Citation: Roué v. Nova Scotia, 2013 NSSC 45
Date: 20130206
Docket: Hfx No. 407754
Registry: Halifax
Between:
Joan Elizabeth Roué and Lawrence James Roué
Applicants
v.
Her Majesty the Queen in Right of the Province of Nova Scotia,
Lengkeek Vessel Engineering Inc.,
Lunenburg County Shipwrights Incorporated, carrying on business as
Covey Island Boatworks, Lunenburg Foundry & Engineering
Incorporated, Lunenburg Shipyard Alliance Limited, MHPM Project
Managers Incorporated, and Snyder’s Shipyard Limited
Respondents
Judge: The Honourable Justice Peter P. Rosinski
Heard: January 17, 2013, in Halifax, Nova Scotia
Counsel: Robert G. Belliveau, Q.C., and Michael Blades, for the Applicants
Edward Gores, Q.C., Steven B. Garland and Kevin K. Graham, for the Respondents
By the Court:
Introduction
[1] Joan Elizabeth Roué is the great granddaughter of William J. Roué; Lawrence James Roué is her father and the grandson of William J. Roué.
[2] William J. Roué is generally credited with the creation/design of the fabled Lunenburg-built schooner Bluenose, whose likeness is captured on the Canadian dime, Nova Scotia licence plates, and whose exploits are a source of pride for Nova Scotians. Her reputed 17 years of undefeated racing history impressed her with public recognition as the “Queen of the North Atlantic.”
[3] The Bluenose was built in 1921, and after her sinking in 1946, Bluenose II was built in or about 1963.
[4] In 1971, the year after William J. Roué passed away, the Bluenose II was sold for one dollar by members of the Oland family to the Government of Nova Scotia.
[5] Sometime around 1994, the Bluenose II Preservation Trust Society ensured that funds were raised to allow the vessel to remain seaworthy and at sea. The Society’s agreement with the Province later expired and responsibility for the Bluenose II fell exclusively on the Province.
[6] In the last several years, the Province has undertaken a restoration of the Bluenose II, engaging the services of the other Respondents herein to accomplish that end.
[7] Despite the Province owning the vessel, however, Joan and Lawrence Roué allege that they are respectively entitled to the copyright, and the moral rights in the copyright work, by operation of personal property law and pursuant to the Copyright Act, R.S.C. 1985, c. C-42, as amended.
Procedural Background
[8] In an attempt to enforce those rights, the Roués filed their (Second Amended) Notice of Application in Court in Halifax on November 28, 2012.
[9] In answer, the Respondents collectively filed a Notice of Contest on January 2, 2013. On that same day, the Respondents also filed the Notice of Motion, now before me, seeking the following relief:
1. An order pursuant to Rule 6.02 converting this application to an action.
2. An order pursuant to Rule 13.03 striking the claim contained in paragraph (b)(v) on page 3 of the Applicants’ Second Amended Notice of Application filed November 29, 2012.
3. An order pursuant to Rules 13.03 and/or 88.02 granting the following relief in respect of the Applicants’ Second Amended Notice of Application filed November 29, 2012:
(a) striking the entirety of paragraph 35 and the phrase “individually or jointly” from paragraphs (a)(i) and (a)(ii) on page 2, the phrase “both individually and jointly” from paragraphs 31 and 34 and the phrase “either individually, or by acting in concert,” from paragraph 40; and
(b) striking paragraph 10 and dismissing the Applicants’ entire claim against the Respondent MHPM Project Managers Inc.
4. In the alternative to paragraph 3, an order pursuant to Rule 38.10(1) requiring the Applicants to provide the Respondents, within 5 days:
(a) particulars of how each of the Respondents have “co-ordinated and conspired together in order to reproduce substantial parts of the schooner Bluenose II”, namely the activities engaged in by each of the Respondents including identification of:
(i) the combination or agreement alleged, including the specific Respondents that were parties to the combination or agreement and when the combination or agreement was entered into;
(ii) the intent or purpose of the combination or agreement; and
(iii) the activities that were carried out pursuant to the combination or agreement;
(b) to the extent any of the above-noted activities (or any of the activities alleged in paragraph 33 of the Applicants’ Second Amended Notice of Application) carried out by one of the Respondents was authorized by a co-Respondent, particulars identifying the co-Respondent that allegedly authorized the activity; and
(c) particulars of the activities of the Respondent MHPM Project Managers Inc. that are alleged to have infringed any copyright and/or moral rights alleged to be owned by the Applicants.
5. An order granting the Respondents their costs on this motion.
6. Such other relief as counsel may request and this Honourable Court may deem just and appropriate to grant.
[10] The pleadings herein provide the context to the motions. They are substantial and I attach them separately for that reason as Appendix A (Roué) and Appendix B (the Respondents) at the end of this decision. I also attach as Appendix C the “Summary of Issues” Kevin Graham posited in his November 30, 2012 sworn affidavit.
[11] What is evident from those pleadings and the oral arguments made at the hearing herein is that from the Roués’ perspective, the Bluenose II restoration is in relation to the same vessel that William J. Roué created/designed in 1921 and their copyright and moral rights in the copyright work remain viable and are being infringed/violated by the actions of the Respondents.
[12] On the other hand, the Respondents question whether William J. Roué’s creation/design of the Bluenose was original, was capable of copyright by anyone, and by him specifically. Even if it was, they argue that he was compensated for any use made of his drawings in the construction of Bluenose II, which was not a replica (using a “substantial portion” standard) of the Bluenose. Moreover, the Respondents say that neither of the Roués have any copyright or moral rights in the copyright work for a number of other reasons.
[13] Attached to the Notice of Application in Court are two pages of drawings containing the Asserted Work that are the bases of the Roué claims for infringement of the copyright of Joan Roué and the moral rights in the copyright of Lawrence Roué.
[14] Copyright entitlements are sourced in the Copyright Act, R.S.C. 1985, c. C‑42, as amended.
[15] The Roués argue that the Respondents have either violated the copyright by recently causing a substantial reproduction (called Bluenose II) of the Bluenose to be created in violation of s. 27 of the Copyright Act, or violated the moral rights in the “work” by naming the vessel Bluenose II, should it not be a substantial reproduction of the Bluenose, contrary to ss. 14.1 and 28.2 of the Copyright Act.
[16] To have a copyright infringement, the claimant must establish that a substantial copy was created of a copyright protected work, and that the disputed new work is not the product of independent design and creation.
[17] The Respondents argue that the copyright claimed in the two pages of drawings of the design of the Bluenose attached to the Notice of Application are not violated by the new vessel/Bluenose restoration in part because:
(i) William Roué’s design was not original or new;
(ii) it was not legally possible in 1921 to copyright those designs;
(iii) the name “Bluenose” is not included in the copyright because the title of the work is not “original and distinctive” nor, if it is inferred to be part of the “work,” has this specific claim been pleaded as it must be;
(iv) the copyright has not been properly/legally transferred to Joan Roué;
(v) the restoration of the Bluenose II is not a substantial reproduction of the Bluenose; it is an independent design by Marius Lengkeek, a designer and namesake of Lengkeek Vessel Engineering Inc., and not derived from the Bluenose drawings attached to the pleadings of the Applicants; and if the Bluenose design was used it was only “dictated by a utilitarian function of the article - s. 64.1, Copyright Act.
[18] At the hearing, I queried counsel regarding whether there were any reported cases involving copyright infringement of vessel designs.
[19] The only case located was Doral Boats Ltd. v. Bayliner Marine Corp. (1985), 5 C.I.P.R. 268, 5 C.P.R. (3d) 289 (FCTD), appeal allowed in part (1986), 9 C.I.P.R. 311 (FCA). It is not of particular use in the case at Bar given that more than 50 units of the boat in dispute were to be produced, with the result that the Industrial Design Act, R.S.C. 1970, c. I-8, applied, instead of the Copyright Act.
[20] In so far as the claimed infringement of the moral rights to the work are concerned the Respondents argue that:
(i) the moral rights have not been properly/legally transferred to Lawrence Roué;
(ii) the moral rights have not been violated due to the defence in s. 28.2(3)(b) of the Copyright Act - i.e. “steps taken in good faith to restore or preserve the work shall not by that act alone, constitute a distortion, mutilation or other modification of the work”;
(iii) the test of infringement of moral rights in a work, as set out in the case Prise de Parole Inc. v. Guérin, Éditeur Ltée (1995), 66 C.P.R. (3d) 257 (FCTD), at paras. 25 - 28, cannot be met by the Applicants in the case at Bar.
