Cite as: Waverley (Village) v. Nova Scotia (Municipal Affairs), 1993 NSSC 71 I U THE SUPREME COURT OF UOVA SCOTIA
TEE VIYJLGE C O m I S S I O t i E R S OF WAVERLEY, a body corporate, ROB BROWN, UARILYN CLARKE, COLIN CLARKE, GERRY DAVIES, DON DAY, HAROLD D I W N , CAROL DUPFUS, DWPUS, ROSLYN DUPPUS, LARRY P E m E ANNABY, UIKE EARTLEN, PETER HILCHIE, SHEILA KEIZER, PAUL KEIZER, WULOLM KIRK, ROSEMARY KUTTNER, KEITH LARDNER, LOEUGHURST, BOB UCDOKALD, DON WCDONALD, C L I F F MILLIGAN, HAROLD KESBITT, CBARCES S C W E R , DANA SCXAFER, STEVENS, BETTY ANN STEVENS, RITA TRACEY, ROY TRACEY - and -TEE HONOURABLE GREG KERR, Acting Minister of Municipal Affairs, THE ATTORNEY GENERAL OF NOVA SCOTIA representing Her Majesty the Queen in Right of the Province of Nova ~cotia D E C I S S.H. No. 83964 RICEARD CLARKE, ALAN GUIIBLEY, MAXIBE EAUNABY, BRUCE KEEVIL, MAUREEN KIRK, RON LINDALA, CLAIRE MACKEY, PAT EULCKEY, BUD WENDY NESBITT, UARGO SOLLOWS, ELDON W A m STOBO, NANCY STOBO, RESPONDENTS (APPLICAISTS ) APPLICANTS (RESPONDENTS) I O N
1992 I N THE SUP- COURT OF NOVA SCOTIA BETWEEN: THE VILLAGE C O U M I S S I O ~O F WAVERLEY, a body corporate, ROB BROIA, MLRILYN CLARKE, COLIN CLARKE, OERRP DAVIES, DON DAY, HAROLD DILLON, DUFPUS, ROSLYN DUPPUS, LARRY P m EANXABY, HIKE HARTLEN, S H E I L A KEIZER, PAUL KEIZER, ROSEMARY RUTTMER, KEITH LARDNER, LOEtlGHURST, BOB UCDONALD, DON )(CDOl9ALD, CLIFF UILLIGAN, EAROLD WZSBITT, CHARLES SCEAPER, DANA SCEAPER, STEVENS, BETTY ABN STEVENS, R I T A TRACEY, ROY TRACEY - and -TEE HONOURABLE GREG KERR, Acting Minister of Municipal Affairs, THE ATTORNEY GENERAL OF NOVA SCOTIA representing Her Majesty the Queen in Right of the Province of Nova Scotia D E C I BEARD BEFORE: The Honourable M r . Justice John M. Davison PLACE HEARD: Halifax, Nova Scotia DATE HEARD: March 2 4 , 1993 DECISION DATE: April 1, 1993 COUNSEL: Paul Miller, ( applicants ) Reinhold M. Endres, Q.C. for the applicants
(respondents)
s.H. No. 83964 RICHARD CLARKE, CAROL DUFFUS, AIAN GUMBLEY, HAXIETE EANNABY, PETER HILCHIE, BRUCE KEEVIL, W C O L M KIRK, UAUREEN KIRK, RON LINDALA, CLAIRE UACKEY, PAT UACKEY, BUD WENDY ETESBITT, MLRGO SOLLOWS, ELDON WAYHE STOBO, NANCY STOBO, RESPONDENTS (APPLICANTS) APPLICANTS (RESPONDENTS ) S I O N Q.C. for the respondent
S.H. No. 83964 IN THE SUPREWE COURT OF NOVA SCOTIA BETWEEN : THE VILLAGE CO).O(ISSIOIYERS OF HAVERLEY, a body corporate, ROB BROWN, MARILYN CLARKE, COLIN CLARKE, RICEAlU CLARKE, GERM DAVIES, DON DAY, BAROLD D I U O N , CAROL DUFPUS, A U N DUFPUS, ROSLYN DUFFUS, LRRRY GUHBLEY, MAXINE IUUlIAEY, PElWP EMHABY, HIKE EARTLEN, PETER HILCHIE, BRUCE KEEVIL, SHEILA KEIZER, PAUL KEIZER, W O L M KIRK, lULUREEN KIRK, ROSEXARY KUTTNER, KEITH LRRONER, RON LIWALA, -RE LOEHGHURST, BOB HCDOMALD, DOH MWXEY, PAT )(ACXEY, BUD HCDONAID, a I P F H I U I ~ , HAROLD IYESBITT, WEMDY MESBITT, CHARLES SCBAPER, DANA SCHAPER, M O O SOLLOWS, ELDOH STEVEHS, BETTY AUN STEVENS, HA= STOBO, NANCY STOBO, RITA TRACEY, ROY TRACEY RESPOWEHTS (APPLICAmS) - and -THE HONOURRBLE GREG XERR, Acting Minister of Municipal Affairs, THE ATTORNEY GENERAL OF NOVA SCOTIA representing Her Majesty the Queen in Right of the Province of Nova Scotia D a v i s o n , J . By an originating notice (application inter partes) filed with the court on October 2 , 1 9 9 2 , the respondents (applicants), which are referred to herein as the "applicants", gave notice of their intention to make application for an order in the nature of certiorari setting aside a prescription made by the Honourable Greg
