SUPREME COURT OF Nova Scotia
Citation: 3349659 Canada Inc. v. Young, 2022 NSSC 36
Date: 20220208
Docket: Hfx No 506743
Registry: Halifax
Between:
3349659 CANADA INC.
Plaintiff
v.
JARED LUBEN YOUNG, JOHN DOES, AND PERSONS UNKKNOWN
Defendants
DECISION ON MOTION FOR STAY AND ORDER FOR INTERROGATORIES
| Judge: |
The Honourable Justice Scott C. Norton |
| Heard: |
January 28, 2022, in Halifax, Nova Scotia |
| Decision: |
February 8, 2022 |
| Counsel: |
Sarah Shiels and Richard W. Norman, for the Plaintiff Alex Embree, for the Defendant, Jared Young |
By the Court:
Introduction
[1] The Plaintiff moves for an order requiring the Defendant, Jared Luben Young, to answer interrogatories pursuant to Civil Procedure Rule 19. Mr. Young moves for an order staying the civil proceeding until after the trial of criminal charges against him arising from the same facts that are the subject of this proceeding.
[2] The underlying proceeding was commenced by a Notice of Action and Statement of Claim filed June 9, 2021 seeking an interlocutory injunction, permanent injunction and damages against the Defendants for threats and interference with the Plaintiff conducting licensed elver harvesting activities. A default judgment was entered against Mr. Young on July 23, 2021. An interlocutory injunction against Mr. Young was granted by consent order filed October 28, 2021. An order setting aside the default judgment was filed by consent on November 12, 2021.
[3] Mr. Young is charged with 13 offences contrary to the Criminal Code arising from the same incidents, alleged to have occurred on May 16, 2021, that form the basis for this proceeding.
[4] The interrogatories in issue ask Mr. Young to answer two questions:
1. What are the names of all the other individuals (aside from employees of the Plaintiff) who were with you on the night of May 16, 2021 at or near McDonalds Drive (aka MacDonald Drive), Scotts River, or Terrance Bay?
2. What are the phone numbers, email addresses, and civic addresses of the other individuals who were with you on the night of May 16, 2021?
[5] Shortly before the 20-day deadline to answer these questions, counsel for Mr. Young advised that Mr. Young did not intend to answer the questions and would be making a motion to stay the proceeding until his criminal charges are resolved.
Law
[6] Civil Procedure Rule 19.09 governs the enforcement of interrogatories:
19.09 Enforcement and discretion to excuse
(1) A judge may order a person to answer a question in a demand, or excuse a person from answering a question, absolutely or on conditions.
(2) A judge may order a person who fails to respond to a demand or unreasonably refuses to answer a question to indemnify the party who made the demand for the expense of obtaining an answer.
[7] The Nova Scotia Judicature Act, RS 1989, c.240, affirms the court’s authority to stay proceedings. Section 41 states:
Rules of law
41 In every proceeding commenced in the Court, law and equity shall be administered therein according to the following provisions:
…
(e) no proceeding at any time pending in the Court shall be restrained by prohibition or injunction but every matter of equity on which an injunction against the prosecution of any such proceeding might have been obtained prior to the first day of October, 1884, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto provided always that nothing in this Act contained shall disable the Court from directing a stay of proceedings in any proceeding pending before the Court if it or he thinks fit, and any person, whether a party or not to any such proceeding who could have been entitled, prior to the first day of October, 1884, to apply to the Court to restrain the prosecution thereof, or who is entitled to enforce by attachment or otherwise any judgment, contrary to which all or any part of the proceedings have been taken, may apply to the Court thereof by motion in a summary way for a stay of proceedings in such proceeding either generally, or so far as is necessary for the purposes of justice and the Court shall thereupon make such order as shall be just;
[Emphasis added]
The Defendant’s Position
[8] Mr. Young did not file any affidavit on the motion. He made reference to affidavit evidence of others filed in the underlying proceeding. Mr. Young acknowledges that the legal authorities make clear that the mere fact that there are both civil and criminal proceedings pending against a person arising from same facts does not warrant an automatic stay and that Mr. Young must demonstrate a specific or particular way in which he will be prejudiced in his criminal trial.
[9] He argues that, assuming he knows the answers (which he does not admit), if he is required to answer the interrogatories, he would be identifying witnesses who could be called as witnesses to testify against him in the criminal trial scheduled for August 2022. He asserts that this would provide information that he could not be compelled to provide to the Crown or police. He says that this could violate his right to a fair trial on the criminal charges.