[21] Also relevant is the “counterclaim” that the Respondent Province would file if the Application in Court is converted to an action - see paras. 16 and 75 of its Brief. It is suggested in the evidence and pleadings that the Applicants, by proceeding with their Application, have “breached agreements with the Province,” and that such breaches cause this proceeding to constitute an abuse of process as referred to in CPR 88.02.
[22] The Respondents finally argue in their Notice of Contest that an otherwise successful claim by the Applicants is precluded due to a combination of a s. 41(1) Copyright Act limitation period, the doctrine of estoppel, and laches/acquiescence.
[23] To assist me on the motions, the Applicants (Roués) and Respondents respectively have filed the following affidavits:
- Robert G. Belliveau, Q.C., sworn (as amended) and filed October 9, 2012;
- Robert G. Belliveau, Q.C., sworn and filed January 9, 2013;
- Joan Elizabeth Roué sworn and filed January 9, 2013;
- Kevin K. Graham sworn and filed November 30, 2012;
- William E. Greenlaw sworn and filed January 2, 2013; and
- Michael S. Duchesneau sworn December 31, 2012, and filed January 2, 2013.
Position of the Parties vis à vis the Motions Herein
The Respondents
[24] The Respondents, as moving parties for the Motion, summarize their positions as follows:
A. Relief Sought
1. On this motion, the Respondents seek:
(a) an order pursuant to Rule 6.02 converting this application to an action; and
(b) an order pursuant to Rules 13.03 and/or 88.02 striking certain portions of the Applicants’ Second Amended Notice of Application, and dismissing the Applicants’ claim against the Respondent MHPM Project Managers Inc., and/or pursuant to Rule 38.10(1) requiring the Applicants to provide particulars thereof. ...
B. Motion to Convert
2. Conversion of this application to an action pursuant to Rule 6.02 of the Civil Procedure Rules is warranted in view of the following factors:
(a) the proceeding is factually complex and will involve numerous fact and expert witnesses for both the Applicants and the Respondents;
(b) the credibility of the parties’ fact and expert witnesses will likely be fundamental to resolution of the issues in this proceeding, including those in respect of the existence and/or ownership of the rights being asserted as well as the allegations of copyright and moral rights infringement, conspiracy, high-handed conduct and bad faith by the Respondents;
(c) discovery will be comprehensive as all nine parties have indicated that they require documentary and oral discovery of each adverse party;
(d) the Applicants’ case is dependent on whether any of the asserted rights exist and/or actually owned by the Applicants, and the Respondents’ knowledge of the relevant facts of same will largely depend on the information that the Respondents will receive via oral and documentary discovery;
(e) important witnesses cannot be identified quickly, including:
(i) fact and expert witnesses to provide evidence relating to the building of the BLUENOSE in 1920 - 1921 and the building of the BLUENOSE II in 1963, and the past repairs and restorations of same; and
(ii) possible witnesses required to impeach the credibility of the Applicants’ witnesses in respect of the alleged existence and ownership of the rights being asserted;
(f) this proceeding cannot be ready to be heard in months;
(g) the hearing of this proceeding is not of predictable length and content;
(h) the Respondent Her Majesty the Queen in Right of the Province of Nova Scotia (“the Province”) intends to bring claims based upon the same evidence the Respondents intend to assert as part of the defence of this proceeding, which can proceed by way of counterclaim in an action;
(i) it is unlikely that proceeding by way of application will be more efficient or less costly than by way of an action;
(j) the alleged rights of the Applicants will not be eroded over time; and
(k) only a single hearing is required.
Overall, the presumptions and each of factors set out in Rule 6.02 all mitigate in favour of this proceeding being converted to an action.
C. Motion to Strike and/or for Particulars
3. The Applicants’ Second Amended Notice of Application is devoid of any factual or legal basis in support of the request for injunctive relief restraining the Respondents’ use of “the name ‘Bluenose’ or variations thereof” in paragraph (b)(v) on page 3. As such, this paragraph ought to be struck.
4. The allegations in paragraph 35 of the Second Amended Notice of Application are bald and/or speculative allegations that the Respondents have “co-ordinated and conspired together” and “authorized” one another to carry out the activities referenced in the Second Amended Notice of Application. The Applicants have admitted that they do not have any additional material facts in support of these allegations but intend to seek same through discovery. As such, paragraph 35 and related allegations in the Second Amended Notice of Application ought to be struck.
5. Finally, the Second Amended Notice of Application as a whole does not disclose a reasonable cause of action against the Respondent MHPM Project Managers Inc. (“MHPM”) as the pleading is devoid of any material facts establishing that MHPM has engaged in any of the activities alleged to have infringed any copyright and/or moral rights allegedly owned by the Applicants. As such, the action against MHPM ought to be dismissed and the paragraphs relating to MHPM ought to be struck.
The Applicants (Roués)
[25] The Roués argue in response that:
(i) Notwithstanding the Respondents’ attempts to make it otherwise, this proceeding is straightforward and primarily concerned with the legal consequences of the [restoration] project. However, the Respondents have gone on to dispute facts, and thus create issues, in direct contradiction to previous [public] representations; ... the legitimate issues in this proceeding are few and primarily concerned with the legal consequences of undisputed facts - para. 25, Brief;
(ii) under CPR 6.02(3) a presumption exists for proceeding by application in court because, in spite of Mr. Belliveau’s October 9, 2012 assertion in his affidavit that “the application does not concern alleged rights that could be eroded over time,” the Roués argue in their Brief that “while rights will not erode in the sense that they will disappear, the fact is that a fundamental right asserted in this proceeding is being rendered meaningless with the passage of time [i.e. as public events pass on the associated financial opportunities for the Roués will be lost; not to be regained”] - para. 29, Brief;
(iii) Although the Respondents argue that an action is presumed under CPR 6.02(4) because credibility will be fundamental to the outcome, they do not specify in what respects credibility is in issue and for which issues/witnesses such that an action is clearly the preferable procedure. Moreover, the application in court process allows for adequate cross-examination, and while they may be required to proceed before knowing which witnesses could impeach the Applicants’ credibility, credibility of witnesses is not expected to play a central role in this case which relies heavily on public documentation and expert evidence.
(iv) The remaining factors in CPR 6.02(5) and (6) support the application process as the preferred choice:
(a) the important witnesses can quickly be identified, in part since the parties have been aware that such litigation was an eventuality since 2009;
(b) although all the parties herein seek to discover each other, there is no reason that fairly early deadlines cannot be set for production of documents, completion of discoveries and the filing of expert reports (as suggested by Mr. Belliveau in his December 11, 2012 letter to Stephen Garland - Exh. I of Mr. Belliveau’s January 9, 2013 affidavit); Moreover, Mr. Roué is elderly, and in failing health and it would be prudent to accelerate the process as much as possible;
(c) while the parties may disagree about the number and extent of the issues that will require resolution such disagreement does not necessarily create a level of unpredictability that would favour an action - see Justice Bryson’s comments (as he then was) in Citibank Canada v. Begg, 2010 NSSC 56, at para. 26 - Moreover, the use of affidavits in the application in court process may increase the likelihood that the hearing will be of predictable length and content; Bearing in mind that the primary controversy is as to what are the legal consequences of largely undisputed facts and expert opinion evidence, an application is well suited to the case at Bar;
(d) While the Respondents say that credibility is fundamental to the resolution of the issues as pleaded, they give no reason or explanation as to why those credibility issues cannot be resolved using the application rather than action process. Moreover, the controversy is concerned with the legal consequences of largely undisputed facts, and where established to his/her satisfaction, the judge may permit direct (viva voce) testimony - CPR 6.02(5)(d).
[26] As to CPR 6.02(6) and the relative cost of an application versus an action, that will necessarily involve considerable speculation yet the application process is designed to reduce the delay and cost of getting to a hearing - with an action it is more likely that the less structured nature of the proceeding will cause it to be more delayed and more costly. Moreover, Mr. Roué’s health concerns, as a party and witness, are legitimate considerations that should favour whatever process is expected to be quicker.
[27] While the Respondents suggest that they would file a counterclaim if the proceeding was converted to an action, such claims can be easily accommodated by the application procedure, especially if there is “sufficient overlap in issues and evidence” per Justice Bryson (as he then was) in Citibank, at para. 32. He suggested that if a motion for directions could not include it, the Respondents could make an expedited separate application to be heard in conjunction with the presently constituted one - see the Respondents’ Brief, p. 24, para. 75, where they state: “If this matter is converted to an action, the Province intends to bring a counterclaim seeking remedies based on the same evidence that the Respondents intend to assert as part of [their] defence... if the matter proceeds by way of application, the Province will be forced to commence a separate proceeding... which will result in unnecessary duplication and the risk of inconsistent decisions.”
[28] I have not overlooked that the Respondents filed a Reply Brief on January 14, 2013.