Kerr, as the acting minister of Municipal Affairs, on August 26,
1992. The prescription or exemption was made pursuant to s. 123
(9) of the Planning Act R.S.N.S. 1989, c.346. Section 123 deals
with matters relevant to the Halifax-Dartmouth Metropolitan
Regional Development Plan including its content and the
requirements for regional development permits. The power of the
ministerto exempt areas from the plan arises from s. 123 (9) which
reads: "(9) The Minister may prescribe for the area to which the Regional Development Plan applies or any part or parts thereof developments for which no permit shall be required. " The reasons .for the relief requested are set forth in the
originating notice (application inter partes) as follows:
"(1) The Honourable Greg Kerr exceeded his jurisdiction
by granting a prescription purporting to exempt a rock
quarry, rock crushing and extractive facility from the
requirement to obtain a municipal development permit
which prescription is not authorized by s. 123 of the
Planning Act, R.S.N.S. 1989, c. 346;
(2) The Honourable Greg Kerr exceeded his jurisdiction
in that he improperly exercised his discretion by basing
it on improper considerations not related to proper
planning principles and/or did not take into account all
relevant consideration;
(3) The Honourable Greg Kerr exceeded his jurisdiction
by granting a prescription of a type that is ultra vires
and not authorized by s. 123 of the Planning Act R.S.N.S.
1989, c. 346;
(4) The Honourable Greg Kerr erred in law by
misinterpreting Subsection 9 of s. 123 of the Planning
Act R.S.N.S. 1989, c. 346 and the powers conferred upon
him;
( 5 ) The Honourable Greg Kerr owed a duty to proceed with fairness in granting the prescription which required him to give reasonable notice to some or all of the applicants as well as a fair opportunity to be heard before deciding whether to grant the prescription. He breached this duty of fairness by making his decision without giving some or all of the Applicants reasonable notice and an opportunity to be heard. In the alternative, the Applicants seek a declaration
that the above-noted prescription is ultra vires, null
and void, and of no force and effect."
Since 1981 Tidewater Construction Company Limited has been
attempting to establish a rock quarry on its property on Rocky Lake
Drive and these efforts have been consistently opposed by The
Village Commissioners of Waverley and their predecessor.
In December of 1986 a permit was issued to ~idewateru nder the
Environmental Protection Act following a public environmental
control council hearing, a review by an environmental standards
committee and certain judicial proceedings. Shortly before the
environmental permit was issued the regional development plan was
amended to address concerns over truck traffic generated by another
quarry and this amendment, which was effected by an addition to
regulation 29A precluded the issuance of any further development
permits for rock quarries in Waverley.
In November of 1987 Tidewater commenced an action against the
Province of Nova Scotia and others challenging the amendment to the
regional development plan. This action was settled by agreement
and discontinued in 1992.
