SUPREME COURT OF Nova Scotia
Citation: Annapolis Group Inc. v. Halifax (Regional Municipality), 2023 NSSC 389
Date: 20231201
Docket: 460474
Registry: Halifax
Between:
Annapolis Group Inc.
Plaintiff
v.
Halifax Regional Municipality
Defendant
D E C I S I O N
Judge: |
The Honourable Justice James L. Chipman |
Heard: |
November 27, 2023, in Halifax, Nova Scotia |
Written Decision: |
December 1, 2023 |
Counsel: |
Rebecca Jones and Jonathan McDaniel, for the Plaintiff Ian Dunbar, Michael Richards and Natasha Puka, for the Defendant |
By the Court:
Introduction and Background
[1] This litigation has been ongoing for over six years. I am the case management judge (CMJ) and have presided over several case management conferences and motions. One such motion made its way to the Supreme Court of Canada and in a judgment rendered just over a year ago (Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36) the majority decision provided this factual background:
[5] Over time from the 1950s, Annapolis acquired the subject property, comprising 965 acres of land ("Annapolis Lands" or "Lands"), with the intention of eventually securing enhanced development rights and reselling it.
[6] In 2006, Halifax adopted the Regional Municipal Planning Strategy, a guide for land development in the municipality, including the Annapolis Lands, over a 25-year period. While the Planning Strategy reserved a portion of the Annapolis Lands for possible future inclusion in a regional park, it also zoned the Lands as "Urban Settlement" and "Urban Reserve". Urban Settlement denotes an area where urban forms of development may occur. Urban Reserve identifies land that could be developed beyond the 25-year horizon. These designations thus contemplate -- but do not permit -- future residential serviced development. For serviced development to occur on the Annapolis Lands, Halifax must adopt a resolution authorizing a "secondary planning process" and an amendment to the applicable land use by-law. The applicable by-law is the Halifax Mainland Land Use By-Law, also adopted in 2006.
[7] In 2014, Halifax adopted a revised version of the Planning Strategy. The Urban Settlement and Urban Reserve designations were maintained, and thus the zoning of the Annapolis Lands did not change, and has not changed since 2006. Nor were the conceptual boundaries for the potential park altered.
[8] Beginning in 2007, Annapolis made several attempts to develop the Lands. Ultimately, by resolution dated September 6, 2016, Halifax refused to initiate the secondary planning process, and Annapolis sued, alleging a constructive taking, misfeasance in public office, and unjust enrichment.
[2] I have before me Notices of Motion filed November 9, 2023 by Halifax Regional Municipality (HRM) and the next day by Annapolis Group Inc. (Annapolis). HRM’s motion is also directed to a non-party, Grant Thornton LLP (Grant Thornton). In this regard, HRM asks for production of Grant Thornton’s file regarding the valuation for the Blue Mountain Birch Cove Lands at the time of the “Rubicon” split of companies. Annapolis takes no position on this, other than with respect to the text of the proposed order, which they submit should read:
2. The Plaintiff shall have 10 days after receipt of Grant Thornton LLP’s file materials to produce the pages or passages of said materials contained therein regarding the valuation for the Blue Mountain Birch Cove Lands at the time of the “Rubicon” split of companies (with the remainder of said pages or passages to be redacted) redact any irrelevant passages or pages and thereafter produce the Grant Thornton Materials to the Defendant;
[3] In my view the above-quoted passage aligns with the language of my April 21, 2023, production order (Production Order) and for consistency and fairness, I rule that the motion order shall read this way.
[4] The second and final aspect of HRM’s motion concerns a schedule for the completion of the joint exhibit book referable to the trial scheduled to commence April 15, 2024. In the time since the filing of the motion the parties have agreed to the following schedule, which I rule shall be incorporated into the motion order:
• January 17, 2024: the Plaintiff shall provide the Defendant with its draft index to the Joint Exhibit Book;
• February 23, 2024: the Defendant shall advise the Plaintiff of its position on the documents the Plaintiff requests to be admitted by way of the Joint Exhibit Book, and any additional documents that the Defendant wishes to include in the Joint Exhibit Book; and
• March 8, 2024: the Plaintiff shall advise the Defendant of its position on the additional documents the Defendant requests to be admitted by way of the Joint Exhibit Book.
[5] Having said this and as I stated during oral submissions, I would encourage counsel to change the nomenclature of joint exhibit book to common documents book (see Theriault v. Avery's Farm Markets Ltd., 2022 NSCA 36).
[6] With respect to their November 10th motion, Annapolis seeks the further production of documents, as well as further answers to questions taken under advisement or refused during the examinations for discovery of (now retired HRM planning director) Kelly Denty on July 10, 2023 and October 5, 2023. HRM opposes both aspects of the motion.
Evidence
[7] Attached to Annapolis’ Notice of Motion are three schedules; Schedule “A”, Schedule “B” and Schedule “C”. Schedules “A” and “C” were subsequently revised to reflect late breaking production. Although the emails and attached schedules received in the lead-up to the motion were not appended to affidavits (and hence not referenced below), I have considered this material as further evidence and all counsel (when asked during oral submissions) agreed with this approach. In discussing the areas of contention, I have at various times, referenced the schedules in this decision.
[8] Filed in support of the motions are these affidavits:
1. November 9, 2023 sworn and filed by HRM lawyer Michael Richards;
2. November 10, 2023 sworn and filed November 16, 2023 by Annapolis law clerk Grace Tsakas;
3. November 20, 2023 sworn and filed by Mr. Richards; and
4. November 22, 2023 sworn and filed by Ms. Tsakas.
[9] The affiants were not cross-examined. The second Richards’ affidavit attaches recent correspondence from another HRM lawyer (Natasha Puka) to Annapolis’ counsel, and from a senior lawyer from the Province of Nova Scotia. The latter, a November 20, 2023 letter from Edward Gores, K.C. to Michelle Awad, K.C. (HRM lawyer) was provided to Annapolis’ counsel.