[29] In it, they argued that:
(i) Joan Roué’s affidavit (paras. 5 - 18 and Exhibits A to N) is largely inadmissible (in part because she does not identify the source of the information and swear to her belief in its truth);
(ii) the Roués’ baldly claim, incorrectly, that the proceeding is “concerned primarily with the legal consequences of undisputed facts and expert opinion” - This claim is contrary to the issues raised in the pleadings;
(iii) the October 9, 2012 sworn affidavit of Mr. Belliveau that “the Application does not concern alleged rights that could be eroded over time” is contradicted by the Applicants’ position in their Brief (paras. 27 - 33 and 58); and if an infringement is ultimately found against the Respondents, William J. Roué’s claimed moral right of attribution can still be maintained as “steps can easily be taken to associate William J. Roué’s name with the Bluenose II as restored, and thus, that right will not be eroded over time.”
(iv) The Applicants “have not provided any evidence explaining the substance of the testimony of Mr. Roué or the importance of same to this proceeding,” and therefore the claim that his testimony is important and his health is failing are not persuasive factors favouring an application process; especially since the Applicants have known about the restoration project since late 2009, but delayed and only commenced this proceeding in October, 2012;
(v) That the case law relied on by the Applicants is all factually distinguishable from the case at Bar.
Why this Application in Court Should not be Converted to an Action
[30] CPR 6 reads as follows:
Rule 6 ‑ Choosing Between Action and Application
Choice of proceeding
6.01 A person may choose to start an action or an application as the person is satisfied would be appropriate, unless legislation under which the proceeding is started requires only one kind of proceeding.
Converting action or application
6.02 (1) A judge may order that a proceeding started as an action be converted to an application or that a proceeding started as an application be converted to an action.
(2) A party who proposes that a claim be determined by an action, rather than an application, has the burden of satisfying the judge that an application should be converted to an action, or an action should not be converted to an application.
(3) An application is presumed to be preferable to an action if either of the following is established:
(a) substantive rights asserted by a party will be eroded in the time it will take to bring an action to trial, and the erosion will be significantly lessened if the dispute is resolved by application;
(b) the court is requested to hold several hearings in one proceeding, such as with some proceedings for corporate reorganization.
(4) An action is presumed to be preferable to an application, if the presumption in favour of an application does not apply and either of the following is established:
(a) a party has, and wishes to exercise, a right to trial by jury and it is unreasonable to deprive the party of that right;
(b) it is unreasonable to require a party to disclose information about witnesses early in the proceeding, such as information about a witness that may be withheld if the witness is to be called only to impeach credibility.
(5) On a motion to convert a proceeding, factors in favour of an application include each of the following:
(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;
(d) the evidence is such that credibility can satisfactorily be assessed by considering the whole of the evidence to be presented at the hearing, including affidavit evidence, permitted direct testimony, and cross-examination.
(6) The relative cost and delay of an action or an application are circumstances to be considered by a judge who determines a motion to convert a proceeding.
Evidence for converting an application
6.03 (1) A party who makes a motion to convert an application to an action must, by affidavit, provide all of the following:
(a) a description of the evidence the party would seek to introduce;
(b) the party’s position on all issues raised by the application;
(c) disclosure of all further issues the party would raise by way of either a notice of contest, if the proceeding remains an application, or a statement of defence, if the proceeding is converted to an action.
(2) Despite Rule 6.03(1), a party who wishes to withhold disclosure of evidence the party will produce only to impeach a witness need not describe the evidence, or the investigations to be undertaken to obtain the evidence.
[31] Given that the “Application in Court” as a kind of proceeding has only been in existence since January 1, 2009, when the new Rules breathed their first breath, I prefer to rely only on the jurisprudence specifically interpreting that Rule.
[32] I found useful the following cases:
Guest v. MacDonald, 2012 NSSC 452 (“Guest”), per Moir, J.
Milburn v. Growthworks Canadian Fund Ltd., 2012 NSSC 106 (“Milburn”), per Murray, J.;
Matthews v. Ocean Nutrition Canada Ltd., 2012 NSSC 142 (“Matthews”), per Wood, J.;
Boone v. Medusa Medical Technologies Inc., 2011 NSSC 492 (“Boone”), per Boudreau, J.
Matheson v. CIBC Wood Gundy (cob Wood World Markets/Marchés M), 2011 NSSC 85 (“Matheson”), per LeBlanc, J.;
Jeffrie v. Hendriksen, 2011 NSSC 292 (“Jeffrie”), per Pickup, J.
Citibank Canada v. Begg, 2010 NSSC 56 (“Begg”), per Bryson, J. (as he then was);
Brodie v. Jentronics, 2009 NSSC 399 (“Brodie”), per Moir, J.;
Kings (County) v. Berwick (Town), 2009 NSSC 398 (“Kings”), per Warner, J.;
[33] I keep in mind as well that the new Rules were a radical redesign effort, and their object is reflected in CPR 1.01:
Object of these Rules
1.01 These Rules are for the just, speedy, and inexpensive determination of every proceeding.
[34] In an effort to interpret the Civil Procedure Rules in issue in the case at Bar, I bear in mind that, as judge made rules, their precise legal status is still rooted in s. 46 to 51 of the Judicature Act, R.S.N.S. 1989, C. 240. Since they can modify statutory provisions concerning practice and procedure in the Superior Court pursuant to s. 49, the rules have a legal status equivalent to that of provincial statutes: MacNeil v. MacNeil (1975), 14 N.S.R. (2d) 398 (CA), and Secunda Marine Services Ltd. v. Caterpillar Inc., 2012 NSSC 53, at para. 51, and Abbott and Haliburton Co. Ltd. v. White Burgess Langille Inman (c.o.b. WBLI Chartered Accountants), 2012 NSSC 210, at para. 79.
[35] I, therefore, bear in mind the guidance of our Court of Appeal in Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44, per MacDonald, C.J., regarding statutory interpretation generally, which principles apply to our Civil Procedure Rules by virtue of their status as equivalent to statutes.
[36] I also note that in the Nova Scotia Civil Procedure Rules, 2nd Ed., looseleaf text updated to January 18, 2013, Lexis-Nexis Canada Inc. 2008 (Markham Ontario), the title page reads as follows:
Designated as the official annotated version of the Rules by the Nova Scotia Department of Justice - Editor, D. A. Rollie Thompson, Prof. of Law, Dalhousie University.
[37] Prof. Thompson was intimately involved in the creation of these new Rules. At p. 104, we find under the “Overview”:
In the end, the new Rules appear to be moved by conflicting impulses:
- A desire to simplify the language of the Rules, while also providing more detailed prescriptions for every step in civil proceedings;
- A drive to restrict discovery to reduce cost and delay, while pushing for the earlier resolution of cases; and
- An attempt to fix trial dates earlier, while making it more work to get to trial.
[38] At p. 115, we find:
The application in court: a summary trial?
... The architects of the new Rules have suggested that this new procedure can be a vehicle to conduct a form of summary trial ... By a summary trial, I mean a trial where affidavits substitute for direct examination [or expert reports under Rule 55] and an abbreviated pre-trial process gets the parties to a trial/hearing quicker. Rules 5.07(3) and (4) require a motion for directions, supported by affidavit, to be heard within 25 days of the filing and the judge then has broad powers in Rule 5.09 to control and abbreviate the process.
[39] While not binding on courts, these opinions/observations may be added to the mix in an effort to get a sense of what the drafters of the Rules may have intended when they completely rewrote the Rules.
[40] Thus, my interpretive task is to read the words of the relevant Civil Procedure Rules in the case at Bar “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme” of the Rules, the object of the Rules, and the intention of the drafters.
[41] I observe that CPR 5.01(4) reads:
(4) The application in court is for longer hearings, and it is available, in appropriate circumstances, as a flexible and speedy alternative to an action.
[42] Under the old Rules (1972), the choices of an originating mode of proceeding were limited to:
- originating notice (application) - Rule 9.02;
- petitions [Rules 57 and 59 - 61] - Rule 9.03; and
- originating notice (action) - Rule 9.04.
[43] Rule 9.02 read:
Commencing a proceeding (application)
9.02 A proceeding, other than a proceeding under Rule 57 and Rules 59 to 61,
(a) in which the sole or principal question at issue is, or is likely to be, a question of law, or one of construction of an enactment, will, contract, or other document;
(b) in which there is unlikely to be any substantial dispute of fact;
(c) which may be commenced by an originating application, originating motion, originating summons, petition, or otherwise under an enactment;
shall be commenced by filing an originating notice (application inter partes) in Form 9.02A in a proceeding between parties, and by an originating notice (ex parte application) in Form 9.02B in an ex parte proceeding.