By an order in council dated the 25th day of August, 1992
regulation 29A was repealed. Policy 4(D) was amended by adding:
"An industrial use for the extraction of sand, gravel and rock deposits may be located outside the development boundary in areas where the resource exists provided that the use is located on a lot with a minimum size of 200 acres. " The order in council also added the following regulation:
"27B Notwithstanding any other provision of these
regulations, a regional development permit may be issued
for an industrial use for the extraction of sand, gravel
and rock deposits on a lot which has a minimum size of
200 acres."
On August 26, 1992 the acting minister of municipal affairs
issued the impugned exemption which reads as follows:
"No regional development permit or municipal development permit is required for a development, within the Ealifax- Dartmouth Metropolitan Planning Region of the Ealifax- Dartmouth Metropolitan Regional Development Plan and outside the development boundary of the aforementioned Plan, of a rock-quarry, a rock crushing, or extractive facility for which a permit was issued pursuant to the Environmental Protection Act, prior to the 20th day of August, 1992 ; including associated buildings, aggregate plants, material storage areas, weigh scales and facilities for production of asphalt and concrete." The effect of this prescription was to remove the requirement of
Tidewater to obtain a regional or municipal development permit.
By an interlocutory notice (application inter partes) the
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respondents gave notice of an application for an order striking the
proceedings on the basis that the applicants "are not aggrieved and
therefore have no standing to bring an application in the nature of
certiorari, or to seek a declaratory judgment". In response t o this
application, the applicants filed 26 separate affidavits of
residents of the Village of Waverley. The applicants had also
served notices of examination for discovery on Mr. Greg Kerr, the
acting minister, Ronald Simpson, director of planning of the
department of municipal affairs and Dan Hiltz, the manager of
industrial pollution control of the department of environment.
The respondents now make application for an order to strike the
affidavits as being "irrelevant, frivolous, vexatious" and
prejudicial to a fair trial and also make application to dismiss the
notices of examination for discovery. These applications came on
before me. The main proceeding for relief by way of certiorari
together with the question of standing will be heard by a judge of
this court at a subsequent date.
APPLICATION TO STRIKE AFFIDAVITS
The affidavits filed on behalf of the applicants are replete
with expressions of opinions which touch on and relate to a history
of the project, environmental factors, traffic issues and various
legal issues. Most give no indication whether the information is
based on personal knowledge or information and belief. Some make
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reference to matters based on information but the source of the
information is not stipulated nor is .the belief of the af fiants
stipulated in the affidavit.
An affidavit should be confined to facts of which the affiant
has personal knowledge except on an application where the affiant
can give evidence based on information and belief if he states the
source of the belief and the grounds of the belief. Civil Procedure
Rule 38.02 reads:
"(1) An affidavit used on an application may contain
statements as to belief of the deponent with the sources
and grounds thereof.
(2) Unless the court otherwise orders, an affidavit used
on a trial shall contain only such facts as the deponent
is able of his own knowledge to prove."
A similar rule is contained in the English rules except that
the words "interlocutory proceedings" are used instead of
"application".
Great care should be exercised in drafting affidavits. Both
pleadings and affidavits should contain facts but there are marked
differences between the two types of documents. Affidavits, unlike
pleadings, form the evidence which go before the court and are
subject to the rules of evidence to permit the court to find facts
from that evidence. They should be drafted with the same-respect
for accuracy and the rules of evidence as is exercised in the giving
of viva voce testimony.
Too often affidavits are submitted before the court which
consist of rambling narratives. Some are opinions and inadmissable
as evidence to determine the issues before the court. In my
respectful view the type of affidavits which are being attacked in
this proceeding are all too common in proceedings before our court
and it would appear the concerns I express are shared by judges in
other provinces. In particular I refer to the words of Mr. Justice
McQuaid in Trainor v Trainor (1990), 87 Nfld. 6 P.E.I.R. 37 at 39: "This case also provides an opportunity for consideration
of one other aspect of the materials now before it. The
aspect in question, is, unfortunately, not unique to this
case, but is one which has become more pervasive in
recent times, that is to say, the provision of written
material, supportive of one's position, in the form of
long, rambling, narrative affidavits, often including the
deponent's personal opinions on a wide variety of
matters, hearsay, as well as the deponent's
interpretation of his rights under the law.
