure utilized provided assistance and clarity to the court in being able to efficiently review the material in issue and make a timely decision. I see no prejudice whatsoever to the appellant. Her complaint is, with all due respect to her, without merit.”
[7] In light of the foregoing findings, I pause to ask, what is it that the Applicant is seeking that she has not already received, through the previous applications and ruled upon by the decisions at both the trial and appeal levels? The simple answer can only be the information that was “redacted” from the original materials of Mr. Dunphy, as that is all that she did not receive. She received full disclosure, without redactions to the audio recordings.
[8] The following is what the trial court stated about the redactions:
“49 I appreciated that neither the appellant nor her counsel has access to the redacted pages. I can say, as I have earlier today, that none of the redacted materials are heavily significant, but simply are redactions properly made and identified as a necessity by CDHA pursuant to the statutory requirements either privacy interest or solicitor‑client privilege.
53 In the final result, the appellant's appeal against CDHA is dismissed. I believe the exercise was a worthy one and resulted in the disclosure of all the available material held by CDHA and to which the appellant was entitled. All of the redactions made by the CDHA in these proceedings were correctly made pursuant to the requirements of the Act.”
[9] In turn, the following is what the Appeal Court stated in terms of the redactions:
“18 During the hearing of March 9, 2010 Justice Robertson observed how few redactions CDHA had made to the documents that had been disclosed to the appellant. There were six bound volumes. Volume I, IV, V, and VI had been completely disclosed. In Volume II there were three pages that had been redacted, and in Volume III fewer than six. The appellant made detailed submissions about the legitimacy of the claimed redactions based on the criteria mandated by the FOIPOP Act. The material that had been redacted was solicitor client communications and third party personal information.
43 The appellant refers to paragraph 38 of Justice Robertson's decision where she said:
[38] I agree with the CDHA that the materials are fraught with highly personal information about both the appellant and third parties. Its disclosure in certain circumstances could lead to an unreasonable invasion of third party personal privacy and in certain circumstances breach of solicitor‑client privilege.
46 It is also important to emphasize, in light of the concern by the appellant, the judge stressed that the redactions she approved of were not really significant.
[10] It should be noted that the Applicant made an application previous to the application ruled upon in March of 2010. From here, I think the obvious question is why should this Court do anything more at this time? In other words, what would be the authority of this Court to issue a new decision, when the matter has already been ruled upon, given the principles of res judicata.
[11] The Applicant, in the course of her written submission and oral argument submits a number of arguments for further disclosure at this time. The following is my summary of the submissions advanced by Ms. Coates:
(i) That she did not receive all of her personal information;
(ii) That there has been tape recording mischief;
(iii) That disclosure of the audio recordings without all of the investigation materials is not full disclosure;
(iv) That the Court was previously prepared to disclose or release all materials until Ms. Coates counsel “preempted” same.
(v) That Mr. Dunphy said she was entitled to all information.
(vi) That the Court previously indicated that the sealed materials would be held for future consideration. This she says is a future review.
[12] The Appellant argues the allegation of tape recording mischief is sufficient to warrant full disclosure of her personal information and the materials in their entirety. With all due respect to Ms. Coates I do not agree, for the following reasons.
[13] Firstly, I have reviewed and considered her affidavit filed in support of this motion. Having done so, I am unable to draw any definite conclusions as to whether there is any merit to her allegations. Secondly, the issue of the recordings and the materials has already been decided by two courts. As was noted in those decisions, what is required under the Act is a balancing of personal information that she seeks with other interests. These interests have been recognized by the legislation as requiring protection, protection which the trial court imposed after careful and thorough consideration. This was indeed recognized by the Court of Appeal at paragraph 32 where it stated:
“32 It was decidedly not the function of Justice Robertson to have the recordings examined or attempt to make any factual findings about those recordings. The proceedings before the Supreme Court were about balancing the right of the appellant to have access to personal information about her with the rights of the respondents not to have privileged or third party, personal information disclosed that would be an unreasonable invasion of their personal privacy. The content of the recordings, as received by the court, were transcribed and disclosed without redaction to the parties. I fail to see any merit in the appellant's complaint that Justice Robertson erred.”