[44] Clearly, Rule 9.02 envisaged very limited factual disputes as the extent of its intended usefulness. The only other choice was an action, which was intended to catch all other disputes in its scope.
[45] The new Application in Court was meant to fit those factual disputes which were sufficiently well defined and suited to allow their “summary” determination. In many respects, understanding what is, and what is not a factual dispute capable of “summary” determination may vary according to the “eye of the beholder.”
[46] I reproduce, at this juncture, Justice Moir’s comments in Guest as they are the most recent perspective by this Court on the relevant Rules and a helpful insight, especially since he was instrumental in their drafting:
22 The MacDonalds also rely on the second presumption in Rule 6.02(4), which arises when it is established that:
(b) it is unreasonable to require a party to disclose information about witnesses early in the proceeding, such as information about a witness that may be withheld if the witness is to be called only to impeach credibility.
This presumption touches on an essential difference between actions and applications. Also, it cannot be understood apart from a party's disclosure obligations in either kind of proceeding.
23 The application provides judicial management, and assignment of dates for the hearing, at the beginning. The action, with some exceptions such as case management, leaves the litigation in the hands of the parties until one of them calls for trial dates. Judges who give directions at the beginning of applications, and judges who set trial dates, need as much information as can be given to measure the amount of time required for the hearing or trial and when the parties will be ready. But, the judge who gives directions also needs to be able to set a path over a short distance for disclosure, production of affidavit evidence, discovery, out‑of‑court cross‑examination, and so on. The presumption in this Rule recognizes that an application has a problem with a party who legitimately holds cards close to the chest.
24 As Justice Warner pointed out in Kings (County) v. Berwick (Town), 2009 NSSC 398 (Warner J.) at para. 21, the presumption in Rule 6.02(4)(b) concerns "information about witnesses that a party should not be required to disclose before trial, not information which, at this time, is not available." The later may be a subject for inquiry under Rule 6.02(5)(a), which we shall come to.
25 The presumption is about disclosure obligations, and it cannot be understood except in light of the Rules for disclosure and discovery. Rules 15.02, 16.03, and 17.02 provide the basic disclosure obligations for documents, electronic information, and real evidence. All three apply in "a defended action or contested application". The presumption in Rule 14.08(1) is that full disclosure is "necessary for justice in a proceeding". That applies to both actions and applications. See the definition of "proceeding" in Rule 94.10.
26 Rule 18 ‑ Discovery makes provision for discovery subpoenas in actions and applications. The discovering party has the right to hear answers to any question that asks for relevant information or that has investigative value. The same goes for Rule 19 ‑ Interrogatories.
27 The broad rights to disclosure and discovery are qualified by Rule 94.09(1), which permits a party to choose to withhold information "for the sole purpose of impeaching a witness". The choice comes with a high price.
28 Rule 94.09(2) reads:
All of the following apply to a party who chooses to withhold a document, not answer a question, or withhold other information for the sole purpose of impeaching a witness:
(a) the party cannot use the witness who is subject to impeachment as an affiant on a motion, or seek to call the witness to give direct evidence on a motion;
(b) the party cannot call the witness who is subject to impeachment as a witness for the party at a trial or hearing, unless the presiding judge permits otherwise;
(c) the party may only offer the withheld document or make use of the withheld information to impeach credibility, and it cannot be used by the withholding party to prove any fact in issue other than credibility;
(d) the party must immediately disclose the document or immediately provide the answer or the information, when the party decides not to use it or becomes aware the witness is not to be called.
29 When gaging whether it is unreasonable to force disclosure of information within the "such as" part of the presumption in 6.02(4), the court has to ascertain whether the party is going to pay that price. In this case, Mr. Madill had no difficulty advising us, in open court, of the kinds of witnesses his clients have in mind. Otherwise, resort to Rule 85.06(2) may have been necessary.
30 The first part of the presumption applies also to a party who wishes to hold a card close to the chest, unless it is forced out at discovery.
31 Such a card could not be a relevant document, electronic information, or real evidence to which disclosure obligations attach. It would have to be information only accessible through discovery. Again, a judge hearing a motion to convert an application to an action cannot determine whether it is unreasonable to require disclosure, unless the judge knows what is being held back. Again, resort to Rule 85.06(2) may be necessary.
32 Rule 6 is complicated. In addition to requiring us to apply a principle of proportionality and layering that with competing presumptions, it offers four factors. Rule 6.02(5) reads:
On a motion to convert a proceeding, factors in favour of an application include each of the following:
(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;
(d) the evidence is such that credibility can satisfactorily be assessed by considering the whole of the evidence to be presented at the hearing, including affidavit evidence, permitted direct testimony, and cross‑examination.
33 The first three of these factors are consistent with a distinction that seems to be emerging from the authorities. We appear to distinguish cases in which the parties need much time to complete investigative work and those in which investigation could be wrapped up in months. Despite the argument made in Langille v. Dzierzanowski, see para. 23, proportionality does not appear to depend on complexity or the amount involved. Kings (County) v. Berwick (Town) involved much complexity and a large amount. Justice Murphy in Monk and the Chief Justice in Langille were more concerned about the investigative work still to be done in those medical malpractice cases: Monk at para. 20 and Langille at para. 23.
34 The last of the four factors needs to be understood in light of the proposition that cross‑examination, rather than the rule against leading on direct, is the main tool for testing credibility: Kings (County) v. Berwick (Town), para. 40 and 42; Jeffrie v. Hendriksen, para. 49 and 57.
[47] The parties herein have suggested alternative interpretations of some of the relevant Rules which requires me to examine those Rules.
[48] For example, the Respondents have argued that the wording of CPR 6.02(4)(b):
(b) it is unreasonable to require a party to disclose information about witnesses early in the proceeding, such as information about a witness that may be withheld if the witness is to be called only to impeach credibility.
permits the Respondents to argue that they “are unable at this early stage of the proceeding to determine whether and how all issues will be dealt with, including the possible impeachment of the credibility of the Applicants’ witnesses. As such ... it would be unfair and unreasonable to require the Respondents to provide early disclosure of complete witness information prior to the completion of documentary and oral discovery [relying on Murray, J. in Milburn v. Growthworks Canadian Fund Ltd., 2012 NSSC 106, at paras. 57 - 58].” [my emphasis]
[49] Bearing in mind the wording and placement of this subsection within a Rule entitled “Choosing Between an Action and Application,” and Justice Moir’s comments in Guest, it is safe to interpret 6.02(4)(b) as intending to compare the potential outcomes of disclosing witness information as between use of an action and application.
[50] Thus, witness information which may be held back in an action, such as impeachment of witnesses’ evidence, if likely to play a significant role in a proceeding, would tend to favour the use of an action, rather than the application which is premised on direct evidence being generally presented by affidavits - CPR 5.09(2)(e) and (i).
[51] Notably, however, CPR 6.03(2) permits the Respondents to conceal any evidence of such credibility impeachment at this motion, but ongoing concealment may require resort to CPR 85.06(2).
[52] Moreover, CPR 5.11(1) does permit late filing of supplementary affidavits, which conceivably could include impeachment witnesses evidence, thus neutralizing to some extent the advantage of withholding such information in actions.
[53] In the case at Bar, the Respondents have relied on Rule 6.02(4)(b) and Milburn to support their position that an action is to be presumed.
[54] The facts in Milburn are distinguishable and it is confined to those facts. As Justice Murray stated in the context of motions to convert an application to an action, which application sought to pursue a claim for oppression involving a great number of parties (para. 54) and in which no Notice of Contest was filed (para. 56) and no Motion for Directions had been heard (para. 35):
44 Fundamental in any litigation is the Defendant/Respondent knowing the case he/she must meet. ... the Respondents claim the Applicants are seeking "unspecified relief" from oppression and has not set out the grounds for the Application.
. . .
57 Providing information on a party's witness is a logical extension of needing to know first the full case against the party. In many respects the Application remains in it's infancy stage. Requiring the Respondents to provide information regarding witnesses is manifestly unfair and as a consequence is also unreasonable.
[55] I have concluded in the case at Bar that Rule 6.02(4)(b) is a neutral factor, and therefore an action is not presumed.
[56] Regarding the interpretation of Rule 6.02(5), I firstly note that it reads in part:
(5) ... factors in favour of an application include each of the following: ... [emphasis added]
[57] Clearly, the list of factors in Rule 6.02(5) was not intended to be exhaustive.
[58] I conclude, moreover, that collectively the wording in Rule 6.02(5)(a) to (d) represent an effort to itemize some of the factors most likely to provide a representative estimate of how soon an application could be heard, and how long the hearing might take.
[59] Generally, the longer the time before an application can be heard, and the longer the hearing is likely to be, the less likely is an application preferable as a means of proceeding to an action.