Such documents have little, if any, probative value, and
are generally accorded the weight whlch they deserve.
The old Rules of Court, Order 38, rule 4, contained the
following provision:
"Affidavits shall be confined to such facts as
the witness is able of his own knowledge to
prove, except on interlocutory proceedings in
which statements is to his belief, with the
grounds thereof, may be admitted."
The current English Rule, Order 45, rule 5 is of much the
same tenor, but the commentary provides that where an
affidavit is grounded on information or belief, the
deponent must identify, specifically, the source of the
information and belief, so that, if necessary, that
person may be called as a witness. The "best evidence"
rule requires either that the source of the information
be called as witness, and subject to cross-examination,
or alternatively, why the person with personal knowledge
could not be called. (See Stevenson and Cote, Civil
Procedure Guide, 1989, pp. 724/725).
The purposes of an affidavit presented to the court is
not to provide a forum for the deponent to express his
opinion on all matters, however so remote, touching the
issue before the court, but rather to place before the
court, in concise and succinct form, only those facts
which he, or a source witness who may be called by him,
is able, and willing, to prove by sworn viva voce
testimony.
It should be clearly understood that these comments are
not directed towards counsel in this case, or indeed, and
counsel in particular. They are simply directed towards
an increasing tendency for the filing of page after page
of unsupported, and, it might be suspected, frequently
unsupportable, allegations and averments. They are,
generally speaking, of little use to the court, and
regarded by it in equal degree."
Although affidavits used in applications such as the
proceeding that is presently before the court can be based on
information and belief, the source of the belief must be
specifically identified and the source should be the original
source of the information. In Savings and Investment Bank
Ltd. v Gasco et al., [I9841 1 All E.R. 296 (Ch. D.) Gibson,
L.J. spoke about second hand hearsay and affidavits at page
305:
"Further I find it impossible to accept counsel for SIB'S
submission that it is sufficient in order to comply with
r 5(2) that the deponent should identify only the source
to him of his information even though it is clear that
that source was not the original source. Thus, if the
deponent was informed of a fact by A, whom the deponent
knows not to have firsthand knowledge of the fact but who
had obtained the information from B, I cannot believe
that it is sufficient for the deponent to identify A as the source of the information. That, to my mind, would largely defeat the requirement that the sources and grounds should be stated and would make it only too easy to introduce prejudicial material without revealing the original source of hearsay information by the expedient of procuring as the deponent a person who receives information second hand. By having to reveal such original source and not merely the immediate source, the deponent affords a proper opportunity to another party to challenge and counter such evidence, as well as enabling the court to assess the weight to be attributed to such evidence. " Mr. Justice Chipman in Weldon v Kavanagh and Pormac Publishing
Co. (1989), 94 N.S.R. (2d) 181 (N.S.C.A.) in speaking of rule 38.02
had this to say at page 185:
"In Williston and Rolls, The Law of Civil Procedure,
Volume 1, the authors state at p. 486:
"Affidavits must be confined to the statement
of facts within the knowledge of the deponent,
but, on interlocutory motions, statements as
to his belief, with the grounds therefor, may
be admitted. Hearsay evidence or any evidence
not within the personal knowledge of the
deponent must be rejected if used in support
of an originating motion. An affidavit sworn
on information and belief is only receivable
in interlocutory proceedings, and the deponent
must state the source of his information and
swear to his belief in it. If this is not
done, the offending portion should be entirely
disregarded."
I agree. The affidavits in question do not indicate
what, if any, witnesses will be called or where they may
come from. The only statement is that Formac's employees
"including any persons which may be called" all reside in
Halifax County. No grounds upon which the beliefs
expressed in these affidavits have been provided. In my
view these affidavits, being the only material offered in
support of the application, fail to furnish any
information upon which Nunn, J., could have exercised his
discretion to grant an order changing the venue.
In passing, I emphasize that the Civil Procedure Rules
were enacted with the intention that their provisions be
observed. The object of the Rules is "to secure the
just, speedy an (sic) inexpensive determination of every
proceeding" (rule 1.03). Failure to adhere to the Rules
almost invariably operates to defeat this objective. I
respectfully submit that judicial resources are
sufficiently scarce that the time of the court should not
be taken up with applications supported by defective
documentation. If the proper material required to
support an application exists, it is not too much to ask
that counsel provide it."
