IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Eikelenboom et al v. Holstein Canada, 2003 NSSC241
Date: 20031210
Docket: S.T. No. 009454
Registry: Truro
Between:
John and Colleen Eikelenboom, carrying on business as
Eiklyn Farms, and in their personal capacity as the Plaintiffs
Plaintiffs
v.
Holstein Association of Canada, a body corporate,
carrying on business as Holstein Canada
Defendant
D E C I S I O N
Judge: The Honourable Justice Suzanne M. Hood
Heard: July 23, 2003 in Truro, Nova Scotia
Final written submissions: October 16, 2003
Written Decision: December 10, 2003
Counsel: Alain J. Bégin for the plaintiffs
Alan V. Parish, Q.C. for the defendants
By the Court:
[1] Holstein Association of Canada has been sued by one of its members, a Holstein breeder, for damages allegedly arising from a deregistration of a certain animal following a hearing before a panel of the Executive Committee of Holstein Canada. The defendant asks the court to grant summary judgment in its favour dismissing those portions of the claim which relate to the allegations of bias.
[2] Civil Procedure Rule 13 has recently been amended to allow for a summary judgment application to be made by a defendant. The Rule provides as follows:
13.01
After the close of pleadings, any party may apply to the court for a judgment on the ground that:
(a) There is no arguable issue to be tried with respect to the claim or any part thereof;
[3] The decision of Moir, J. in Binder v. Royal Bank, Bank of Montreal and Cohen, 2003 NSSC 174 is the first reported Nova Scotia decision on the newly amended Rule. In that decision at para. 7, Moir, J. says:
The applicant must meet a threshold. Generally, that threshold is met when the case is such that the Court should properly inquire into the presence or absence of a genuine issue... which I would equate with a reasonably arguable issue. Specifically, the threshold is met in cases where ‘there is no genuine issue of material fact requiring trial’. ... Once the threshold is met, the respondent is required to show a real chance of success in its claim or defence. This is not much different from the approach we are used to and, like it, this approach places incentive on both parties to produce evidence justifying their positions.
[4] The first step is for the applicant, in this case the defendant, to show that there is no material dispute on the facts. I conclude in this case that the material facts are not in dispute. It is the effect of these facts upon the law which I conclude is in dispute between the parties. The facts which I conclude are not in dispute are as follows:
1. An animal was registered with Holstein Canada but subsequently there was doubt about the propriety of the animal’s registration and a hearing was convened. Before the hearing convened, counsel for the plaintiffs approached counsel for the Committee convened to conduct the hearing. As a result, one of the panel members stepped down and the hearing proceeded with four members.
2. At the same time, an issue of conflict of interest with respect to another panel member was raised by counsel for the plaintiffs but counsel for the Committee took no further action on it.
3. The hearing commenced and the chair of the panel asked if there were issues with respect to the composition of the panel or its jurisdiction to hold the hearing and related matters. A subject other than the conflict of interest allegation was raised and rejected by the panel.
4. Counsel for the panel asked again before the hearing commenced whether there were other issues about the composition of the hearing panel, etc., and again the issue of bias or conflict of interest was not raised. The hearing did not conclude on the first day and was adjourned and reconvened over one month later. At that time, the issue of the panel continuing with the hearing was again raised and plaintiffs’ counsel did not raise issues of bias or conflict of interest.
[5] I am satisfied that the defendant/applicant has met the threshold test of establishing that there are no material facts in dispute between the parties. The onus then shifts to the plaintiffs to establish that they have a real chance of success on this portion of their claim.
[6] The defence argues that the plaintiffs’ waiver of their right to raise the issues of bias or conflict of interest is so clear that the plaintiffs have no chance of success. I must therefore consider whether the plaintiffs’ argument that the actions at the hearing do not constitute a waiver has a real chance of success.
[7] Although the law with respect to waiver is clear, that law must be applied in each case having regard to the facts of each case. As I have said, the material facts are not in dispute. What was said at the hearing is contained in the transcript of the hearing. What occurred prior to the hearing, although not part of the transcript, does not appear to be in dispute.
[8] In Binder, Moir, J. concluded that summary judgment would have been granted because the claims were prescribed either by a New Brunswick statute of limitations or provisions of the Bank Act of 1980. The application of a limitation period is, in my view, a different exercise than the determination of whether waiver occurred based upon the facts in this case. All the circumstances both before and during the hearing before the Committee must be considered to determine if waiver in fact occurred.
[9] One of the factors to be considered in determining if waiver in fact occurred is whether the issue was raised at the earliest opportunity. The parties’ views on this differ. The plaintiffs say that having raised it with counsel before the hearing satisfied this requirement and failing to raise it again during the hearing cannot overcome that. The defendant says that, having taken no issue with the composition of the panel during the hearing, the plaintiffs waived their right to do so.
[10] I conclude that this is an issue for trial. A “real” chance of success is not to be expressed in percentages. It does not mean that the plaintiffs are likely to succeed at trial or have a better than 50/50 chance of success. At trial, plaintiffs have the onus of establishing their claim on the balance of probabilities. A real chance of success means the possibility of their success is not illusory or unrealistic. It is no more than saying they could succeed and the determination of whether they will or not should be left for the trial. The trial judge will have to examine all the surrounding circumstances. That is not the role of a chambers judge on a summary judgment application.
[11] I therefore dismiss the defendant’s application for summary judgment. Because the amended Rule 13 is new and the decision of Justice Moir in Binder had not been released at the time this matter was argued before me, I exercise my discretion to award no costs.
Hood, J.