SUPREME COURT OF NOVA SCOTIA Citation: Nova Scotia (Attorney General) v. Mattatall, 2013 NSSC 184 Date: 20130228 Docket: Hfx No. 216653 Registry: Halifax Between: The Attorney General of Nova Scotia Plaintiff v. Scott David Mattatall and Pembridge Insurance Company of Canada Defendants Judge: The Honourable Justice John D. Murphy Heard: December 20, 2012 Written Decision: June 14, 2013 [oral decision rendered February 28, 2013] Counsel: Michael T. Pugsley and Ryan Brothers, for the plaintiff James L. Chipman, Q.C. and Shannon McEvenue (A/C), for the defendants By the Court: BACKGROUND [1] This motion was brought by the Plaintiff (who will sometimes be referred to as “the Crown”). The litigation arises from a motor vehicle accident which
Page: 2 happened in 2002, when the Defendant, Mr. Mattatall, collided with the Murdock Bridge which was owned and maintained by the Crown. The Plaintiff alleges that the impact caused a constructive bridge failure and seeks damages for the loss. The amount in issue after deferred maintenance and betterment adjustment, as indicated in one of the expert reports, is $161,000 approximately. There is no counterclaim. The Defendants elected trial by judge and jury, and trial is scheduled for seven or eight days in September of 2013. [2] The Plaintiff takes the position that Her Majesty the Queen is not subject to trial by jury on the basis of Crown immunity, and alternatively, maintains in this case the issues are too complex for a jury trial. The Plaintiff has brought this motion to strike the jury notice pursuant to Civil Procedure Rule 52. ISSUES [3] There are two issues. First, does the Plaintiff, the Crown, have immunity from a jury trial? And secondly, is the matter too complex to be determined by a jury, if the Crown does not have immunity? ANALYSIS - CROWN IMMUNITY [4] On the first issue, whether the Plaintiff has immunity from a jury trial, the Crown maintains that it has an absolute immunity from jury trials, whether the Crown is plaintiff or defendant. The Plaintiff says that such immunity arises both under the Proceedings Against the Crown Act, R.S.N.S. 1989, C.360, (which I may refer to as “the Act”), and also under a long-standing common law and statutorily-enshrined principle that legislation does not apply to the Crown’s prejudice unless it is specifically so stated. [5] Dealing first with the Act, the relevant section most at issue here is s.14 which says: In proceedings against the Crown the trial shall be without a jury. [6] The wording is “against the Crown.” There is no question that under that legislation in Nova Scotia, there is not a jury trial in a civil claim where the Crown is a defendant. If the Crown is a defendant by counterclaim or interpleader or there is claim by way of setoff, under s.2(f) of the Act trial by jury is also precluded.
Page: 3 [7] The Crown maintains that s.14 of the Act should be construed as meaning that there cannot be a jury trial even if the Crown is Plaintiff. As I understand the Crown’s argument, it is that the word “against” in s.14 should be construed as if it said ‘involving’, and that the section applies to litigation if the Crown is in an adversarial relationship, whether as plaintiff or as defendant. [8] On that point, I respectfully disagree with the Crown. Proceedings against the Crown are defined in s.2(f) of the Act, and I have referred to the general wording of the Act. In my view, if the legislature had intended the interpretation the Crown suggests, it would have said so in s.14 or provided a different, broader definition in s.2(f). [9] I am not aware of any authority supporting the Plaintiff’s position that “against the Crown” should be construed as ‘involving the Crown’, or as “applicable to any situation where the crown is in an adversarial relationship.” I refer to Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, which directs that words are to be read in the entire context, their grammatical and ordinary sense, harmoniously with the subject and object of the Act. In this case, the Act is entitled “An Act Respecting Proceedings Against the Crown” and there is no indication in other sections of the Act that the provisions are expected to be construed in a reciprocal fashion. For example, the injunction provision in s.16(2) is a one-way provision dealing with injunctions only against the Crown. [10] The Crown maintains that its position in the pleading should not govern whether it is subject to a jury trial, and that it would be inconsistent to allow a jury trial where the Crown is on one side and not the other. I acknowledge that does lead to an inconsistency, but that is the situation that the legislation has established and there is no basis for me to interpret it otherwise. [11] The Crown in its brief at pages 4 to 7 refers to a number of cases in which a Crown Proceedings Act, either the Nova Scotia statute or similar legislation, has been construed. In my view, they are distinguishable on the basis that in all of those cases the Crown’s position was either as a defendant or akin to a defendant, and not as a plaintiff. [12] The Plaintiff raised other points in the context of the Act. The Crown says, for example, there should not be a jury trial involving the Crown because there