The respondents refer to two cases where the court took a firm
view with respect to the use to be made of affidavits which fail to
conform with the rules. In Lawrence Square Ltd. v Pape et al.
(1978), 6 C.P.C. 51 (Ont. E.C.) the court stated at page 52:
"It will be observed that Mr. Makriyiannis [the deponent] failed to give the grounds for the beliefs which he has stated in paras. 22 and 23 of his affidavit. The : provisions of R. 292 are explicit, and in face of an irresularitv: see Re Indust. Accept. Corpn. and
Codssioner of Excise, [I9361 O.W.N. 493; Russell v.
Niagara, St. Catharines & Toronto Ry ., [ 1945 ] 0.W. N. 347 ;
Inducon Const. (Eastern) Ltd. v. Vaupere, [I9671 1 O.R.
245. [emphasis added]"
In Air Canada et al. v naley et al. (1976), 69 D.L.R. (3d) 180,
Mr. Justice Addy of the Federal Court stated at page 181:
"Counsel for the plaintiffs did not object to these
particular assertions, but I must say that to this Court
they are not acceptable in evidence. It is elementary
law of evidence that such assertions are not acceptable
and, therefore, in so far as they do not give the source of the information and belief, and the particulars on which the belief is founded, thev are to be totallv and comvleted rejected as if thev did not exist. [emphasis added]" The impugned affidavit was further criticized by the court on
page 181:
"The affidavit of the defendant Maley is filled with
general assertions of incidents, and the affidavits of
others are also filled with these assertions which he
claims occurred without giving details as to time, place,
hour and the names of persons involved or any other such
information."
It would helpful to segregate principles which are apparent
from consideration of the foregoing .authorities and I would
enumerate these principles as follows:
1. Affidavits should be confined to facts. There is no place in
affidavits for speculation or inadmissable material. An affidavit
should not take on the flavour of a plea or a summation.
2. The facts should be, for the most part, based on the personal
knowledge of the affiant with the exception being an affidavit used
in an application. Affidavits should stipulate at the outset that
the affiant has personal knowledge of the matters deposed to except
where stated to be based on information and belief.
3. Affidavits used in applications may refer to facts based on
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information and belief but the source of the information should be
referred to in the affidavit. It is insufficient to say simply that
"I am advised".
4. The information as to the source must be sufficient to permit
the court to conclude that the information comes from a sound source
and preferably the original source.
5 . The affidavit must state that the affiant believes the information received from the source. In our jurisdiction the opposing party has the right to cross-
examine any affidavit introduced in an application. (See Guptill
v Guptill (1987), 82 N.S.R. (2d) 390.) This affords another good
reason why care should be exercised in drafting affidavits. It is
also clear that solicitors should not be the affiants on affidavits
dealing with substantive matters not only because it would offend
the best evidence rule but also because it would place the solicitor
in jeopardy of being cross-examined which would possibly require him
to withdraw from the proceedings.
There is no question that the affidavits filed by the
applicants offend many of the principles set out herein. To the
extent that they purport to relate to matters of planning, law and
the environment, they are irrelevant and should not be received for
that reason. However the solicitor for the applicants stated that
the affidavits have only been filed in response to the motion by the
respondents to strike for want of standing. The respondents had
filed a written memoranda in support of the application to strike
the certiorari application on the grounds of lack of standing in
which they allege the applicants "have not claimed and do not have
a direct, or personal interest" in the impugned prescription. In
making his point in its written submission that the applicants do
not have standing because they are not directly affected or have a
genuine interest in the matter decided by the minister, the
respondents' argument was framed as follows:
"We know nothing about the many applicants, or their
interests in the matter. We know nothing about how the
Minister's decision affects one or the other applicant.
Displeasure with the Minister's decision alone does not
support legal process. There is only one affidavit in
support of the application, the Lockhart affidavit which
appears to speak for the Village of Waverley. Lockhart
himself is not a party.