[10] Ms. Tsakas’ latest affidavit includes Annapolis’ response to the recent correspondence from HRM. In his November 21st letter, Jonathan McDaniel (Annapolis’ lawyer) replies to Ms. Puka’s letter by stating, “some of the answers provided are not responsive in full or in part …”. Mr. McDaniel elaborates with a detailed breakdown of the questions, HRM’s November 20th response and alleged deficiencies.
[11] The recent emails attached further correspondence from Ms. Puka dated November 21 and 24, 2023 along with an email exchange between Mr. Gores and Annapolis senior counsel, Peter Griffin. Finally, in terms of evidence, the Court reviewed complete transcripts of Ms. Denty’s discoveries of earlier this year. The two volumes (July 10, 2023 - 231 pages and October 5, 2023 - 103 pages) were handed up by Annapolis counsel during the motion.
Guiding Law
[12] In addition to deciding whether HRM’s recent answers are enough to satisfy their production obligations, there were a number of other requests made during Ms. Denty’s discoveries which HRM has refused on the basis of relevance or privilege. Within this decision, I will set out these contested areas and provide the Court’s direction. For now, I wish to touch on the guiding Rules and authorities.
[13] Civil Procedure Rule 14.06 expressly sets out the presumption for full disclosure of relevant documents:
14.08 (1) Making full disclosure of relevant documents, electronic information, and other things is presumed to be necessary for justice in a proceeding.
(2) Making full disclosure of documents or electronic information includes taking all reasonable steps to become knowledgeable of what relevant documents or electronic information exist and are in the control of the party, and to preserve the documents and electronic information.
(3) A party who proposes that a judge modify an obligation to make disclosure must rebut the presumption for disclosure by establishing that the modification is necessary to make cost, burden, and delay proportionate to both of the following:
(a) the likely probative value of evidence that may be found or acquired if the obligation is not limited;
(b) the importance of the issues in the proceeding to the parties.
(4) The party who seeks to rebut the presumption must fully disclose the party’s knowledge of what evidence is likely to be found or acquired if the disclosure obligation is not limited.
(5) The presumption for disclosure applies, unless it is rebutted, on a motion under Rule 14.12, Rule 15.07 of Rule 15 - Disclosure of Documents, Rules 16.03 or16.14 of Rule 16 - Disclosure of Electronic Information, Rule 17.05 of Rule 17 - Disclosure of Other Things, or Rule 18.18 of Rule 18 – Discovery.
[14] Rule 14.12(1) permits the Court to issue an order requiring a party to produce relevant documents:
14.12 (1) A judge may order a person to deliver a copy of a relevant document or relevant electronic information to a party or at the trial or hearing of a proceeding if the moving party provides all of the following representations:
(a) the party is in compliance with Rule 15 - Disclosure of Documents and Rule 16 - Disclosure of Electronic Information;
(b) the party believes the delivery would promote the just, speedy, and inexpensive resolution of the proceeding, including a concise statement of the grounds for the belief;
(c) the party will pay the reasonable costs of making the delivery, unless a judge directs otherwise.
[15] Rule 14.01, defines the words “relevant” and “relevancy” as follows:
14.01 (1) In this Part, “relevant” and “relevancy” have the same meaning as at the trial of an action or on the hearing of an application and, for greater clarity, both of the following apply on a determination of relevancy under this Part:
(a) a judge who determines the relevancy of a document, electronic information, or other thing sought to be disclosed or produced must make the determination by assessing whether a judge presiding at the trial or hearing of the proceeding would find the document, electronic information, or other thing relevant or irrelevant;
(b) a judge who determines the relevancy of information called for by a question asked in accordance with this Part 5 must make the determination by assessing whether a judge presiding at the trial or hearing of the proceeding would find the information relevant or irrelevant.
(2) A determination of relevancy or irrelevancy under this Part is not binding at the trial of an action, or on the hearing of an application.
[16] In Laushway v. Messervey, 2014 NSCA 7, Saunders, J.A. considered the test for relevance under Rule 14.01. Justice Saunders referred to the decisions of Bryson, J.A. in Brown v. Cape Breton (Regina Municipality), 2011 NSCA 3 and Moir, J. in Saturley v. CIBC World Markets Inc., 2011 NSSC 4, and provided the following comments at paras. 48 – 49:
[48] In Brown, my colleague Justice Bryson expressed this Court's endorsement of Justice Moir's comments in Saturley. He declared:
[12] ... In any event, I agree with Justice Moir's comments at para. 46 of Saturley that:
[46] This examination of the legislative history, the recent jurisprudence, and the text of Rule 14.01 leads to the following conclusions:
● The semblance of relevancy test for disclosure and discovery has been abolished.
● The underlying reasoning, that it is too difficult to assess relevancy before trial, has been replaced by a requirement that judges do just that. Chambers judges are required to assess relevancy from the vantage of a trial, as best as it can be constructed.
● The determination of relevancy for disclosure of relevant documents, discovery of relevant evidence, or discovery of information likely to lead to relevant evidence must be made according to the meaning of relevance in evidence law generally. The Rule does not permit a watered-down version.
● Just as at trial, the determination is made on the pleadings and evidence known to the judge when the ruling is made.