[60] At this juncture, I should note that s. 34 of the Copyright Act [infringement of copyright and moral rights] itself allows for both applications and actions as a means of proceeding. Thus, copyright is not considered so inherently complex as to require an action to resolve the sometimes esoteric issues that arise.
[61] With these comments in mind, I conclude, consistent with CPR 1.01, [the object of the Rules is to attain “the just, speedy and inexpensive determination of every proceeding,”] that:
Rule 6.02(5)
(a) requires that the parties can more quickly (relative to an action) ascertain who their important witnesses will be;
(b) requires that the parties can be ready to be heard at a hearing sooner (relative to an action) rather than later;
(c) requires that the hearing of the application be of predictable length and content, so as to give one confidence at the early point in time that such assessments tend to take place that the application process is preferable to an action;
(d) requires that the hearing of the application will allow the court to assess and resolve credibility in a manner that is satisfactory when compared to what would take place in an action.
[62] I adopt Justice Pickup’s succinct 3 stage analysis in Jeffrie v. Hendriksen, 2011 NSSC 292, at para. 13:
1) first, the court must assess whether any of the presumptions in favour of an application are applicable under Rule 6.02(3);
2) second, if the court determines that no presumptions apply in favour of an application, it must assess whether any presumptions in favour of an action apply under Rule 6.02(4);
3) third, the court must determine the extent to which each of the four factors favouring an application are present under Rule 6.02(5) and determine the relative cost and delay as between an action and an application under Rule 6.02(6).
[63] Regarding stage 1 - [when an application is presumptively favoured] I find that an application is not presumptively favoured:
a - though the Applicants have made a claim for injunctive relief, given that there is an insufficient basis for them to argue that substantive rights will erode significantly more under the action process; and whereas
b - only one hearing is anticipated.
[64] Regarding stage 2 - [when an action is presumptively favoured] I find that an action is not presumptively favoured:
a - no party seeks a jury trial; and
b - it is not unreasonable “to require a party to disclose information about witnesses early in the proceeding” because the core factual issues herein are likely to be determined by expert witnesses who normally are identified early on and will be called to testify about the significance to the claimed intellectual property [copyright and moral] rights arising from the Asserted Drawings by William J. Roué and their similarity with the Bluenose II and the restored Bluenose II. The remaining core issues, even according to the “Summary of Issues” in Kevin Graham’s affidavit, are focused on legal questions such as: when, if at all, copyright was effected; were those rights validly transferred to the Applicants; and are they still exercisable in light of any alleged agreements the Applicants have made with the Province, or are they barred by a limitation period, or a form of estoppel, to cite some examples. While expert witnesses may need to be retained, and reports/affidavits will be produced, in my opinion, such advance work will greatly focus the inquiries at the hearing, saving time and expense. Furthermore, much expense could be saved if the parties instruct their counsel to make at least some of the many numerous factual agreements possible which could significantly reduce the need for affidavit evidence to be presented. Such reasonableness, which can only be hoped for as it cannot be guaranteed, is more likely if the parties are well aware of the witnesses and evidence that each anticipates presenting. After all, each of the parties have an interest in the “success” of the restoration, using that term in its broadest sense.
[65] Therefore, neither an action nor an application is presumptively favoured at this stage.
[66] Regarding stage 3 - turning to CPR 6.02(5) and (6), I find:
[67] Regarding CPR 6.02(5):
a - given that the parties have been aware of the legal controversy herein and have had communications since late in 2009 [see paras. 10 and 11 of William E. Greenlaw’s affidavit sworn January 2, 2013], they would likely have already turned their minds to ascertaining who their important witnesses would be should the matter proceed to litigation - the Application and Notice of Contest already contain some witness names [see para. 7 of William E. Greenlaw’s affidavit sworn January 2, 2013 for the Respondents], and while experts are expected to testify and some are as yet unnamed (the sorts of expected expertises required are identified by the Respondents in their expert witness summary in their Notice of Contest and the “Summary of Issues” appended to Kevin K. Graham’s November 30, 2012 sworn affidavit at paras. 4 and 10 thereof), their opinions will be based primarily on documented evidence such as the drawings/parameters, etc., of each of the Bluenose, Bluenose II and the restored Bluenose II. Therefore, the evidence of at least some of these witnesses is well suited to affidavits, and such witnesses should be relatively simple to identify in quick order. I note that when I asked Mr. Garland at the hearing about expert evidence he suggested the core issue herein is: “are the Marius Lengkeek drawings an infringement of the copyright” asserted by the Roués? He suggested further that Lengkeek and maybe one other designer would be the key witnesses for the Respondents on this issue, though surprisingly the other designer is not identified as a witness in the Notice of Contest. The Applicants have identified themselves and “experts” as witnesses. I infer that they similarly have identified who are their important (lay and expert) witnesses;
b - Given my above-noted conclusion, I find that the parties can be ready to be heard in months rather than years if they are reasonable in their assessment of, and approach to, this litigation - further directions from the Court will go a long way to fashion reasonable expectations and timelines which should greatly increase the likelihood that the proceeding can be heard relatively quickly (even if the Province wishes to file a separate Notice of Application in Court to argue its “counterclaim”). I appreciate that Mr. Belliveau suggested that if disclosure could be completed within one month, discoveries could be completed in three months as all the witnesses were local; Mr. Garland later suggested eight months would be required to finish discoveries after disclosure was completed;
c - The length of the hearing cannot be predicted with great certainty at this juncture, but its content is predictable since the controversies (i.e. the nature of the legal issues and expected evidence) are well defined in the pleadings/information filed to date and, at the Motion for Directions yet to be heard, the parties will not doubt assist the Court in more precisely estimating the expected length of the hearing;
d - credibility can be assessed satisfactorily by considering the whole of the evidence to be presented at the hearing (which by leave of the court could exceptionally include viva voce direct evidence, e.g. for experts whose evidence would best be understood explaining their opinions using demonstrative evidence). The weight to be given to the expert opinion evidence will likely be fundamental to the determination of most, if not all, of the identified issues in the proceeding, and cross-examination is a potent tool to test the strength of their opinions.
[68] Regarding CPR 6.02(6) - I note that the Respondents have the burden ultimately pursuant to CPR 6.02(2) to satisfy the Court of its position. I also accept that I must compare “the new application with the newly streamlined action” per Moir, J., at para. 13 in Guest. Nevertheless, the relatively greater cost and delay of an action/trial is a significantly more likely risk than not in this case. The Application in Court process is designed to be a more customized and court driven process, which generally, and specifically in this case, will provide the necessary structure that will tend to ensure that the application will proceed in a quicker and less expensive manner than an action [in spite of the option for structure that case management gives in the case of actions CPR 26.02].
[69] As I alluded to earlier, I infer that both Applicants and Respondents have already had significant communications with expert witnesses, given that the controversy was identified as early as 2009; that the positions that each party group would take, at a hearing/trial, are demonstrated by the sophisticated nature of the pleadings to date, and the reality that the ultimate success of this proceeding revolves very much around expert opinion.
[70] Of particular concern is the Respondents’ lack of identification of any expert witnesses, and their reference to “unidentified witnesses” regarding “whether there is copyright protection in the Asserted Drawings,” and “factual/expert evidence relating to: ... ship design known circa 1920 - 21 and today ... the building ... past repairs and restorations of the Bluenose ... the building of the Bluenose II ... past repairs and restorations of the Bluenose II ...”
[71] Yet the Respondents in their witness list also identify William Greenlaw, Executive Director for the Archives Museums and Libraries, Nova Scotia Department of Communities, Culture and Heritage, and Rhonda Walker, Acting Director, Policy, Department of Communities, Culture and Heritage, as witnesses.