There's is nothing before the court in support of the
application except for Waverley, and Waverley would (not)
be directly affected by the Minister's decision..."
It was in response to these allegations that the applicants
filed the additional affidavits. If there are portions in the
affidavits which support or tend to support the position of the
applicants on the issue of standing, those portions should be
permitted to go before the judge who determines that issue. The
extent, if any, to which the allegations support the standing and
the weight to be given to the affidavits would be a matter for the
- 14 judge who will be determining that issue.
The solicitor for the respondent very forcibly argued against
the retention of any of the affidavits for any reason. He also took
the position that the affidavits should either be admitted or
rejected. It is clear that offending portions of affidavits can be
deleted and the rest retained. Reference is made to Gordon, Dixon,
Baillie and Uunroe v Mova Scotia Teachers' Union (1983), 59 N.S.R.
(2d) 124. Similarly affidavits can be retained for limited
purposes. The affidavits for the most part should be rejected
insofar as any attempt is made to use them to prove facts of an
environmental or planning nature but could be retained to the extent
that they illustrate that the affiants have a fear, concern or
belief. The fact which is being attested to in the affidavit is the
fact that they have such a fear, a concern or a belief which fact
may establish an interest in the proceedings sufficient to give
standing.
During the course of oral submissions I made the suggestion
that rather than having the applicants go to the expense of drafting
further affidavits, the court could declare the limited basis on
which the affidavit is to be received. I considered that approach
to be a pragmatic one which would not cause injustice to either
party. Judges are trained in rejecting information which is before
them for certain purposes and accepting that information for other
purposes. Such a situation occurs frequently in criminal cases
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where a judge sitting without a jury is required to enter into an
examination of the admissibility of evidence through a voir dire.
I expressed the view that a judge who hears the standing issue would
not be tainted by the fact that the affidavits contain information
which are irrelevant to the issue before him and that by stipulating
the limited purpose for which the affidavits are received a more
expeditious and less expensive result would be achieved.
Since the hearing I have had the opportunity of reviewing the
affidavits more extensively. Large portions of these affidavits
should be rejected as offending the principles to which I have
referred in these reasons. I have determined the affidavits should
be rejected in their entirety with the right to file other
affidavits for the sole purpose of attempting to establish facts on
the issue of standing..
Many of the affidavits of the citizens have similar paragraphs.
For the guidance of counsel should he wish to file other affidavits,
I will choose for illustration purposes, the joint affidavit of
Eldon and Betty Ann Stevens. A review of that affidavit indicates
paragraphs 8, 9 and 10 should be deleted along with the second
sentence in paragraph 4 and the second sentence in paragraph 6. The
rest of the affidavit could be received for the limited purpose of
assisting to establish standing. I emphasize that whether these
type of allegations do support standing will be solely for
determination by the judge who hears the motion to dismiss for lack
of standing.
The affidavit of William E. Lockhart sworn the 13th day of
February should be rejected in its entirety. It has no redeeming
features. Aside from the obvious comment that there is no basis for
stating the commission "has a belief" there is not a paragraph which
could be received in evidence. Questions of law are not facts.
Quite apart from the fact that the references to statements alleged
to have been made by Premier Donald Cameron and the Honourable
Kenneth Streatch are meaningless and vexatious, they have no
relevance to the question of standing. Counsel assured the court
the purpose of the affidavit was confined to the issue of standing.
APPLICATION TO STRIKE NOTICES OF DISCOVERY
The respondents have issued notices of examination for
discovery of the Eonourable Greg Kerr, acting minister of municipal
affairs, Ron Simpson, the director of planning for the department
of municipal affairs and Dan Hiltz, the manager of industrial
pollution control for the department of the environment. The
applicants move to strike these notices of examination for discovery
for the principal reason that these witnesses are employees of the
crown and not compellable to submit to examinations for discovery.
The Civil Procedure Rules governing conduct of proceedings in
the Supreme Court of Nova Scotia are as broad as the rules in any
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other province. For example Civil Procedure Rule 18.01 states:
"18.01. (1) Any person, who is within or without the
jurisdiction, may without an order be orally examined on
oath or affirmation by any party regarding any matter,
not privileged, that is relevant to the subject matter of
the proceeding."