In my opinion, these conclusions follow from, and are enlightened by, the principle that disclosure of relevant, rather than irrelevant, information is fundamental to justice and the recognition that an overly broad requirement worked injustices in the past.
[13] I also agree with Justice Moir that this does not mean a retreat from liberal disclosure of relevant information.
[49] The observations of Wood, J. in a subsequent decision in Saturley v. CIBC World Markets Inc., 2012 NSSC 57 are also instructive. In particular, I agree with Justice Wood's comments at para.9-10 where he said:
[9] In my view, the Court should take a somewhat more liberal view of the scope of relevance in the context of disclosure than it might at trial. This is subject, of course, to concerns with respect to confidentiality, privilege, cost of production, timing and probative value.
[10] At the disclosure and discovery stage of litigation, it is better to err on the side of requiring disclosure of material that, with the benefit of hindsight, is determined to be irrelevant rather than refusing disclosure of material that subsequently appears to have been relevant. In the latter situation, there is a risk that the fairness of the trial could be adversely affected.
[17] Apart from the requisite degree of relevance, the definition of “relevant” itself was reviewed at length by Justice LeBlanc in Murphy v. Lawton’s Drug Stores Limited, 2010 NSSC 289, at paras. 14 – 20. The following excerpt appears at para. 20:
[20] In Sydney Steel Corp. v. Mannesmann Pipe & Steel Corp. (1985), 69 N.S.R. (2d) 389, 1985 CarswellNS 93 (S.C.T.D.), Hallett, J. (as he then was), stated, at paras. 15-16:
As relevancy is the issue on this application, it would not be inappropriate to consider what constitutes relevancy. The most accepted meaning of the word relevancy seems to be that made by Stephen in his Digest of the Law of Evidence and referred to by Cross on Evidence (4th ed., 1974), at p. 16 where Sir Rupert Cross states:
It is difficult to improve upon Stephen's definition of relevance when he said that the word 'relevant' means that:
any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.
P.K. McWilliams, Q.C., in Canadian Criminal Evidence (2nd ed., 1984), at p. 35, in a section dealing with the meaning of relevance, makes reference to this quotation from Stephen's Digest and goes on to state: "Relevancy is also defined simply as whatever is logically probative or whatever accords with common sense." McWilliams goes on to state that one must keep in mind that the decisions on issues of fact are left to the common sense of the jury and therefore it is pointless to attempt to arrive at a precise or philosophical definition of relevancy.
[18] The test for disclosure of relevant documents in Wilsons Fuels Co. Ltd. v. Power Plus Technology Inc., 2015 NSSC, 304 was summarized:
[17] A determination of relevance must therefore be made with reference to the facts in issue as identified in the pleadings. However, even if alleged in the pleadings, a fact will not truly be in issue unless it is a necessary and material allegation. To meet the test for relevance, then, (1) the document or electronic information must prove or render probable the past, present or future existence or non-existence of a fact; (2) the fact must relate to an allegation set out in the pleadings; and (3) the allegation must not be unnecessary or immaterial to the claim or defence: see generally The Law of Evidence in Canada at §§2.43-2.49.
[19] More recently our Court of Appeal weighed in on the proper test for relevancy. In Intact Insurance Company v. Malloy, 2020 NSCA 18, Justice Farrar stated as follows:
[35] Although the pleadings are a factor to be taken into consideration in determining whether documents are relevant, they are not the only factor. If that were the case, adroit counsel could draft pleadings in such a manner to allow a party to embark on a fishing expedition. This is precisely what the Rules were intended to avoid when they were amended to move from the "semblance of relevance" test to relevancy. The motions judge's decision, in my view, reverts to the "semblance of relevance" test. Allegations, no matter how specifically worded or drafted, which have no basis in the facts or the evidence without more, cannot be the basis for a production application. This is particularly true here, where there was a dearth of evidence before the motions judge.
[20] Minimally relevant documents should not be ordered produced where there is a compelling reason to refuse. As articulated by (then) Justice Duncan in Halifax (Regional Municipality) Pension Committee v. State Street Bank & Trust Co., 2011 NSSC 355, disclosure of such documents should be refused where they “would generate a burden disproportionate to the probative value of the information sought”.
[21] The latest word on relevance in the context of discoveries from our Court of Appeal appears in Sipekne'katik v. Mi'kmaw Family and Children's Services Nova Scotia, 2023 NSCA 44. Justice Fichaud reviewed Rules 14.01, 14.08, 18.13 and 18.18. The latter two Rules are referrable to discovery and read:
18.13 (1) A witness at a discovery must answer every question that asks for relevant evidence or information that is likely to lead to relevant evidence.
(2) A witness at a discovery must produce, or provide access to, a document, electronic information, or other thing in the witness’ control that is relevant or provides information that is likely to lead to relevant evidence.
(3) A witness who cannot comply with Rule 18.13(2) may be required to make production, or provide access, after the discovery or at a time, date, and place to which the discovery is adjourned under Rule 18.18.
(4) A party who withholds privileged information but decides to waive the privilege must disclose the information to each party and submit to discovery if required by another party.
(5) An expert retained by a party is not subject to discovery, except as permitted under Rule 55 - Expert Opinion
…
18.18 (1) A party may require a witness who is examined at a discovery to produce, or provide access to, a document, electronic information, or other thing referred to by the witness but not brought to, or accessible at, the discovery, unless one of the following applies:
(a) the document, information, or thing is not in the control of the witness;
(b) it is not relevant and is not likely to lead to relevant evidence;
(c) it is privileged.
(2) A judge may order a witness who fails to comply with a requirement for production or access to make production or provide access, and the judge may order the witness to indemnify the party who seeks the order for the expense of obtaining the production or access.