[72] Their Notice of Contest in that respect reads in part on p. 1:
Witnesses for the Respondents
The Respondents expect to produce affidavits from the following witnesses, dealing with the following subjects, as evidence when the application is heard:
|
Name of Witness |
Subject |
|
Bill Greenlaw and Rhonda Walker |
Factual evidence relating to: • the original design of the BLUENOSE II; • past restorations of the BLUENOSE II and public knowledge thereof; • the restoration project of the BLUENOSE II and the public knowledge thereof; • the Province’s rights in the name BLUENOSE and BLUENOSE II; and • the agreements between the Province and each of the Applicants that have been breached as a result of the commencement of this proceeding.
|
[73] And on p. 3:
|
Unidentified Witness(es) |
Factual/expert evidence relating to: • the features of ship design known circa 1920 - 1921 and today; • the building of the BLUENOSE in 1920 - 1921;• past repairs and restorations of the BLUENOSE and public knowledge thereof; • the building of the BLUENOSE II in 1963; and • past repairs and restorations of the BLUENOSE II and public knowledge thereof. |
|
Unidentified witness(es) |
Factual evidence relating to whether there is copyright protection in the Asserted Drawings. |
|
Expert Witness(es) |
Opinion evidence concerning: • the similarities and/or differences between the features in the Asserted Drawings and those known circa 1920 - 1921; • the functionality of the features of the Asserted Drawings; • the Asserted Drawings and the activities of the Respondents alleged in the Second Amended Notice of Application, including the differences between the features in the Asserted Drawings and the BLUENOSE II as restored or the documents prepared by Lengkeek; and • quantification of any alleged damages to the Applicants and any alleged profits to the Respondents as a result of the activities alleged in the Second Amended Notice of Application, including any non-infringing alternatives. |
[74] Rule 5.08 reads:
Notice of contest of application in court
5.08 (1) A respondent who wishes to contest an application in court must file a notice of contest no more than fifteen days after the day the respondent is notified of the application in accordance with Rule 31 ‑ Notice.
(2) A notice of contest for an application in court must be entitled “Notice of Contest (Application in Court)” and otherwise include everything required in a notice of application in chambers, except instead of a reference to an affidavit, it must identify the witnesses whose affidavit the respondent intends to file, identify all other possible witnesses known to the respondent not already identified by the applicant, and describe the subjects about which each identified witness could give evidence.
(3) The notice of contest of an application in court may be in Form 5.08.
[75] The obligation on the Respondents in its Notice of Contest is to identify the witnesses whose affidavit the Respondent intends to file, identify all other possible witnesses known to the Respondent not already identified by the Applicant, and describe the subjects about which each identified witness could give evidence.
[76] Their obligation is limited to disclosing what witnesses are known to the Respondent at the time of filing the Notice of Contest. The Rule provides no basis for listing unidentified lay or expert witnesses. While perhaps intended to be helpful, such general advisements are of very little value in a Motion for Directions and correspondingly so to me in this Motion to Convert where I struggle to appreciate the likely content and length of the hearing required to resolve the pleadings.
[77] I bear in mind that: (i) Mr. Greenlaw’s affidavit sworn “in support of the Respondents’ Motion to Convert ...” refers to the unidentified witnesses at para. 8:
8. The Respondents have commenced investigations to identify and locate the unidentified witnesses referenced on page 3 of the Respondents’ Notice of Contest. However, it is unlikely that all of these witnesses will be identified and located quickly, including witnesses to provide the evidence relating to the building of the BLUENOSE in 1920 - 1921 and the building of the BLUENOSE II in 1963, and the past repairs and restorations of each of these vessels.
(ii) that at the hearing Mr. Garland identified Marius Lengkeek also as an anticipated witness who would give evidence to the effect that he designed the plans for the restored BLUENOSE II independently of the design plans of BLUENOSE and BLUENOSE II; and (iii) the contents of Kevin Graham’s affidavit sworn November 30, 2012, especially at paras. 4 and 8.
[78] The Applicants have filed with their Second Amended Notice of Application in Court the required affidavit of Mr. Belliveau per Rule 5.07(4).
[79] In it, he swore at para. 4 that:
(b) to the best of my knowledge at this time, the list of possible witnesses in the Notice of Application is complete;
. . .
(h) neither of the Applicants is aware of information that could significantly affect the estimate of time needed to prepare for the hearing or the length of the hearing itself.
[80] The list of witnesses in the Second Amended Notice of Application reads:
Witnesses for the Applicants
The Applicants expect to file affidavits from the following witnesses dealing with the following subjects:
|
Name of witness |
Subject |
|
Joan Roué |
Factual evidence concerning the Applicants’ intellectual property rights |
|
Lawrence Roué |
Factual evidence concerning the Applicants’ intellectual property rights. |
|
Experts |
Opinion evidence concerning the Applicants’ intellectual property rights. |
[81] The Applicants having also referred to unidentified witnesses, thus similarly provided little of value in that respect to deciding a Motion for Directions and correspondingly this Motion for Conversion.
[82] In summary, I conclude that the Applicants have underestimated the number of witnesses they will require, and that the Respondents have suggested by their representations (written and oral) a greater number of witnesses will be required than in my view are likely necessary. Moreover, in spite of the existence of this controversy since 2009, and the suggested complexity of the dispute, the Respondents have identified among their specific witness names in their Notice of Contest, Mr. Greenlaw and Ms. Walker. Their evidence is collateral to the core dispute here, as is that of Messrs. Kinley, Hutchinson, Croft and Daniels, who are all to give factual evidence of “the activities ... [of their Respondent employers] in the restoration project of Bluenose II.” Only Marius Lengkeek is listed as a witness to speak to the core dispute here. In spite of filing affidavits in support of this Motion, they have provided no further witness names therein. I find such lack of detail suggests that I should have less confidence in their generalized estimates: of the number of witnesses required; the complexity of the evidence likely to be presented; and the length of time required to complete a hearing to resolve the core issues in dispute.
[83] The burden of persuading me that an action is a preferable means of proceeding is on the Respondents.
[84] In my view, given the limitations that I face in assessing this Motion for Conversion at this time, I conclude that this Application in Court can be heard in eight days or less.
[85] While eight days seems a long time, I have kept in mind that, the Application in Court is akin to a summary trial which can be heard relatively quickly - and such a process will better achieve the object in Rule 1.01 of a “just speedy, and inexpensive determination” of this dispute. I keep in mind that the evidence of Lawrence Roué’s failing health/age, given his status as a party and a key witness, militates toward choosing the speedier means of proceedings to resolution.
[86] In summary, therefore, I conclude that neither proceeding is presumptively favoured in the circumstances as I have them before me, however, the factors in CPR 6.02(5) and (6) are collectively compelling to satisfy me that an Application in Court is the most appropriate manner of proceeding in this case.
The Motion to dismiss the overall tort of conspiracy claim (para. 35), the specific claims against MHPM (para. 10), the claim for relief regarding the Respondents’ use of the name “Bluenose” in para. (b)(v) of the Application and alternatively an Order for Particulars regarding the tort of conspiracy, and the alleged infringing activities of each of the Respondents
(i) Positions of the Parties
[87] The Respondents argue that I must set aside the identified claims/allegations as set out in the Notice of Application in Court because:
(i) under [the summary judgment on pleadings] Rule 13.03, assuming that all the facts stated in the pleadings can be proved, it is plain and obvious that the pleading in part at least discloses no reasonable cause of action; and
(ii) under the “abuse of process” Rule 88.02, the Respondents are also entitled to an order striking or amending a pleading by the Applicants that is found to constitute an abuse; alternatively
(iii) particulars of the pleadings ought to be provided to allow the Respondents to intelligently respond.
[88] On the other hand, the Applicants argue that:
(i) CPR 38.02 sets out the general principles of pleadings and that the Applicants may be considered to have complied therewith even if they may not have full knowledge of all material facts which will ultimately support that claim - as long as they have been diligent in their attempt to ascertain them;
(ii) there is simply no abuse by the Applicants here in all the circumstances; and
(iii) there is no proper basis for ordering particulars of the pleadings to be provided.
(ii) Why none of the Applicants’ pleadings should be struck and no particulars should be ordered as against the Applicants
[89] CPR 38.06 states:
Pleading grounds in an application
38.06 The following rules of pleading apply to a statement of grounds or notice of contest in an application and they are further to the rules of pleading provided in Rules 5.02 to 5.04, 5.07, and 5.08, of Rule 5 ‑ Application:
(a) the grounds must be stated in such a way that the relevance of each statement in an affidavit filed, or to be filed, by the party is apparent;
(b) a description of a person must not contain more personal information than is necessary to identify the person and show the person’s relationship to a claim or ground of contest.
[90] CPR 5.07(5) and 5.03(2)(b) require that a claim in a Notice of Application in Court includes:
a concise statement of the grounds for the order, including the material facts the applicant seeks to establish, and a reference to legislation or points of law relied on by the applicant.
(iii) The specifics of the Respondents’ and Applicants’ positions
[91] The Respondents argued in their written materials that the latest iteration of the Notice of Application is fundamentally flawed in its request for relief at paragraphs:
(a)(i) [A declaration that] the Respondents have individually or jointly infringed the Applicant, Joan Elizabeth Roué’s copyright in the Copyright Work, as defined below in para. 11, contrary to sections 27(1) and 27(2) of the Copyright Act; and
(a)(ii) the Respondents have individually or jointly infringed the Applicant, Lawrence James Roué’s moral rights in the Copyright Work as described below in para. 11, contrary to sections 14.1, 28.1 and 28.2 of the Copyright Act; and
(b)(v) [an injunction should issue because the Respondents are] using the name “Bluenose” or variations thereof to title, describe or deceptively misdescribe the new vessel launched September 29, 2012 (the “Vessel”);
and in the grounds of the Application at para. 10, which alleges that “MHPM Project Managers Inc. provided and continues to provide project management services for construction of the vessel,” and at para. 35 which the Respondents say alleges the tort of conspiracy.