[14] Consequently I am unable to agree that the entire materials, unredacted should be disclosed to the Applicant, on the basis of her allegation of mischief. The doctrine of res judicata prevents a rehearing of the issue, whether the allegation has any further merit can only be determined after she has access to the original audio recordings .The Respondent and Third Parties do not oppose this, subject to strict conditions, which they submit must be imposed. At that time it can be determined whether there are any discrepancies, giving rise to further or new issues. I am mindful that the allegations of tampering have been previously made by the Applicant. Justice Robertson was aware of this allegation , when she made her decision.
[15] The Appellant argues that Justice Robertson was ready to release the recordings to her (before the break at the March 9th,2010 hearing), until (her) counsel “stepped in”. I have reviewed the transcript of March 9, 2010, including each of the specific pages and lines referred to me by Ms. Coates, and including exhibit 1, page 21. At that time the court was engaged in discussions with counsel and inviting submissions. An example is when Mr. Clarke (at page 19) himself stepped in on behalf of the third party, Dr. Rickhi, to object to their release as his client claimed ownership of the digital recorder.
[16] What is important is the courts ultimate decision which was to hold the tapes for safekeeping and security purposes, while providing transcripts prepared by the court, to the parties. In my view the decision to provide full transcripts of the tapes is relevant to her request for access to them at this time. However, the question of whether the Court erred in its decision, that the Appellant had received proper disclosure was dealt with by the Court and later by the Court of Appeal.
[17] Similarly, with respect to Mr. Dunphy stating she was “absolutely entitled to rebuttal of the evidence” (as in Tab.8 of the Applicants affidavit), that question was not up to him to decide on the FOIPOP appeal. She made her application for disclosure and received the decision from the Court(s) with jurisdiction to rule on the extent of the disclosure to which she was entitled, under the law .
[18] As part of that ruling it was mentioned that the original information would be held by the Court, sealed in fact, for future consideration. Ms. Coates argues that this motion is in effect that future consideration. I shall now deal with that issue.
[19] In her decision Robertson J. stated at paragraph 51:
“ As earlier discussed, the digital recorder which belonged to Dr. Anil Rickhi and the tape from a phone recording device which belonged to Ms. Coates shall be held by the Court in a sealed packet for the subject of future applications or judicial consideration along with the balance of the Dunphy file, at her request.”
[20] It should be noted that there is no suggestion that the Dunphy materials were altered or tampered with. As well it is worth repeating it was the Applicant that requested that the Court hold on to the materials and further it was the finding of the Court that the redactions were not significant. Nothing was held back in regard to the audio tapes. All was disclosed and given to Ms. Coates.
[21] It is true this is a future application in a matter which is being judicially considered. It was held previously that the investigators process and conclusions were in no way relevant, nor was the termination of the Appellant’s employment.
[22] The Applicant has referred to the CDHC Human Resources Policy and specifically, among others, policy 1:7:2 contained at Tab 9 of her brief. This policy requires the investigator appointed by Human Resources to provide a “verbal briefing of the evidence” to ensure that the parties are given “a reasonable opportunity to supplement or contradict the information”. The Applicant submits she cannot rebut information she does not have, and thus should be granted access to the Dunphy materials.
[23] It can be reasonably inferred that the materials may be relevant to future proceedings, in terms of the substance of a claim by Ms. Coates. It is an unreasonable inference that Justice Robertson meant they would be available for a future attack on the merits of her decision in regard to freedom of information application, save for a new matter or issue arising therefrom. I had previously found and I hereby affirm that the allegation of voice recording mischief has not yet been established, and has not risen, at this point, to the level of a new issue. This means therefore, the order presently sought by Ms. Coates could amount to a collateral attack on both the trial and appeal levels of this court, as her request for further disclosure is for more disclosure than was already granted.