The Plaintiff’s Position
[10] The Plaintiff argues that the legal authorities require Mr. Young to demonstrate a specific or particular way in which he will be prejudiced if the civil matter continues while his criminal charges are pending. The Plaintiff says he has not done so. Further, they assert that the right to a fair trial does not shield an accused from lawful efforts in a parallel proceeding to obtain evidence, even if some of the evidence obtained could be unfavourable for the accused. Rather, the accused, as a prospective witness, is sheltered by ss. 11(c) and 13 of the Charter from the potential of self-incrimination.
Analysis
[11] The leading case in Canada is Stickney v. Trusz (1973), 45 D.L.R. (3d) 275. The rule was summarized by Hallet J. (as he then was) in Lindsay (Re), [1986] N.S.J. No. 101 as follows (citations omitted):
The law with respect to whether or not a civil proceeding should be stayed pending the criminal trial of a party is authoritatively set forth in the decision of Zuber, J., in Stickney … which decision was confirmed by the Divisional Court in Ontario and subsequently by the Ontario Court of Appeal…Leave to appeal to the Supreme Court of Canada was refused without written reasons… As stated in that case, the mere fact that both civil and criminal proceedings are pending against a person and arise out of the same or related facts is not a sufficient ground to qualify as an exceptional case in which the civil proceeding should be stayed. It is incumbent upon the applicant to show some specific or particular way in which he will be prejudiced in his criminal trial if the civil action is allowed to proceed prior to the criminal proceeding. (emphasis added)
[As appears in original]
[12] The cases show that there is a considerable burden on the applicant for a stay to show prejudice or a real apprehension of prejudice. Municipal Enterprises Ltd. v. Rowlings, [1990] N.S.J. No. 385.
[13] The Saskatchewan Court of Appeal in Laxton Holdings Ltd. v. Non-Marine Underwriters, Lloyd’s, London [1987] S.J. No. 131, affirmed the principle that the discretion to grant a stay should only be exercised in extraordinary circumstances and cited its decision in Leier v. Shumiatcher and Luboff (1962), 39 W.W.R. 446 as correctly stating the law at pages 447-448:
The exercise of the discretion must not, of course, be capricious or arbitrary, but must have as its foundation admissible evidence of record from which the judge may reasonably draw conclusions…With respect, in the present case, I am unable to find an evidence from which a conclusion of prejudice might be drawn.
[14] Mr. Young has not tendered any evidence to demonstrate how his right to a fair trial would be undermined if the civil proceeding is to continue. The argument, that the unknown defendants, “if” identified, “might” come the attention of the Crown and “could” be called to give testimony that would have a prejudicial impact on his chances at trial, is speculative and not founded on evidence.
[15] In Laxton, supra, the Saskatchewan Court of Appeal considered an appeal from a successful motion for a stay by the respondent principals of a company that filed an insurance claim for theft of cattle semen worth over $80,000. The claim was rejected and the company brought action on the policy. An information was filed alleging fraud and public mischief against the respondents. The appellate court determined that, given the right to claim protection under the Canada Evidence Act as well as section 13 of the Charter, the respondents’ evidence could not be used against them in the criminal proceedings. In light of these protections against the misuse of transcripts of examination for discovery and documents obtained on discovery of documents, submission to discovery did not constitute extraordinary circumstances so as to permit a stay. Justice Sherstobitoff concluded, at para. 31, that “any other conclusion would amount to an automatic stay because the same facts gave rise to civil and criminal proceedings”.
[16] In Canada (Attorney General) v. Courchene [2006] M.J. No. 497, the Attorney General commenced action against the Defendants alleging misappropriation of federal government funds intended for the benefit of certain treatment centres on the Sagkeeng First Nation. The Defendant Perry Fontaine was also charged with a number of criminal offences with respect to the misappropriation of these funds. Fontaine moved to stay the civil proceeding. The Manitoba Court of Queen’s Bench, citing the Stickney decision, found that a stay will only be granted where there are exceptional or extraordinary circumstances. The parties must start with a presumption against the granting of a stay. In response to the argument that allowing the civil action to proceed would prejudice his right to a fair criminal trial because the evidence which he will be required to produce could be used against him in the criminal case, the court reasoned that the potential use of evidence from the civil proceeding in the criminal trial is something that will have to be determined by the judge at the criminal trial (considering section 13 of the Charter and the protection of the Canada Evidence Act).
[17] Justice Greenburg, referring to Stickney, added: “If the protection of s. 5 of the Canada Evidence Act was sufficient to alleviate concerns about prejudice in the pre-Charter cases, then the broader protection offered by s. 13 can only diminish the argument of prejudice” (para. 16).