Civil Procedure Rule 18.02 makes it clear that examinations for
discovery are available for applications in chambers as well as for
proceedings destined for trial. As a general comment I would
observe that examinations for discovery prior to chambers
applications should be used with restraint not only with a view to
curtailing costs of proceedings but also chambers applications for
the most part do not involve proceedings where there exists a
substantial dispute of fact. It is difficult to conceive of what
factual information can be made available in this proceeding for a
certiorari where the grounds are based on excessive jurisdiction,
breach of natural justice and an argument of ultra vires.
It is the position of the respondents that they wish to examine
by way of discovery the minister with a view to finding out the
"information and considerations which he took into account in
exercising his discretion to grant the prescription". I would
suggest that it would be undesirable to see a practice develop
whereby statutory decision makers are subject to examinations for
discovery for the purpose of establishing grounds to overturn the
decisions.
The main thrust of the argument on behalf of the respondents relates to compellability of employees or agents of the crown to attend on examinations for discovery. In Thornhill v Dartmouth Broadcasting Ltd. et al. (1981), 45 N.S.R. (2d) 1 1 1 Mr. Justice Burchell had for consideration the examination for discovery of two members of the Royal Canadian Mounted Police. The notice for examination for discovery required the officers to produce documents with respect to an investigation which involved a minister of the crown. The action was for defamation and the defendants took the position that the words "any person" in Civil Procedure Rule 18.01 were to be construed as an intention on the part of the legislature to make the crown subject to discovery under the Nova Scotia rules. This argument was rejected by Mr. Justice Burchell who found that at common law there existed no right of discovery against the crown or an officer or agent of the crown acting in his capacity as such officer or agent. Burchell, J. stated that s. 13 of the Interpretation Act, R.S.N.S. 1967, c. 151 provided "a complete answer" to the position advanced by the Defendants. That section reads: "13 No enactment is binding on Her Majesty or affects
Her Majesty or Her Majesty's rights or prerogatives in
any manner unless it is expressly stated therein that Her
Majesty is bound thereby."
The Proceedings against the Crown Act, R.S.N.S. 1967, c. 239
stipulates that in proceedings against the crown, the Civil
Procedure Rules including the rules relating to examinations for
discovery apply to the same extent as if the crown were a
corporation. This act only applies where the crown was a party to
the action. In the proceeding before me neither party is suggesting
that the Proceedings against the Crown Act has application. NO
other statute in Nova Scotia requires Her Majesty to submit to
discovery.
Mr. Justice Burchell referred to and relied upon Crombie v The
King (1922), 52 O.L.R. 72 wherein the court stated at page 77:
"As pointed out by Lord Watson in Ind Coope & Co. v. W r s o n (1887), 12 App. Cas. 300, 309, discovery is a
remedy as distinguished from a right, and so is a matter
of procedure proper to be dealt with by rules of
practice. And, if Rule 327 had.provided for examination
of officers of the Crown or had negatived the right to
examine, such express rule would have governed the
practice. But, though discovery is a.remedy merely, yet
none the less the right of the Crown to refuse discovery
is a matter of prerogative right: In re La Societe Les
Affreteurs Reunis and The Shipping Controller, [I9211 3
K.B. 1, following Tobin v. The Queen (1863), 32 L.J.C.P.
216, 14 C.B.N.S. 505.
The prerogatives of the Crown exist in British Colonies to the same extent as in the United Kingdom: Maritime Bank v . The Queen (1869), 17 Can. S.C.R. 657; Regina v. Bank of Nova Scotia (1885), 11 Can. S.C.R. 1. The cases of Attorney-General v. Newcaatlr-upon-Tyne Corporation, [I8971 2 Q.B. 384, and Thomas v. The Queen (1874), L.R. 10 Q.B. 44, make it plain that formerly, in proceedings by way of petition of right, the remedy of discovery did not exist as against the Crown; or, in other words, that the Crown had a prerogative right to refuse discovery. If a petitioner now has a right in Ontario to such discovely it must have arisen by virtue of our present Rules, and my best opinion is that such a new and important remedy as the examination of Deputy Ministers cannot, as against the Crown, be created or introduced by "analogy," and that the prerogative right of the Crown to refuse such discovery cannot be taken away by "analogy," but only by express words. I refer to the judgment of the Privy Council in Th6berge v Laudry (1876), 2 App.