Decision:
[24] I have read and considered the affidavit of Ms. Coates sworn to on December 9, 2011 filed in support of this motion. Having done so, I am unable to draw any definite conclusions, other than that Ms. Coates believes the audio recordings have been altered. The discrepancies and alleged errors referred to in the affidavit are disjointed and difficult to follow, notwithstanding the obvious and considerable effort put forth by Ms. Coates, in this regard. The transcribed audio recordings are more easily understood, but even those were repetitive at times in the materials she provided. It is apparent, a “relistening” will be necessary to confirm or deny any discrepancies as contained in her allegation.
[25] I have considered also the brief filed by Ms. Coates and in particular her reference to her right to have personal information about her corrected. In her Notice of Motion, Ms. Coates pleaded that the purpose of the inspection and analysis is to examine personal information collected and recorded which she asserts to be false and of a discrediting nature. The bulk of her affidavit deals with the audio and digital voice recordings, even though she seeks also “Mr. Dunphy’s investigation materials”.
[26] I questioned the applicant specifically, a number of times to determine exactly the nature of her request in this motion. While her answers were somewhat equivocal, the gist of her request is for her personal information to be extracted from the redacted materials and disclosed to her.
[27] The Civil Procedure Rules allow this court a discretion on motions which may be limited by a specific rule (Rule 94.06). This access motion is not being contested by either Respondent with respect to Dr. Rickhi’s audio digital tape recording and the audio tape cassette of Ms. Coates; except that the Respondents are gravely concerned with preserving the integrity of both recordings and want to ensure they are not compromised in any way.
[28] Thus the Respondents, particularly the Third Party Respondents’ request strict conditions, to include listening only, with no touching or contact by any party or their representatives, who shall have the right to be present at all times. Further they submit that this should take place only in the presence of court staff who shall supervise the access, and be present at all times. In addition, they request that no copying or reproduction of the tape or digital recording shall be permitted except by the Court, with the required undertaking pursuant to Rule 85.
[29] In summary, there are essentially two issues to be decided on this motion. I concur with the CDHA that these issues can be accurately stated as follows:
(a) The right of the Applicant to examine the audio recordings currently sealed in the Court file; and
(b) The right of the Applicant to inspect Mr. Dunphy’s investigation materials.
(a) The Audio Recordings
[30] CDHA essentially supports the position of the third parties, and points out that authenticity and accuracy of the recordings is a matter of dispute and could be questioned further in the future. CDHA states therefore that all parties must have the right to be present for any review or access of the audio recordings.
[31] Ms. Coates asks the Court, how she will ever be able to prove or authenticate that what has been given to her is accurate. The court can do no more than decide what is being asked at this time. That is to permit access for examination, inspection and analysis. Subject to the conditions which I have hereinafter set out in paragraph 46, I hereby grant the Applicant’s motion for access to the audio (digital and cassette) recordings.
[32] In granting access to the recordings, the overriding consideration shall be safeguarding the continuity and integrity of the evidence, under seal in the event that they become the subject of future processes, as was done previously by agreement with the parties.
(b) The Dunphy Materials
[33] Once again, the Applicant’s position is that she cannot rebut information she does not have, and that there should be no separation of the tapes and the materials as it involved the same process. This she submits results in an injustice to her.
[34] In respect of the materials gathered by Mr. Dunphy on behalf of CDHA, the issue of access to them was squarely before Robertson, J, who made a finding that the Applicant had received a copy of all documentation in the Dunphy materials, less the few redactions found to be appropriate by her and later the Court of Appeal.
[35] CDHA submits that the principle of “issue estoppel” prohibits the Applicant from seeking further access. Citing the case of Hoque v Montreal Trust Co. of Canada 1997 NSCA 153 the CDHA relies on the two principles of res judicata which (1) prevents the re-litigation of issues already addressed and (2) requires that a party bring forward all claims and defences in respect of a cause of action , in the first proceeding.
[36] The test for “issue estoppel” to be raised, as cited in the CDHA’s brief, requires that the prior decision be (1) a final decision given by a court of competent jurisdiction; (2) that the decision involve(d) the same issue or cause of action as presently being advance; (3) that the parties to the proceedings be the same parties in the present action.