Page: 4 cannot be a jury of peers of the Crown. I agree the Crown does not have peers, but we do have jury trials involving parties which are not peers to the jurors - for example, large corporate entities such as banks and insurance companies. There is no doctrine of deep pockets which affects whether a party can be subject to a jury trial. [13] The Crown also raises issues of possible bias against the Crown by jurors. Any suggestion that taxpayers might have difficulties with the Crown’s position is overwhelmed by the presumption that jurors are people who are impartial and unbiased. It is a very different context, I acknowledge, but we do have jurors in criminal cases and there is no suggestion in those cases that the Crown’s being a party generates any bias. [14] If there is a concern in principle or in policy about citizens in their role as jurors criticizing the sovereign, in my view that does not apply to the same extent where the Crown is a claimant. The Plaintiff is not being accused of improper conduct in this case, and citizens are not being asked to assess Crown behaviour, as it is a plaintiff and there is no counterclaim. [15] For those reasons, it is my view that the ordinary meaning of s.14 of the Act should be followed, that its effect is limited to situations where the proceeding is brought against the Crown, that it does not apply in this case, and there is no historical background to suggest that it should. I shall say more about historical background later, but I will move on at this stage to the second aspect of the Crown immunity issue, and that is whether the Motion to Strike the Jury Notice can succeed because the Crown is otherwise immune from a jury trial, outside the parameters of the Act. [16] The Plaintiff says that the legislation which provides for jury trials, the Judicature Act, R.S.N.S. 1989, c.240, and the Juries Act, Statutes N.S. 1998, c.16, are not applicable to the Crown. The Plaintiff also maintains that provisions with respect to jury in the Civil Procedure Rules are not applicable to the Crown under the established principle that legislation does not apply to the Crown unless the Crown is expressly bound. [17] I recognize that s.14 of the Interpretation Act, R.S.N.S. 1989, c.235, enshrines in Nova Scotia the principle that the Crown is not bound by legislation
Page: 5 unless it is specifically stated to be, and it is indeed Nova Scotia legislation which provides for a litigant’s right to a jury trial; that is found in the Judicature Act. [18] The issue becomes whether there is an exception in this case to the principle that the Crown is not bound unless it is specifically stated. I have concluded that doctrine, expressed in the Interpretation Act, must be considered in the context of other legislation, including the Proceedings Against the Crown Act, which specifically precludes juries in some proceedings involving the Crown, but not in others. [19] The rule that statutes cannot be construed in isolation is well established. The Judicature Act, the Juries Act, the Crown Proceedings Act and the Civil Procedure Rules are interrelated. Historically the Crown, as a plaintiff, was subject to a jury trial and also, historically, there has been a connection between the Rules of Court and the Judicature Act. Indeed after 1950, the Nova Scotia Rules of Court were appended to the Judicature Act and that legislation contemplated the Crown suing as an ordinary litigant with a jury trial presumed. I generally accept the historical analysis in the Defendants’ brief at paras.32 to 52 (copy appended as Schedule I for ease of reference). [20] The Plaintiff maintains that the provisions in the Juries Act do not bind the Crown by necessary implication; the Defendants say they do. It is clearly possible for the Crown immunity principle to be rebutted by necessary implication when legislation is interpreted in its full context. That is addressed in Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58, (P.C.); Friends of the Old Man River Society v. Canada (Minister of Transport), [1992] S.C.R. 3, and Caisse de dépôt et placement du Québec v. Frederick Sparling and the Attorney General of Québec, et al., 1988 CanLII 26 (S.C.C.) [21] I have concluded in this case that by necessary implication in the context of Nova Scotia Civil Procedure Rules, the Judicature Act applies to the Crown. The Crown is regulated by the Civil Procedure Rules when it commences litigation in Nova Scotia. By necessary implication, it must be bound by the Judicature Act upon which the Civil Procedure Rules are founded and derive their authority. [22] The objectives of both the Civil Procedure Rules and the Judicature Act would be frustrated if the Crown were not bound by the Judicature Act. I accept,