Cas. 102, where it is s a i d a t p. 106: "Their Lordships wish t o s t a t e d i s t i n c t l y , t h a t t h e y do no t d e s i r e t o imply any doubt whatever a s t o t h e genera l p r i n c i p l e , t h a t t h e p r e r o g a t i v e of t h e Crown cannot be taken away except by express words; and they would be prepared t o hold, a s o f t e n has been he ld be fo re , t h a t i n any case where t h e p re roga t ive of t h e Crown has ex i s t ed , p r e c i s e words must be shewn t o t ake away t h a t p re roga t ive . " " I n Longo v The Queen, [I9591 O.W.N. 1 9 (Ont. , C . A . ) , Mr. J u s t i c e Laidlaw s t a t e d a t page 20: "The remedy of discovery a g a i n s t a Crown o f f i c e r w a s a new, important and far- reaching remedy. A d e c i s i o n of t h e Court t h a t such a remedy e x i s t e d under t h e Rules should n o t be based on t h e i n d i r e c t analogy of t h e Crown and a corpora t ion . I n t h e absence of an express p rov i s ion it should be held t h a t such a remedy d i d not e x i s t . " I n Attorney-General of Quebec and Keable v Attorney-General of Canada e t a l . ( 1978) , 90 D.L.R. (3d) 161 (S.C.C.) t h e i s s u e b e f o r e t h e Supreme Court of Canada involved l i m i t a t i o n s on t h e powers of a commissioner t o examine i n t o a l l eged i l l e g a l a c t i v i t i e s of p o l i c e f o r c e s i n Quebec and d e a l i n g s p e c i f i c a l l y wi th t h e commission's power t o subpoena t h e s o l i c i t o r - g e n e r a l of Canada, M r . J u s t i c e Pigeon sa id : "Such an i n q u i r y is r a t h e r i n t h e na tu re of a d iscovery and it seems t o be wel l e s t a b l i s h e d t h a t , a t common law, t h e Crown en joys a p re roga t ive a g a i n s t being compelled t o submit t o discovery."
In Re Associated Investors of Canada Ltd. (1988), 5 7 Alta. L.R. (2d) 289 Mr. Justice Kerans, speaking for the Alberta Court of Appeal, dealt at some length with the historical development of the
laws as it related to the "inununity" of crown agents to submit to
discovery. With apparent reluctance Kerans, J.A. concluded his
analyais at p. 302 as follows:
"...I consider myself bound to apply the rule that a
Crown agent cannot be compelled, in the absence of
statutory authority strictly construed, to submit to
discovery."
It is noteworthy that the judge distinguished between trial
testimony and discovery testimony because of the "broad ranging
naturen of discovery, the fact that issues are not usually' in focus
at the time of discovery and that the rules on discoveries are
interpreted in a liberal fashion as they relate to relevancy. In
dealing with the issue he referred to the Thornhill case as well as
Re Mulroney et al. and Coates et al.; Re Southham et al. and
Mulroney et al. (1986), 54 O.R. (2d) 353 (Ont. C.A.) which in turn
accepted the views of Burchell, J. in the Thornhill case. In
referring to the two decisions Kerans, J.A. restricted the ratio to
a finding that statutes do not bind the crown unless they do so
expressly.
The distinction between testimonial immunity and compellability
on discovery is important when one considers Carey v R. (1986), 35
- 22 -
D.L.R. (4d) 161 (S.C.C.) and Smallwood v Sparling, [1982] 2 S.C.R.
686. Both of these cases dealt with testimonial immunity including
the production of documents by subpoena duces tecum where the
immunity is claimed on the basis of public interest. That type of
testimonial immunity is subject to the discretion of the court but
there is no discretion in the court to overturn the crown's immunity
against discovery. In the absence of unequivocal language in a
statute the common law right of the crown to decline discovery
examination prevails.
The application to strike the notices of examination for
discovery is granted. If necessary, I will receive written argument
on costs when the order is submitted to me.
April 1, 1993
Halifax, Nova Scotia.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.