[37] It is clear that this matter involves a final decision and the same parties. As to whether the matter involves the same issue, the following paragraph is submitted by the Respondent, CDHA, as to the test for “issue estoppel”:
“21. CDHA respectfully submits that the parties are clearly the same in this case, and a final determination of the issues was delivered in the decision of the Court of Appeal issued on January 20, 2012. Further, the decisions of Justice Robertson and the Court of Appeal determined specifically that the Applicant was not entitled to further access to the Dunphy investigation materials. Therefore, the three elements required to establish issue estoppel are present in this case.”
[38] I pause here to ask whether the issue has become a different issue, in light of Applicant’s allegation of tape recording mischief. As argued by the Respondent, does this allegation necessitate the disclosure of what had been previously protected under the legislation?
[39] The Appellant brought forward the case of The King v. Sussex Justices 1924 1 K.B. 256 for the well known proposition that justice must not only be done, “but should manifestly and undoubtedly be seen to be done”. In that case, a deputy clerk who sat with the justices during their deliberations, was also a member of the firm of solicitors engaged in the civil proceedings for damages against the applicant in respect to the same collision as giving rise to the charge being considered.
[40] The Court stated at page 259:
“The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”
[41] I have also been provided with the case of K.B. and B.J. v Minister of Community Services 2010 NSCA 75 ,where at paragraph 15 our Nova Scotia Appeal stated, as to the exercise of judicial discretion:
“With respect to the trial judge’s exercise of judicial discretion, the test is whether the trial judge erred in principle in directing himself in the exercise of discretion or that the result is so clearly wrong as to amount to an injustice (Elsom v Elsom [1989] S.C.J. No. 48 (S.C.C.), para 19).”
[42] I am not satisfied that the introduction of tape recording mischief as an issue by the Applicant is sufficient to prevent the application of the doctrine of “issue estoppel”. In my respect view, the issue is the same, the decision has been made, and therefore res judicata applies.
[43] Consequently it would not be appropriate for me to rule on whether justice had been done or seen to be done, except to say that justice cannot be seen to be done if matters are permitted to be re-litigated, over and again. Whether there was a proper exercise of discretion has been properly reviewed by the Appeal Court , which directly stated , the learned Justice made no error.
[44] I must in my decision on this motion, properly respect both decisions and not allow them to be attacked collaterally. I have decided based upon what has been submitted , that no new issue has been raised to merit any further intervention by this court at this time.
Conclusion:
[45] The Applicant’s motion for access to the Dunphy investigation materials is denied. There is no information contained in those materials which the Applicant has not received with the exception of the materials that the Courts have already been determined, that the Applicant is not entitled. Any personal information of hers contained therein was the subject of the court’s determination, based on the balancing of the appropriate facts as required by the legislation, and affirmed by the Court of Appeal.
[46] The Applicant’s motion for access to the audio cassette tape and the audio digital recordings is hereby granted subject to the following terms and conditions:
(i) No party shall access the audio cassette tape or digital recorder without court supervision;
(ii) Each party shall have a right to be present or have a representative in attendance as part of the access procedure.
(iii) No party or representative shall have physical access or gain physical possession of the sealed materials including being able to physically touch the evidence or utilize any equipment that would affect the integrity of the evidence;
(iv) All parties or representatives shall be given an opportunity to listen to the recordings through a court device, under the supervision of court officials, as designated by the Prothonotary;
(v) The parties shall undertake not to broadcast or distribute all or part of the audio cassette and digital recordings in any circumstances. The undertaking shall extend to keeping the recordings confidential including not allowing access, copying, or listening by any individual or entity. (See paras 48 - 53 herein)
(vi) Court staff will ensure that the equipment used to play both the audio cassette and the digital recorder will not affect the integrity of those records;
(vii) During the listening process the tapes may be replayed, rewound, paused, stopped and forwarded from time to time as may be required for inspection and analysis but care shall be taken to ensure the integrity of the recordings at all times and no one other than designated court officials may operate the equipment necessary for this purpose.
(viii) The process for listening, inspection and analysing shall not extend beyond two (2) hours and thirty (30) minutes. Included in that time will be a break of 15 minutes, at a appropriate time approximately mid way through that proceeding, if requested by any party.