(3) A party who requires production or access before the party completes examination of a witness at discovery may adjourn the discovery.
(4) A judge may relieve a party or a non-party witness from a requirement to produce, or provide access, at discovery examination if the party or witness rebuts the presumption for disclosure in accordance with Rule 14.08, of Rule 14 - Disclosure and Discovery in General.
[22] After touching on these Rules, Saturley, Brown and Intact, Justice Fichaud states as follows at paras. 30 – 33:
[30] As Justice Moir said, relevance for disclosure means the same as in evidence law generally.
[31] As to the meaning of "relevance" in evidence law generally, I will apply Justice Rothstein's formulation from R. v. White, 2011 SCC 13:
(a) Relevance
36.... In order for evidence to satisfy the standard of relevance, it must have "some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence" [citations omitted].
[32] To identify those propositions, the starting point is the pleadings.
[33] However, sometimes the pleading of wishful generalities blurs the focus. Rule 14.01(1) directs the motions judge to replicate the trial judge's perspective. Therefore, as a practical matter, an effective submission on relevance should be supported by evidence. In Intact Insurance, supra, para. 39, Justice Farrar said "[e]vidence plays a central role in production motions under the 2009 Rules, as it is instrumental in 'reproducing the vantage point of the trial judge'". To similar effect: Brown, paras. 22-23, per Bryson J.A.
Positions of the Parties
Annapolis
[23] Annapolis argues that the documents they seek are clearly relevant and well articulated in the three schedules. They point out that several of the documents relate back to the last motion which resulted in the Production Order. Beyond that material, they argue that the new requests arising from Ms. Denty’s recent discoveries are similarly compellable. Annapolis asserts that the documents should have been produced long ago such that the motion could have been avoided.
HRM
[24] HRM submits that context is properly required to assess the documentary requests put before the Court just five months before the scheduled commencement of trial. Halifax reminds the Court that in 2019 Annapolis filed their Request For Date Assignment Conference (RDAC) attesting that production was complete. HRM points out that Ms. Denty’s recent discoveries resulted in 79 undertaking requests in July and 38 more in October. HRM argues that they have produced a massive quantity of materials and that overall, there are approximately 100,000 produced documents in the litigation. They note that the expert reports have been filed on the basis of the current disclosure and that further production would complicate things and possibly lead to an adjournment.
[25] In all of the circumstances HRM says that they have produced relevant materials and that the current requests, coming on the eve of trial, should be met with a “best efforts order”, requiring any ordered production to be provided by the end of the year.
Analysis and Disposition
Executive Panel on Housing in HRM Documents
[26] Annapolis requests responses to a series of questions related to the Province’s Executive Panel on Housing in the Halifax Regional Municipality (the Provincial Panel). These requests are further identified in Section I of Schedule “A”. Similarly, with reference to Schedule “B” Annapolis requests, “all documents and electronic information related to HRM staff’s work for the [Provincial Panel]”.
[27] During Ms. Denty’s July 10 discovery, Annapolis counsel began to ask her about the Provincial Panel. HRM’s lawyer (Ian Dunbar) objected as set out below (excerpts provided from the transcript at pp. 188 – 189 and attached to Mr. Richards’ second affidavit as exhibit “E”):
KELLY DENTY, Exam. by R. Jones
Q. And (b), “A temporary mechanism to accelerate planning and development, “right?
A. Yes.
Q. And that was the two things, while you sat on this provincial panel, that you guys were directed towards?
A. Yes.
Q. And the panel, if you look at Section 6, “Shall advise and provide recommendations to the Minister and the Municipality”, right?
A. Yes.
Q. Has the panel made recommendations to the Minister and Municipality, so far?
A. It has to the Minister.
Q. Okay. And what was the nature of the recommendations to the Minister? Is that the special planning areas?
MR. DUNBAR: I’m going to object, only on the basis that I’m not certain if there’s deliberative process privilege attaching to this.
MS. JONES: Okay.
MR. DUNBAR: And I don’t want to allow the witness to answer and then be found out I’ve breached some sort of state secrets.
MS. JONES: Sure.
MR. DUNBAR: So I think I need to figure that one out.
MS. JONES: Okay. That’s fair. So I think I probably should still ask my questions, and then I’ll put them on the record and then Mr. Dunbar can take them under advisement and consider deliberative secrecy. So my questions are what recommendations the panel has made to the Municipality, whether there have been recommendations … if the special planning areas are a recommendation, whether there have been recommendations other than the development of the non-special, by name, areas. *
MR. DUNBAR: And so those are all under advisement.
MS. JONES: I also, which will fall under the same category, want to have … do you take notes at these meetings, Ms. Denty?
A. Sometimes.
Q. Okay. I’d like Ms. Denty …
A. Yeah.
Q. … and Mr. Duncan’s notes of the proceedings of the meeting, any emails, texts, Teams messages relating to considerations for the provincial panel meetings. *
MR. DUNBAR: Same response.
MS. JONES: When you started on the panel, and you
…
[28] The above reference to “deliberative process privilege” was refined to a claim by HRM of Parliamentary privilege. This was ultimately abandoned in the lead up to the motion, albeit after the filings. Accordingly, the parties spent considerable effort in their briefs on this topic and I am mindful of Annapolis’ costs arguments focused on this point. I will return to this issue in my conclusion when I address motion costs.
[29] Notwithstanding the abandonment of the privilege argument, HRM maintains for other reasons that the sought after Provincial Panel documents and electronic information is not compellable. Annapolis takes issue with this and raises the pleadings and Supreme Court of Canada authority for support.