(a) No tort of conspiracy is alleged
[92] The Respondents in their written materials argued that each of paras. (a)(i) and (a)(ii) in the relief requested, and para. 35 of the grounds should be struck out as disclosing no reasonable cause of action, and the words “individually or jointly” from all paragraphs because there are no material facts pleaded to support the claim that “the Respondents have co-ordinated and conspired together in order to reproduce substantial parts of the Bluenose II.” In oral argument, Mr. Graham withdrew the argument previously made at para. 94 of the Respondents’ Brief regarding the Applicants’ claimed improper use of “individually or jointly” references to the Respondents in the Notice of Application in Court.
[93] At para. 92 of their Brief, the Respondents complain about para. 35 of the grounds in the Application, and cite cases that set out the constituent elements of what they claim are [allegations of] “civil conspiracy or something akin to it,” made by the Applicants, and go on to argue that these are “bald and speculative allegations” and essentially a “fishing expedition” by the Applicants “devoid of material [supporting] facts.”
[94] In R. Baker Fisheries Ltd. v. Widrig, 2002 NSCA 82, Justice Saunders, writing for the Court, affirmed Justice Nunn’s decision to strike a Statement of Claim in which the plaintiffs had failed to plead the necessary elements of the tort of conspiracy. He was careful not to preclude outright the plaintiffs “from commencing a new proceeding” (at para. 24).
[95] In the case at Bar, with its distinct pleadings, the Applicants do not necessarily allege the tort of conspiracy - the use of the words “conspired together” is found in a claim made against each of the Respondents based on the allegation that they took a part in the restoration of the Bluenose II knowing that the Applicants objected to the restoration proceeding without their agreement based on their copyright claims. Mr. Belliveau, at the hearing herein, confirmed that the Applicants are not alleging the tort of conspiracy at this time.
[96] The Respondents herein rely on CAT Productions Ltd. v. Macedo (1984), 1 C.P.R. (3d) 517 (FCTD), to argue that since the Applicants have in this copyright infringement case argued “civil conspiracy or something very akin to it” [p. 520], the material facts to support the elements of the tort of conspiracy must be pleaded. That case is distinguishable as I find there is no allegation of the tort of conspiracy here, and in CAT Productions, the court accepted that the Defendants were justified in not filing a Defence at all until particulars were provided since “clearly the case may be categorized as one requiring the delivery of particulars before pleading ...” - p. 518.
[97] I do not view the allegation as a claim of a tort of conspiracy, but rather a factual characterization of the collective, yet knowing, dismissal by the Respondents of the existence of the Applicants’ claims, which are for copyright related infringements, not conspiracy. Therefore, since no “cause of action” herein is premised on the tort of conspiracy, it cannot be said that there is no reasonable cause of action regarding the tort of conspiracy.
(b) Why the Applicants’ claim to the name “Bluenose” should not be struck from the pleadings
[98] Next I turn to the Respondents’ argument that the court should strike para. (b)(v) on p. 3 of the Applicants’ Application in Court because “the Applicants do not assert any rights to the name Bluenose”, and “accordingly the pleadings do not include any factual or legal basis for the [injunctive] relief sought in paragraph (b)(v) [and] ...it is plain and obvious that the Applicants do not have a reasonable cause of action for the relief sought in paragraph (b)(v), and thus this paragraph ought to be struck.”
[99] The Respondents seek to strike a request for relief. The Applicants request from the Court:
(b) permanent retraint on the Respondents ... and in particular restricting the Respondents from:
. . .
(v) using the name “Bluenose” or variations thereof to title, describe or deceptively misdescribe the new vessel launched September 29, 2012 (the “Vessel”); ...
[100] The Respondents argue in their written materials that:
... the Applicants [in the pleading only assert] copyright and moral rights in the Asserted Drawings ... the Applicants do not assert any rights in the name Bluenose
[therefore] ... the pleadings do not include any factual or legal basis for the relief sought in paragraph (b)(v) ...
it is plain and obvious that the Applicants do not have a reasonable cause of action for the relief sought ... - paras. 87 - 90, Brief.
[101] As Respondents’ counsel put it in argument: “there is no copyright in a name.” Notably, however, under the definition of “work” in s. 2 of the Copyright Act we find:
“work” includes the title thereof when such title is original and distinctive;
[102] The “Asserted Drawings” are attached to the Second Amended Notice of Application in Court and contain not just the Drawings but the descriptions of what is shown thereon:
Bluenose - Design No. 17
These are the original lines from which Bluenose was built
Both bearing the signature: W. J. Roué.
[103] Given its history, the pleadings herein and the significant onus required to establish that a pleading is “clearly unsustainable”, I dismiss the Respondents’ Motion in this regard.
(c) Why the reference in para. 10 of the Application’s grounds to MHPM should not be struck
[104] As to para. 10 of the Applicants’ grounds regarding MHPM, the Respondents’ Notice of Contest at para. 7 denies the “first sentence” thereof which claims that MHPM “provided and continues to provide project management services for the construction of the vessel,” though the Respondents’ Notice of Contest at para. 17 seems at odds with that statement (i.e. “The Respondents admit that the Province has ... entered into contracts with the Respondents [including MHPM Project Managers Incorporated] ... in relation to the restoration project”).
[105] At para. 26 in their Reply Brief, the Respondents argue that the Notice of Application “is devoid of any material facts that support an allegation that MHPM has engaged in any activity constituting an infringement of the Applicants’ asserted rights.” Yet the Respondents admit that MHPM is contracted by the Province in relation to the restoration project of the Bluenose II, and MHPM is claimed by the Applicants to be part of a “consortium” [para. 9] and to have “provided and continues to provide project management services for the construction of” the restored Bluenose II. The Applicants go on to claim that: “The “project” involved both the destruction and reconstruction of the entire hull and other parts of the Bluenose II [para. 31]; and “further exact details of the work undertaken by each member of the consortium is known only by the Respondents and each of them” [para. 33]; and “by reconstructing the schooner Bluenose II, the artistic work embodied in the Copyright Work has been reproduced or substantially reproduced by the Respondents both individually and jointly” [para. 34].
[106] Reading the entire pleadings, assuming the facts therein to be true, and bearing in mind: the test for striking pleadings as set out in CPR 13.03; the reality that drafting pleadings is not a science; and that if the material facts pleaded are to be assumed, then any reasonable inferences based on those facts should also prevail, I cannot conclude that the claim regarding MHPM is “clearly unsustainable.” I bear in mind that my finding in this regard is not a discretionary decision on my part - Innocente v. Canada (Attorney General), 2012 NSCA 36, at para. 23 per Fichaud, J.A.
(d) No particulars should be ordered regarding the precise roles of each Respondent in relation to the restoration of the Bluenose II
[107] As to the Respondents’ request for “particulars” of the alleged coordinated efforts of the Respondents, in their own Notice of Contest, the Respondents took the position at para. 21 that the Applicants’ allegations were “bald and speculative” as to how each of the Respondents have “coordinated and conspired together to reproduce substantial parts of the Bluenose II” and “authorized any of the other Respondents.” Yet, at para. 17 of those same grounds, they stated:
In response to paras. 30 and 31 of the Applicants’ Grounds [“The Respondents both individually and jointly have participated in destruction of the Bluenose II and the reconstruction of the vessel.”], the Respondents admit that the Province has undertaken a project to restore the Bluenose II and entered into contracts with the Respondents [Lunenburg Shipyard], [MHPM] and [Lengkeek] in relation to the restoration project.
[108] Moreover, s. 3 of the Copyright Act defines “copyright” - “... in relation to a work, means the sole right [to do certain acts] ... and to authorize any such act.”
[109] At this stage of the proceeding, the Applicants will necessarily have a limited ability to provide more detailed pleadings and/or particulars regarding this aspect since more information is not likely presently known or knowable to them. Since the Respondents do not deny that they all have had some involvement in the restoration of the Bluenose II, their complaint must more precisely be that they object to the claim that they did “reproduce substantial parts of the Bluenose II.”
[110] An issue arose about whether the Applicants could, in law, rely on such reasons to avoid being required to provide further particulars concerning the roles of each Respondent in “the destruction of the Bluenose II and reconstruction of the vessel.”
[111] The Respondents argued in essence that, if the Applicants were not aware of the precise material facts underlying the claim that “the Respondents both individually and jointly have participated in destruction of the Bluenose II and reconstruction of the vessel,” then they should not make or not be permitted to make the claim - paras. 22 - 24, Reply Brief.