Page: 6 in summary on that point, the analysis at paras.56 to 67 of the Defendants’ brief (copy appended as Schedule II). [23] Alternatively, I find in this case that the Crown has waived any immunity it might have under the benefit/burden exception. The Crown properly describes this exception as follows at paras.36, 37 and 42 of its brief: 36. What is the benefit/burden exception? Once it is established that the statute was not intended to bind the Crown, Courts will examine whether the Crown has waived its immunity by taking the benefits of the statute that correspond with those burdens. This is referred to as the “benefit/burden exception”: See Sullivan at p. 754 and Hogg at p. 296. 37. The rationale for this exception is as follows: under the principle of Crown immunity, if the Crown was permitted to benefit from certain provisions of a statute, it must also be subject to the intended burdens that limit that benefit. To do otherwise would essentially allow the Crown to re-write the statu[t]e. Therefore, the Court must take each statute as it finds it. The benefit/burden was discussed in Hogg, wherein it stated: “it is clear that when the Crown asserts its statutory right, it becomes subject to restrictions on the right” (p. 297). ... 42. In order for Crown immunity to be waived this Court must find that the requirements of the benefit/burden exception have been met. According to the benefits/burden exception, the Defendant must establish: a. that the Attorney General of Nova Scotia has taken a benefit within the Judicature Act and Juries Act; and b. the corresponding burden has a sufficiently close “nexus” to the benefit. The Crown has taken benefit in this case, and in my view, assumed burden. The burden can arise under legislation different from the statute which gives the benefit. [24] The Crown benefit/burden exception analysis in paras.71 to 98 of the Defendants’ brief (copy appended as Schedule III) is applicable. Once the Crown starts a proceeding, it cannot be selective as to which aspects of the procedure
Page: 7 apply to it. It is a litigant, once it commences the proceeding, like any other party. The Crown cannot pick and choose the rules it wants to apply; once it enters the forum and takes the benefit of the process, it has to assume the burdens. [25] The Canadian Encyclopedic Digest under the heading “Procedure and Actions by or on behalf of the Crown in right of the Province” states: The crown proceedings statutes apply only to proceedings against the crown. In proceedings on behalf of the crown, the law and procedure are unaltered. [26] Footnotes to that statement reference a number of authorities including Bartlett v. Osterhout, [1931] O.R. 358 (S.C.), where the Court stated at para.4: The crown in an action which it institutes itself, subject to certain exceptions not arising here, submits itself to all the ordinary rules of practice and procedure. [27] In support of that conclusion, the Ontario Court referenced R. v. Grant (1896), 17 P.R. 165 Ont.C.A, [“Grant”] and R. v. City of Windsor (1896), 5 Ex. C.R. 223, an admiralty case. [28] Based upon all of the foregoing, I have concluded that the Crown does not have immunity from trial by jury in this case in Nova Scotia. [29] Although research has not revealed a case in which a court has determined directly whether the Crown as plaintiff can be subject to trial by jury, it is apparent that, absent addressing the issue squarely, jury trials have proceeded with the Crown as plaintiff. [30] In The Attorney General of Canada v. Clory, [1989] P.E.I. J. No. 2, [“Clory”] (a decision referenced during submission on the complexity issue in this case), the Attorney General of Canada brought action alleging that a wharf belonging to the Crown was destroyed by a shipyard. The defendants filed notice seeking to have trial by judge and jury. The Attorney General of Canada applied to have the jury notice struck on the grounds that the issues in the trial were too complex and the trial would be too lengthy. The Court dismissed the application, ruling that although the issues would be complex, they would not be beyond the grasp of a well-informed juror. The Judge did, however, limit the defendant’s entitlement to a jury trial to the issue of liability, stating that the nature of the trial