[30] In its Amended Statement of Claim, Annapolis claims that HRM de facto or constructively expropriated Annapolis’ lands when HRM Council voted against initiating secondary planning for this land. Indeed, the Supreme Court of Canada references the September 6, 2016 resolution in the background that I have reproduced at para. 1 of this decision.
[31] Part of HRM’s Amended Defence is that it did not initiate secondary planning of the Annapolis lands on September 6, 2016 because, in part, it did not require the lands for housing. Annapolis disputes this and argues that HRM’s housing projections and the current state of housing in HRM are relevant to HRM’s stated reasons for failing to initiate secondary planning.
[32] Annapolis points out that in Annapolis, the majority decision authored by Justices Côté and Brown states as follows at para. 72:
72 According to Annapolis, Halifax has repeatedly refused to initiate the secondary planning process which could lead to the re-zoning of the Annapolis Lands. If Annapolis can prove at trial that Halifax is unlikely to ever grant secondary planning approval, this is clearly material to its constructive taking claim. In our view, all reasonable uses of land may be shown to have been eliminated where a permit needed to make reasonable use of the land is refused, such that the state has effectively taken away all rights of ownership.
[33] Since the decision emphasizes the word “ever”, Annapolis argues that this is strong authority that the recent Provincial Panel materials (and other documents sought on this motion) are highly relevant.
[34] By way of background, the Provincial Panel was created by the Province in the Halifax Regional Municipality Act, 2021, c. 21. In Mr. Gores’ November 20th letter he states that he has read Annapolis’ brief filed on this motion (where the argument is made at paras. 4 – 17 for production of “all information and documents in HRM’s possession, including the possession of Ms. Denty, about the work of the Panel”). With respect to the request for the records, Mr. Gores states:
The Panel is a creature of provincial legislation, with provincial and municipal representation, created for the purpose of providing recommendations to the Minister of Municipal Affairs and Housing on ways to increase the supply of housing in HRM: s. 7 of the Act. The Panel is, in our view, a provincial body created by the provincial records. As a result, access to those records would be through the Freedom of Information and Protection of Privacy Act. Neither the Province nor the Panel are a party to the litigation in the above matter. As a result, it would not be appropriate for Ms. Denty, as a representative of the Halifax Regional Municipality in the litigation, to provide evidence based on her role on a provincial body which was created to advise the Minister of Municipal Affairs and Housing.
[35] Annapolis takes issue with the above, in the main because they say a freedom of information request is not likely to result in the notes and other documents that Ms. Denty said she and the other HRM employee (Peter Duncan) who was part of the Provincial Panel had in their possession.
[36] HRM responds by emphasizing Mr. Gores’ opinion and adding that an order requiring HRM to produce the material might well result in a privilege objection coming from the Province.
[37] Having regard to the legislation (and given that at the material time Ms. Denty and Mr. Duncan were employees of HRM, not the Province), I regard Mr. Gores’ view expressed above as accurate. In all of the circumstances, I am of the opinion that the documents relating to the Provincial Panel are not HRM’s documents but rather, belong to the Provincial Panel. Rather than asking for the documents from HRM, Annapolis ought to have requested the material from the Province.
[38] From the latest Tsakas affidavit it is apparent that Annapolis must have recently made a freedom of information request. On November 21, 2023, Annapolis received information from the Province pursuant to the Nova Scotia Freedom of Information and Protection of Privacy Act. Annapolis counsel advised during oral submissions that a further freedom of information request will be made of the Province.
[39] In conclusion on this aspect of the motion, I am not persuaded that simply because HRM’s planning expert in this lawsuit, Jessica McDonald refers to the Provincial Panel in her report, that the Provincial Panel files must be produced by HRM. In any event, the disclosure confirms that Ms. McDonald was not provided with any of the Provincial Panel materials requested on the motion.
Questions Concerning Search Efforts
[40] Annapolis outlines a series of questions it asked beginning in July, 2023 regarding the various search terms and procedures used by HRM to locate the documents it has produced in this litigation to date. These requests and HRM’s responses are identified below:
C-02 Provide the retention policy for Teams chats at HRM, as well as confirmation as to whether Temas was searched. To the extent it can still be searched, ensure Teams is searched for all relevant productions.
C-03 2023.07.10 Discovery: Provide the names of those emails were searched, who was asked to produce emails, what criteria were given for search, and whether there were search terms for documents relevant to the litigation post-2019.
D-14 2023.10.05 Discovery: Regarding C-03, we request the following clarifications:
- Advise who established the search criteria for individuals to search their emails;
- Advise whether individuals were given common search criteria;
- Advise whether individuals used their own search criteria;
- Advise what efforts have been made to determine what the search criteria were;
- Advise how the search was completed on HRM’s databases.
Response: The emails and files of Richard Harvey, Ben Sivak, Leah Perrin, Shilo Gempton, Emilie Pothier, Colin Walsh, Peter Stickings, Robert Jahncke, Kate Greene and Douglas Reid were searched. The search criteria were not saved.
Each witness confirmed that the requested searches were conducted.
C-05 2023.07.10 Discovery: Since 2019, determine whether any texts relevant to the litigation were searched and produced.
D-19 2023.10.05 Discovery: Confirm that a search for post-2019 text messages relevant to the litigation was conducted. Request that Richard Harvey, Ben Sivak, Leah Perrin, Shilo Gempton, Emilie Pothier, Colin Walsh, Peter Stickings, Robert Jahncke, Kate Greene, and Douglas Reid search their text messages for documents relevant to the litigation. Produce the search criteria provided to these individuals.