[18] Justice Greenberg relied on the Supreme Court of Canada decision in Phillips v. Nova Scotia (Commissioner, Public Inquiries Act) [1995] 2 S.C.R. 97. There, mine managers who were charged with manslaughter as a result of the Westray Mine disaster tried to prevent the public inquiry into the disaster from proceeding because it would prejudice their right to a fair trial. The Supreme Court overturned the decision of the Nova Scotia Court of Appeal to stay the proceedings. The mine managers argued that the concurrent proceedings would jeopardize their right under s.11(d) of the Charter. In rejecting the argument, Justice Cory (who wrote a majority concurring decision) said:
165 Neither the fact that an individual is subject to other judicial or state-initiated proceedings in addition to a criminal trial (Orysiuk v. R. (1977), 37 C.C.C. (2d) 445 [1 C.R. (3d) 111] (Alta. C.A.)) nor that these proceedings may be held contemporaneously with the criminal trial (Stickney v. Trusz (1973), 2 O.R. (2d) 469 (H.C.)) precludes the fairness of that trial. As with pre-trial publicity or any other action or circumstance which is alleged to jeopardize an accused's fair trial rights, what must be proven is not simply the act itself or the existence of the circumstances, but rather the prejudice which flows from them. That prejudice has not been demonstrated in this case. As a general rule, it is desirable that the public inquiry proceed as quickly as possible. However, in the present case, as the Attorney General has elected to proceed with and is now well into the criminal trial, I trust that such care and courtesy will be displayed by the Commission and the judge presiding at the trial that the managers and their counsel will not be unduly prejudiced by the commencement of simultaneous proceedings.
…
167 Should the criminal trials of the two accused have been held simultaneously with the public inquiry they would present no more than a potential risk. That potential risk would not be enough to establish a breach of s. 11(d). To hold to the contrary would jeopardize all civil actions, administrative hearings, and professional disciplinary proceedings which relate in some manner to criminal trials and proceed contemporaneously with them.
[Emphasis added]
[19] Established rules of evidence and civil procedure permit a party to compel testimony in a civil proceeding that would not be compellable in a criminal trial. Some of the evidence gathered may be unfavourable to the accused in the parallel proceeding. But to prevent a party in a civil proceeding from seeking a judicial remedy, in this case identifying parties who might be enjoined from preventing the Plaintiff from pursuing its lawful right to harvest elvers, should only be done in exceptional circumstances.
[20] The arguments advanced by Mr. Young are speculative and without evidentiary foundation. Mr. Young has the protection of the Charter, Nova Scotia Evidence Act and Canada Evidence Act with respect to any attempted use of evidence given by him in the civil proceeding in a manner that violates those protections.
[21] Mr. Young also has the benefit of the implied undertaking rule, incorporated by reference into Civil Procedure Rule 14.03. This common law rule limits the use of compelled information (document production, oral discovery and interrogatories) to the particular litigation. The compelled information is not free to be used by the receiving party for purposes other than the particular litigation. Essentially, the implied undertaking rule means that “whatever is disclosed in the discovery room stays in the discovery room unless eventually revealed in the courtroom or disclosed by judicial order”. Juman v Doucette, 2008 SCR 8, at para. 25.
[22] The import of the rule is described by Paciocco, The Law of Evidence, (Toronto: Irwin Law Inc., 2015) at page 263:
The undertaking is made to the court, and the sanction for a breach is contempt. A party who seeks to make use of the disclosed documents for other purposes may make a motion to the court seeking leave to do so. Before granting relief from the undertaking, the court must be satisfied “that the interests of justice outweigh any prejudice that would result to a party who disclosed evidence”. The applicant, who seeks relief against an implied undertaking, must demonstrate on a balance of probabilities the existence of a public interest greater than the values of the implied undertaking rule is designed to protect, namely privacy and the efficient conduct of civil litigation.
[23] In the present case, this means that the Plaintiff and its directing minds must not provide any information obtained from the compelled answer to the interrogatories to anyone for use outside this litigation without seeking permission from the court. To do so would subject the Plaintiff and its directing minds to a possible finding of contempt. I am satisfied that Plaintiff counsel will make this obligation clear to their client.
Conclusion
[24] Mr. Young’s motion for a stay of proceedings is denied. The Plaintiff’s motion for an order compelling Mr. Young to answer the interrogatories is granted. The Order should provide that Mr. Young must deliver his answer within ten days of the date of the Order.
[25] The Plaintiff is entitled to costs on the two motions which were heard and considered together. I award the Plaintiff costs including disbursements of $350 to be paid forthwith.
Norton, J.