[112] The Applicants respond that they are unable to more precisely articulate the roles of each Respondent because that level of specificity is at present unknown to them, and unknowable as the information rests exclusively with the Respondents who have not willingly provided it to date - paras. 67 - 83, Brief.
[113] CPR 38.02 and 38.06 set out the relevant rules for pleadings in the case of a Notice of an Application in Court.
[114] In Twin Mountain Construction Ltd. v. Milne, 2003 NSCA 41, Justice Bateman for the Court noted, under the Nova Scotia Civil Procedure Rules (1972) that:
12 The necessity for particulars must be evaluated taking into account the nature of the action and the timing of the demand in the context of the Civil Procedure Rules as a whole. There are other Rules (for example Rules 18, 19 and 20) which can be utilized by the appellants to discover the underlying details of the damage claim.
[115] While those comments were made under the old Rule 14.24, and in relation to a demand for greater particulars of general damages, I consider the tenor of her comments applicable in a case such as at Bar as well.
[116] I note that under the new Rules, CPR 38.07(3)(b) refers to “the particulars of a claim for damages other than referred to in Rule 38.07(3)(a), but not the amount the party seeks.”
[117] Most significantly, each case will have its own factual matrix.
[118] Resort to the underlying bases for the remedy of particulars, will cast the most light on the strength of the arguments for and against an order for particulars in the case at Bar.
[119] The function of particulars has been said to have at least 4 purposes at the pleading stage [CPR 38.02 and 38.06]:
i - to inform the other party(ies) of the nature of the case so they understand the basic complaint(s);
ii - to limit the generality of the pleadings such that they are precise enough to enable a meaningful response at hearing, and ensure that all parties/court have the same understanding of the basic complaints and responses;
iii - to outline the issues which will require resolution, so that the other party(ies) basically appreciate what pre-hearing procedures they should engage to enable a meaningful response at hearing and in applications in court specifically;
iv - to make apparent to all concerned the relevance of each statement in an affidavit filed or to be filed by the party in question.
[120] There seems to be an inherent unfairness in demanding that the Applicants provide greater particulars in this case where:
- they do not know, after diligent efforts to obtain same from the Respondents, any greater particulars - and the motion for directions herein has not been heard (including the ordering of disclosure/discovery dates), as it remains outstanding pending the decision whether to convert this application to an action;
- if the particulars are not available until after disclosure, and/or discovery, it is unlikely that the Respondents will be prejudiced thereby in responding to the claims of the Applicants which have been otherwise extensively outlined in the Notice of Application;
[121] Although not directly on point, recent cases bear out this sentiment:
- see Justice Fichaud’s comments in Casey v. Halifax Regional Municipality, 2011 NSCA 69 [the appeal was abandoned thereafter] at paras. 31 and 32. As he put it at para 16:
16 The issue on the appeal is whether HRM and Ms. Bonang, current applicants for summary judgment, should provide to Mr. Casey Affidavits Disclosing Documents under the Rules before the hearing of their summary judgment motion. ...
[122] Justice Fichaud concluded, in the context of a stay motion pending the appeal by HRM, that a stay of the obligation on HRM to file affidavits disclosing documents was not warranted. Having pursued a motion for summary judgment on evidence, HRM could not then refuse to provide disclosure to Casey until after the hearing of the motion - “... proper disclosure is necessary for his response to the summary judgment motion” - para. 27.
[123] While the context is different, the upshot is that, as here, it is generally unfair that a party should on the one hand deprive the other party of the means to provide an answer, yet on the other hand insist on that answer - see also para. 46 in Penwell v. Harwood, 2011 NSSC 309; Halifax (Regional Municipality Pension Committee) v. State Street Bank, 2012 NSSC 160, per Duncan, J.
[124] The onus is on the Respondents to satisfy the Court that they cannot meaningfully plead in response, and defend against the Applicants’ claims unless and until they have the sought after particulars.
[125] I reject the Respondents’ position that particulars must be ordered here, and therefore I also conclude that there is no abuse of process either.
(e) Why no further particulars should be ordered regarding MHPM’s involvement
[126] Alternatively, if the references to MHPM are not struck as unsustainable pleadings, the Respondents demand particulars of these various allegations above-noted - see CPR 38.10.
[127] In their Notice of Contest, the Respondents list under witnesses anticipated at the hearing of the Application: “Simon Daniels - if MHPM Project Managers Inc. is not struck as a Respondent, factual evidence relating to the activities of MHPM Project Managers Inc. in the restoration project of the Bluenose II.”
[128] Rule 38.10(2) allows a party to “give an answer by referring to evidence in an affidavit.”
[129] In the Respondents’ written submissions, Joan Roué’s affidavit sworn January 9, 2013, has been contested as largely inadmissible - see the Respondents’ Reply Brief, paras. 2 - 5. In oral argument, Mr. Garland retreated from that strict position and was prepared to have the court consider her affidavit for the generalized facts contained therein, provided it was not used to establish that the new vessel is a “replica” of the Bluenose.
[130] In any event, I will briefly examine their position.
[131] The Respondents argue that paras. 5 - 18 and Exhibits “A” to “N” are inadmissible because, in violation of CPR 39.02, 39.04 and 22.15, they:
i - do not identify the source of the information;
ii - are not sworn to as believed to be true by the affiant;
iii - do not provide “any details of where, when, or how the copies [in the Exhibits] were obtained.”
[132] Joan Roué’s affidavit states at para. 4:
4. The Applicants’ awareness of the details regarding the individual or collective activities of the Corporate Respondents in this matter with regard to the Project, as that term is described in the Second Amended Notice of Application in Court, has been obtained through the Applicants’ monitoring of media coverage of the Project, of the Province’s public announcements of the Project and of the public statements of other Respondents regarding the Project.
[133] The remaining paragraphs thereof and Exhibits either refer to, or are copies of, publicly available publications by the Respondents, or recognized media generated news articles.
[134] She states at paras. 19 - 21 that she has made concerted, consistent efforts to obtain relevant information regarding the Project, yet they were “all to no avail as the Province stalled and delayed providing any meaningful information to the Applicants.” She was not cross-examined on her affidavit.
[135] CPR 5.13 is relevant to the admissibility of her affidavit because it sets the standard for use of her affidavit on the application. It reads:
Rules of evidence on an application
5.13 The rules of evidence, including the rules about hearsay, apply on the hearing of an application and to affidavits filed for the hearing except a judge may, in an ex parte application, accept hearsay presented by affidavit prepared in accordance with Rule 39 ‑ Affidavit.
[emphasis added]
[136] CPR 22.15 is specifically relevant to the evidence permissible on the hearing of motions.
[137] It similarly reads (in part):
Rules of evidence on a motion
22.15 (1) The rules of evidence apply to the hearing of a motion, including the affidavits, unless these Rules or legislation provides otherwise.
(2) Hearsay not excepted from the rule of evidence excluding hearsay may be offered on any of the following motions:
. . .
(c) a motion to determine a procedural right;
. . .
(3) A party presenting hearsay must establish the source, and the witness’ belief, of the information.
(4) A judge, ... may act on representations of fact that cannot reasonably be contested.
[138] Does Joan Roué’s affidavit contain inadmissible hearsay? It does not, in my opinion.
[139] The precise purpose of her citing all those publicly made comments is not clear - it could be for the individual truth of those statements (i.e. in paras. 12 and 16 that MHPM are the project managers for the Bluenose II restorations) or to support her position that collectively they have been her only readily accessible source of information in spite of her diligence to obtain that information for inclusion in her pleadings.
[140] Specifically, then in relation to the Respondents’ argument, should the Applicants be ordered to provide particulars of MHPM’s involvement in the Bluenose II restoration project?
[141] Joan Roué’s affidavit answers that to the extent that she can at this early stage of the proceeding, given her evidence of unrewarded diligence in seeking the information directly from the Respondents, and since the motions are in part intended to “determine a procedural right” - Milburn v. Growthworks Canadian Fund Ltd., 2011 NSSC 346, paras. 37 - 45.
[142] Those portions of her affidavit are admissible for this purpose. Moreover, taken together with the wording of the Notice of Application in Court and the fact that no disclosure/discovery dates have been set, I reject the Respondents’ position that the references to MHPM, in the pleadings of the Applicants, should be more particularized at this time.
Conclusion
[143] Each of the Respondents’ Motions herein are dismissed. The matter occupied a full day of court and per Rule 77.05 and Tariff “C”, such full day motions attract $2,000.00 costs. I so order as just and appropriate to be paid in any event of the cause and forthwith.
Rosinski, J.