Response: HRM has not located any relevant text messages.
[41] Productions in this matter were first made over four years ago. Now, approximately seven years after the matters in issue, I agree with HRM that the potential probative value of a text message that might mention the Annapolis lands is far outweighed by the effort required to specify search criteria and carry out searches among multiple HRM employees – many of whom did not factor into the events prior to September, 2016 in any way. In this regard, I am mindful of the proportionality analysis identified by (then) Justice Duncan in Halifax (Regional Municipality) Pension Committee.
[42] While I am alive to the decision handed up by Annapolis – Velsoft Training Materials Inc. v. Global Courseware Inc., 2012 NSSC 295 – referable to the electronic information disclosure obligations (Rule 16), I note that (then) Justice Wood’s comments were in the context of production during the early stages of litigation. By contrast, this litigation has been ongoing for over six years and we are now within six weeks of the Finish Date.
[43] I would add that there is scant evidentiary basis to support the type of exhaustive search now requested by Annapolis. Annapolis has examined multiple witnesses from HRM over a period of years, with multiple rounds of disclosure. Ms. Denty has been examined once, then on her undertakings, then again on her further responses. Keeping in mind Justice Fichaud's comments in Sipekne'katik, without some evidence to support the suggestion that there are any relevant text messages, Teams messages or that any relevant emails are undisclosed, there is no basis to require HRM to exhaustively search its employees' emails, text messages and Teams messages with specified search terms and defined criteria five months before the commencement of trial.
[44] Counsel for Annapolis has not articulated how the requested materials are in any way relevant to the pleadings. In my view, the request for further information appears to be nothing more than a "fishing expedition". In other words, it is a bare attempt by Annapolis to try to find communications or instructions from HRM that might possibly support its theory of the case, in the absence of any underlying factual foundation. Requests of this nature do not satisfy the "relevancy" requirement, as noted by Justice Farrar in Intact Insurance Company.
[45] In Murphy Justice LeBlanc quoted with approval the following passage from the Alberta Court of Queen's Bench in Liu v. West Edmonton Mall Property Inc., (2000), 279 A.R. 305, 2000 CarswellAlta 1332, "There is no fishing without first evidence that there are fish in the pond and a reasonable amount of fish" (at para. 34). This is the test that must be satisfied to allow records to be discoverable." In all of the circumstances, I conclude that Annapolis has not met that test.
[46] Before leaving this area, I should add that the record confirms that HRM has already provided the names of the individuals whose emails have been searched, that the Teams messages are deleted after a few days, and that no relevant text messages were located. The only additional aspect required – as acknowledged by Mr. Dunbar – is for HRM to search and produce the now retired Ms. Denty’s emails and texts to ensure that this key former employee’s records are produced.
Various Housing and Related Documents Refused by HRM
[47] Within Schedule “A” are a number of requests refused by HRM on the basis of relevance. During oral submissions HRM added to this by emphasizing the proportionality principle, particularly in the context of the status of the litigation.
[48] One of the requested documents, a map entitled “Projects on the Cusp” was provided to Annapolis but then returned as HRM stated that it was produced in error. As for the other requests, (excluding the previously canvassed Provincial Panel) they may be summarized as follows:
1. with respect to the Highway 102 West Corridor section of the map depicted in HRM089232-0001, “Projects on the Cusp”, please confirm whether the Annapolis lands are included in the Highway 102 West Corrido;.
2. regarding the statements made in HRM’s Preliminary Population and Housing Analysis dated June 2021 (HRM-089220), advise as to HRM’s position with respect to housing now not being affordable for many residents of HRM;
3. regarding statements made in HRM’s Preliminary Population and Housing Analysis dated June 2021 (HRM-089220), advise as to HRM’s position on priced acceleration and house overvaluation in HRM;
4. regarding statements made in HRM’s Preliminary Population and Housing Analysis dated June 2021 (HRM-089220), advise as to HRM’s position regarding vacancy rates being too low for healthy rental market in HRM;
5. produce all communications between HRM and the Province of Nova Scotia regarding the housing crisis in Halifax, why the Province wanted to come in to address the issue, and any internal communications within HRM regarding the fact that the Province was going to come in and establish the Panel to the extent it relates to Annapolis, the Highway 102 lands or the Blue Mountain Birch Cove Lakes park; and
[49] Once again, part of HRM’s Amended Defence is that it did not initiate secondary planning of the Annapolis lands on September 6, 2016 because, in part, it did not require the lands for housing. Annapolis disputes this and argues that HRM’s housing projections and the current state of housing in HRM are relevant to HRM’s stated reasons for failing to initiate secondary planning. They point to policy S-2 of the 2014 Regional Planning Strategy which required HRM to consider “the need for additional lands” and “the implications for achieving the HRM growth targets” in assessing Annapolis’ rejected application for secondary planning (2014 Regional Planning Strategy, p. 42, exhibit “GG”, Tsakas first affidavit).
[50] The Supreme Court of Canada held that the state’s intention can be evidence of expropriation. At paras. 52 – 54 of the majority’s decision in Annapolis Group Inc. the Court stated:
52 Respectfully said, neither position is correct. The public authority's intention is not an element of the test for constructive takings at common law. Again, the mischief addressed by the doctrine is one of advantage and effects, not that a public authority acted in bad faith or with an otherwise ulterior motive. Indeed, this Court held in CPR that, even if the City's purpose were to "enable the inhabitants to use the corridor for walking and cycling," its bylaw, in effect, neither encouraged trespassing nor prevented the historical and current use of the land (para. 33) and therefore could not be said to have deprived the landowner of all reasonable uses.