Page: 8 for the issues of damages could be addressed once the jury had made a decision on liability. [31] As the decision does not mention Crown immunity with respect to civil trials, nor is there any reference to the P.E.I. Crown Proceedings Act, I am not suggesting that it is an authority which settles the issue which is before this Court. There are also distinctions - it was the Federal Crown in that case and P.E.I. legislation would apply, although that province’s legislation and Rules of Court as I read them were essentially the same as Nova Scotia. The significant point is that although immunity was not raised, the Court ruled that a jury trial could proceed when the Crown was plaintiff, subject to the damages complexity issue. [32] In Grant (an Ontario Court of Appeal decision in 1896), the plaintiff, the Federal Crown, brought a motion to strike the defendant’s notice for jury. The Judge made an order striking the jury notice, but it was overturned by the Divisional Court on the ground the Motions Judge had no jurisdiction to make the ruling because the proceeding was commenced by the Crown. [33] The Court of Appeal allowed the Crown’s appeal from the Divisional Court decision, with Judges giving different reasons. It is difficult to determine the ratio from the Court of Appeal, but what is noteworthy about the report is that at no point was the possibility of the Crown being immune to a jury trial an issue. The Court simply decided that the Judge did have jurisdiction to strike out the jury notice, but not on basis of Crown immunity. [34] In Attorney General of Ontario v. Cuttell, [1955] O.R. 8, [“Cuttell”] the issue before the Supreme Court of Ontario was whether the defendants had the right to serve a jury notice when the Crown was plaintiff. The Attorney General of Canada’s application to strike out the jury notice was allowed, and the High Court directed that the trial proceed without jury. Leave to appeal was not granted. The Judge noted that the right of the Crown to make application to have the jury notice struck was affirmed in Grant, but then explained that the test for determining whether the defendants have a right to serve a jury notice on the Crown is whether at the time of the coming into force of the Administration of Justice Act, the specific relief sought by the Crown was of the kind which could have been obtained only in the Court of Chancery.
Page: 9 [35] The Crown was seeking to set aside a deed on the grounds that Cuttell obtained it by fraud, and the Court held that the granting of the form of relief sought was within the exclusive jurisdiction of the Court of Chancery, and as a result there was no right to a jury trial. [36] In Clory, Grant and Cuttell, the Courts considered whether the Crown as plaintiff was subject to jury trial. Although the question whether the Crown has absolute immunity was not adjudicated and the decisions do not address the issue, none of the reasons alluded to any general principle of immunity from jury trial where the Crown is a plaintiff. While not determinative, the decisions reinforce the conclusion there is no such doctrine; otherwise, one might assume that it would have been raised in those cases. ANALYSIS - COMPLEXITY [37] I have concluded that the Crown in this case is subject to a jury trial, unless the complexity argument succeeds. I have considered the complexity argument in the context of all of the relevant authorities which counsel cite in their briefs. I have also reviewed the file and in particular the expert reports, which are essentially the basis of the Plaintiff’s position that it is a complex case involving technical matters. The authorities make it clear there has to be a cogent reason to set aside a jury notice and that, on the complexity issue, the burden is on the party, in this case the Crown, alleging the complexity. [38] The file shows three expert reports and I understand that there may be a fourth. The main focus of the expert reports is damages. There are questions of fact, certainly, involved in the damages issue. The lawsuit arises out of a single event and trial is not expected to exceed eight days. After reviewing the expert reports, I have concluded that the issues are not so highly technical as to be beyond the capacity of a jury. I do not consider them to be more complex than the sorts of issues that regularly come before juries in personal injury cases or medical malpractice cases. [39] I have canvassed the authorities, although the decisions are case specific, and I must do an independent assessment. After doing so, I have concluded that the situation does not involve the level of complexity that requires striking the jury notice.
Page: 10 CONCLUSION [40] For those reasons, the Plaintiff’s motion is dismissed. [After discussion with counsel, costs in amount $1,000, inclusive of disbursements, payable forthwith, were awarded in Defendants’ favour.] J.
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