(ix) The Applicant and counsel for the parties shall make arrangements for compliance and implementation of the order by contacting the Prothonotary’s office, at all times allowing the Prothonotary a reasonable time to make suitable arrangements for equipment and other means necessary to carry out the terms of this order.
(x) The Prothonotary shall designate a Sheriff and Court Reporter or other court staff as needed to oversee and supervise the access granted herein.
(xi) The Prothonotary and the Prothonotary’s office shall be guided at all times by the considerations in Rule 85.02(4);
(xii) The parties shall in contacting the Prothonotary’s office arrange for the time and availability of all parties to be present expediting matters as much as possible.
(xiii) All terms and provisions of this order are subject to the Court’s availability and capability to conduct the access in accordance with these provisions.
(xiiii) Any questions or unresolved issues which arise during this process, may be brought back before the Court (by way of further motion) for further direction as the parties see fit.
[47] I have further determined at this time that it is not appropriate to order that an electronic copy of the recordings be provided. Doing so would only serve to provide a third point of reference which will need to be compared to the court transcripts already provided as well as the original recordings. I believe that having two sources for comparison at this point is the most prudent course of action in order for the Applicant to be able to verify her concerns. I am not satisfied, based on the submissions I have heard that such a copy would satisfy the concerns of Ms. Coates, even if the recordings were capable of being copied and certified by the Court.
Undertaking pursuant to Rule 85
[48] Rule 85.02 requires a person seeking access to a court record of a proceeding to provide an undertaking, under Rule 85.02(2)(c), if an audio recording of a proceeding is requested. The undertaking the person must give is not to broadcast or distribute all or part of the recording, unless a judge excepts a person from the undertaking or orders otherwise.
[49] Mr. Clarke on behalf of the third parties requested such an undertaking, primarily if the Court was going to order that an electronic copy of the recordings be provided. Having decided not to provide copies, this would appear to alleviate the need for such an undertaking. The CDHA, however, in their supplementary submissions, stated that the undertaking provided for in Rule 85 prohibiting broadcast, should be provided by any party obtaining access to the sealed audio recordings.
[50] The Applicant opposes such an undertaking stating she is entitled to the information granted to her under the FOIPOP Appeal. While the order dismissing the Appeal contained no provision regarding distribution and broadcast, the Rules (85.04) allow for a confidentiality order to be granted and further states that an order which provides for a document or exhibit to be sealed is an example of a confidentiality order. Further, Rule 85.02 (4) requires the Prothonotary to refuse to comply with a requirement to provide access to court records or evidence that results in a breach of a confidentiality order or any serious risk to the integrity of the record or evidence.
[51] Justice Robertson ordered the tapes sealed, thus making them confidential. While the transcripts were provided it is the sealed tapes to which the Applicant now seeks access. The affidavit further alleges the tapes may have been altered, and this allegation makes serious risk to the integrity of the record, a relevant consideration. This is why they were in fact sealed by Justice Robertson. Ultimately it was the Applicant through her counsel, who requested that they be held by the Court.
[52] Weighing and considering these factors I believe it is prudent to require an undertaking of the parties not to broadcast or distribute the sealed audio recordings . This will ensure the integrity of this evidence while it is under review. Accordingly all recordings and materials sealed will remain sealed. Apart from the limited order for access granted herein, the confidentiality of the sealed tapes and material will continue until such time as the court orders otherwise.
[53] The Respondent and Third Parties, in their submission sought an exception to the undertaking to allow for testing by a single expert. The Applicant opposed such an exception stating that copies of tapes, unlike originals, would not satisfy a credible examination. The exception sought was later withdrawn, and therefore I make no such exception to the undertaking required. I am mindful that the undertaking requested of the parties imposes a level of confidentiality not previously required in respect of the transcripts which were disclosed. I do so bearing in mind that it is the tapes that are presently sealed by the court and as well the serious nature of the allegation made by the Applicant. Once access has been granted, the parties may consider their positions further with respect to the undertaking or the future use of these recordings, and seek court approval as they deem advisable.
[54] Order accordingly.
J.