53 This does not mean, however, that intention is irrelevant to the inquiry. Indeed, the case law we discuss below suggests that the objectives pursued by the state may be some evidence of constructive taking. Stated differently, the intention to take constructively, if proven by the claimant, may support a finding that the landowner has lost all reasonable uses of their land (inasmuch as a finding of this effect can be supported by evidence that such an effect was intended). But the absence of evidence of the state's intention does not preclude a property holder's claim. It follows that intent may constitute a "material fact" in the context of a constructive taking claim. We stress, however, that the focus of the inquiry must remain on the effects of state action.
54 A brief review of the jurisprudence illustrates the supporting role of intention in assessing constructive taking claims. In Manitoba Fisheries, at p. 111, as we have already recalled, Ritchie J. endorsed a passage from Ulster Transport Authority highlighting the relevance of intention in constructive taking cases. The key portion of this passage merits repeating: "... the relevant prohibition cannot but constitute a taking if my views as to its effect and underlying intention are correct" (emphasis added). Thus the objective pursued by the state was considered (Ulster Transport Authority, at pp. 113 and 116; Manitoba Fisheries, at pp. 111-13) in distinguishing between a mere regulatory prohibition and the constructive taking of a business through the establishment of a public monopoly.
[51] I have kept the above passage in mind along with the earlier quoted para. 72 of the majority Supreme Court of Canada decision in coming to my determination on this motion.
[52] In my view, HRM’s assessment of the growing housing need, while continuing to refuse to permit development of the Annapolis lands, is relevant to assessing its intention for the Annapolis lands both in 2016 and since. In any event, HRM already acknowledged that its assessment of housing needs since 2016 is relevant to the claims in this action. At the March 2023 production motion, the parties agreed, and the Court then ordered HRM to produce “all documents reflecting analysis of actual or projected housing supply or demand within HRM generated as part of the current regional planning process”.
[53] Further, since the Production Order, HRM has produced an expert report which analyzes housing trends and needs in HRM since 2016 in support of the reasonableness of HRM’s decision to refuse secondary planning of the Annapolis Lands (Rowan Faludi expert report at pp. 27-30, exhibit “II”, Tsakas first affidavit).
[54] With all of this in mind, I am of the view that two of the six requests are reasonable, namely:
1. with respect to the Highway 102 West Corridor section of the map depicted in HRM089232-0001, “Projects on the Cusp”, please confirm whether the Annapolis lands are included in the Highway 102 West Corridor; and
2. produce information as to how often growth projections are shared by HRM with Halifax Water and Halifax Transit from 2015 to present and production of those projections.
I would add that the “Projects on the Cusp” document should be handed back to Annapolis.
[55] As for the other four requests, I regard them as overly broad and ill defined. Given my perspective as CMJ, I am particularly receptive of HRM’s arguments in this area, especially now that the scheduled start of trial is in five months and given the overall stage of the litigation. For example, the expert reports filing deadlines have come and gone. To require HRM to produce the kind of material within items 2 – 5 could very well lead to further delays, requests to amend reports and an adjournment of the trial.
Future Serviced Communities Background Studies
[56] Para. 5 of the Production Order reads:
5. As agreed by the parties during the March 21, 2023 Motion, by May 12, 2023, the Defendant shall produce any further documents responsive to the below categories, or confirm there are no further documents for supplementary production:
a. all documents related to the initiation, planning, or continuation of a secondary planning process for the Annapolis lands, and/or lands identified as Urban Settlement Lands in the 2006 or 2014 Regional Planning Strategies or growth areas in the 2014 Regional Planning Strategy;
i. this includes but is not limited to all documents concerning the Future Serviced Communities Background Studies for the Annapolis Lands and these other lands, and in relation to the RFP which HRM issued for these background studies on October 6, 2022.
…
[57] Unfortunately, the parties have been unable to come to terms on production in this area (specific requests identified in Schedule “A”, III). During her July 10th discovery, Ms. Denty said that Council “were concerned about the work on the lands proceeding with the park study happening at the same time” (exhibit “K”, Tsakas first affidavit). The park study is ongoing, carried out by the retained consultants, Stantec. The study will include a land suitability analysis, a watershed study, a mobility study, and water and wastewater analysis, all relating to Annapolis’ lands. Stantec’s final report is anticipated to be completed in or around the time of the start of this trial in the spring of next year.
[58] Annapolis submits that the questions here fall squarely within the scope of the existing Production Order. They say that HRM must produce all non-privileged documents responsive to that the Order, including in response to the questions in Section III of Schedule “A”.
[59] HRM argues that the Future Serviced Communities Background Studies are relevant only to the extent that those documents relate to the “initiation, planning, or continuation of a secondary planning process for the Annapolis lands.” They say this should be apparent from the fact that the studies were included as a sub-paragraph in the Production Order.
[60] HRM points out that the study is ongoing. Accordingly, they submit that Annapolis seeks a draft or unfinished work prepared by an external consultant being carried out now, seven years after the impugned Council resolution of September 6, 2016.
[61] I have considered the competing arguments on this issue and have determined that the Production Order is clear that the Stantec file (together with all of the particular aspects articulated by Annapolis) must be disclosed. The parties agreed to this at the last motion. The Order plainly identifies “…all documents concerning the Future Serviced Communities Background studies …”; to my mind this clearly contemplates the ongoing Stantec park study. Having said this, I am mindful of the fast approaching Finish Date and trial. In the result, and as with all of the production ordered on this motion, the contents shall be up until the date of the motion (November 27, 2023) to be produced on or before the last full business day of this year; December 28, 2023.
Blue Mountain Birch Cove Lakes (BMBC)
Proposed Park Planning Development
[62] Para. 5 of the Production Order went on to include:
…
b. all documents related to the ongoing Regional Plan Review concerning the Annapolis Lands or the proposed BMBC park;
c. all documents concerning discussions with the Federal or Provincial governments concerning the Annapolis Lands or the proposed BMBC park;
d. all documents generated or exchanged with HRM and/or the HRM Regional Council concerning the Annapolis Lands and proposed BMBC park;
e. all documents reflecting analysis of actual or projected housing supply or demand within HRM generated as part of the current regional planning process.
[63] Subsequent to this Annapolis requested documents and communications with Stantec about its BMBC Land Use and Settlement Analysis study. They say this material is relevant to assessing HRM’s intentions for the Annapolis lands. The BMBC Land Use and Settlement Analysis purports to perform a comprehensive study of the BMBC Conceptual Park Area, as defined on Map 11 of the 2014 Regional Municipal Planning Strategy, which includes the Annapolis lands.
[64] The other requests in this category are for internal HRM documents and information about the park planning process and HRM’s attempts to amend the one-year provision in the HRM Charter for park planning purposes. This includes the production of documents and electronic information, including communications and/or work product related to HRM’s Charter Amendment Request as described in the Regional Plan Review Stakeholder Meeting Notes located in HRM’s production.
[65] HRM responds by pointing out that they have produced both the pre-feasibility BMBC Comprehensive Study and the Stantec Land Use and Settlement Analysis. They note that what Annapolis now requests consists of any and all other documentation related to the study, including all drafts and communication exchanged between Stantec and HRM related to that work.
[66] HRM submits that the Land Use and Settlement Analysis was completed approximately six years after the last events referenced in the pleadings. They argue that the study itself would have minimal relevance to what took place prior to September 6, 2016 adding that the working papers, drafts and underlying documents are not relevant. In effect, HRM says that Annapolis’ requests amount to another “fishing expedition”.
[67] In grappling with this aspect of the motion, I return once again to the actual wording of the Production Order coupled with my review of the evidence on this motion (with an emphasis on what has been produced and the demonstrable efforts expended) in the context of where the litigation stands. Although the parties consented to production of “all documents” in these areas, I am satisfied in all of the circumstances that HRM has provided adequate responses. In the result, the request for all drafts and communications between HRM and Stantec amounts to too much, too late. Further, I note that when counsel were queried about this during submissions, it emerged that the retained experts drafts and communications have not been furnished. For consistency I am of the view that the same approach should apply to experts who have not been retained as experts in this litigation.
Remaining Items Identified in the November Correspondence Exhibited in the Latest Affidavits and Schedule “C”
[68] I have reviewed counsels’ letters of last week in the context of all of what has been provided to the Court; i.e., the four affidavits (inclusive of voluminous exhibits), authorities, briefs, handed up materials and oral submissions. With respect to the latest version of Schedule “C”, I am satisfied in all of the circumstances that Ms. Puka’s recent correspondence represents a reasonable effort and that HRM’s responses in these areas have been diligent and are sufficient. To the extent that HRM’s best efforts unearth any more relevant material in answer to these queries, they shall be provided in the manner I have outlined and will repeat in the below conclusion.
Conclusion
[69] By way of conclusion, I refer to the RDAC which Annapolis filed over four years ago. This was met with HRM’s memorandum and I acceded to the parties request to quickly convene a date assignment conference (DAC) and schedule trial dates, then for the fall of last year. Due to the pending Supreme Court of Canada decision, I subsequently ruled – Annapolis Group Inc. v. Halifax (Regional Municipality), 2022 NSSC 87 – that the trial dates had to be re-scheduled to the current dates April 15 – June, 2024. Nevertheless, the matter has been fast tracked, in the sense that the DAC occurred long before discoveries were completed. This was done in order to secure relatively early dates in the context of a massive piece of litigation that is projected to occupy approximately 39 days of trial.
[70] Having said this, the record will reflect that during the case management conference of late last year, I expressed concerns about scheduling a final round of discoveries into the late spring of 2023. The Court acquiesced and then, due to unforeseen circumstances the discovery dates were moved to the summer and the fall of this year.
[71] Also during the case management conference the Court expressed concerns about motions being scheduled beyond the spring. As the record reflects, I ultimately permitted the motions to be set down for September 7. The parties then asked to have the matters adjourned until October 26 and finally to the within date of November 27, 2023. I will acknowledge that the Court’s motivation for agreeing to these requests was the overriding wish that the parties would come to terms on their differences. To their credit, they have over this time reduced the matters in issue. In any event, the outfall of moving the discoveries and motion is that the within decision comes not during the late spring but, rather, the late fall of 2023. Accordingly, in exercising my discretion as CMJ on this motion, I “made the calls” on the various undertakings and requests with this backdrop in mind and with an eye to keeping the trial on the rails.
[72] I would ask Mr. Dunbar to prepare the requisite order, in keeping with the production mandated within this decision. I note that the schedule for the common documents book requires that Annapolis shall provide HRM with its draft index by January 17, 2024. With this in mind and given the Finish Date (January 16, 2024) and looming trial, I repeat that the cutoff date for the documents ordered to be produced shall be November 27, 2023 and that they shall be provided on or before December 28, 2023.
[73] With respect to costs on the motions, I regard the outcomes to be of mixed success and therefor decline to award any costs. In exercising my costs discretion in this manner, I have kept all aspects in mind (including the “deliberative process privilege” issue discussed at para. 28) from my vantage point as the CMJ.
Chipman, J.