IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2006 NSSC 181
Date: 20060517
Docket: SH 184701
Registry: Halifax
Between:
Cherubini Metal Works Limited, a body corporate
Plaintiff
v.
The Attorney General of Nova Scotia representing her
Majesty the Queen in Right of the Province of Nova Scotia,
The United Steel Workers of America and The United Steel
Workers of America, Local 4122
Defendants
Judge: The Honourable Justice C. Richard Coughlan
Heard: May 15, 2006, in Halifax, Nova Scotia
Decision: May 17, 2006 (Orally) (Re: Application to Strike Notices of Examination)
Written Release: June 15, 2006
Counsel: George W. MacDonald, Q.C. and Michelle C. Awad, for the plaintiff, Cherubini Metal Works Limited
Michael T. Pugsley, for the defendant, Attorney General of Nova Scotia
Raymond F. Larkin, Q.C., for the defendants, United Steel Workers of America and the United Steel Workers of America, Local 4122
Coughlan, J.: (Orally)
[1] Cherubini Metal Works Limited sued the Attorney General of Nova Scotia and the United Steelworkers of America and Local 4122 of the Union. The claims against the Attorney General include the torts of abuse of public authority, conspiracy, negligence and intentional interference with economic interests of the plaintiff.
[2] The plaintiff issued Notices of Examination for discovery of Ken Estabrooks and Blanchard Fralic, who were members of the Board of Examiners appointed pursuant to the Stationary Engineers Act, R.S.N.S. 1989, c. 440. The Attorney General applied to have the Notices of Examination struck.
[3] There is no question Nova Scotia has broad discovery rules. As Matthews, J.A. stated in Upham v. You (1986) , 73 N.S.R. (2d) 73 (N.S.S.C.-A.D.) at p. 79:
The Supreme Court of this province has consistently held that the Rules relating to discovery of persons and the production of documents should be interpreted liberally to give effect to full disclosure. See for example, Imperial Oil Ltd. v. Nova Scotia Light & Power Co. Ltd. (1973), 41 D.L.R. (3d) 594; Imperial Oil Ltd. v. Nova Scotia Light & Power Co. Ltd. (1974), 10 N.S.R. (2d) 693; 2 A.P.R. 693 and on appeal by p. 679; Swinamer v. Canadian General Insurance Company (supra); McCarthy v. Board of Governors of Acadia University (1976), 22 N.S.R. (2d) 381; 31 A.P.R. 381; and Schwartz v. Royal Insurance Company (1978), 26 N.S.R. (2d) 223; 40 A.P.R. 223.
Jones, J.A., said in Central Mortgage & Housing Corporation v. Foundation Company of Canada Limited (1982), 54 N.S.R. (2d) 43; 112 A.P.R. 43, at p. 49:
Coupled with the requirements under the Rules for complete disclosure and inspection of documents, interrogatories, admissions, notice of experts’ reports, and pre-trial conferences, it is apparent that our Rules are designed to ensure the fullest possible disclosure of the facts and issues before trial and thereby avoid the element of surprise. Whereas the former Rules presented pre-trial disclosure of evidence I think one can now say the opposite is true. The object is to avoid surprise, simplify the issues and, hopefully, discourage the need for continued litigation ...
[4] However, there are limits on the extent of discovery. In this case, we are dealing with Notices of Examination on members of an administrative tribunal.
[5] In dealing with the confidentiality of deliberations of administrative tribunals, Gonthier, J. stated in giving the Court’s decision in Tremblay v. Quebec (C.A.S.), [1992] 1 S.C.R. 952 at p. 965:
... Accordingly, the very special way in which the practice of administrative tribunals has developed requires the Court to become involved in areas into which, if a judicial tribunal were in question, it would probably refuse to venture.
and at p. 966:
Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of course, secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice. This is indeed the conclusion at which the majority of the Court of Appeal arrived, at pp. 2074-75:
[TRANSLATION] However, this confidentiality yields to application of the rules of natural justice, as observance of these rules is the bedrock of any legal system.
In exceptional cases, therefore, the confidentiality requirement may be lifted when good grounds for doing so are first submitted to the tribunal.
[6] In determining whether the secrecy is to be lifted, Gonthier, J. stated in Tremblay v. Quebec (C.A.S.), supra, at p. 973, “what is crucial is to determine the actual situation prevailing in the body in question”.
[7] In dealing with how to determine whether an appropriate case for discovery exists, valid reasons must be established, generally by affidavit evidence. As Freeman, J.A. stated in giving the Court’s judgment in Waverley (Village Commissioners) et al. v. Kerr et al. (1994), 129 N.S.R. (2d) 298 (C.A.) at p. 303:
I would conclude, accepting the recent authority of Tremblay and Ellis-Don, that a restricted right of discovery of administrative decision-makers or members of decision-making tribunals does exist, and that is it not necessarily limited to questions of procedure rather than the subjective decision-making process. A distinction exists between discovery, which is a somewhat unfocused fact gathering exercise, and the examination of witnesses in the course of a judicial review, when issues are more defined and questions must be relevant to them. In either case, discovery or testimony, a proper evidentiary foundation must be created, generally by affidavit evidence, to establish that valid reasons exist for concern that there has been a want of natural justice or procedural fairness, or that the discretionary authority has been otherwise exceeded. I am aware of no authority for the discovery examination of a discretionary decision-maker under a statute when the issue is whether his or her authority was properly exercised, although there is a clear analogy with the review of adjudicative decisions. ...
[8] In the Waverley case, the Court was dealing with an application pursuant to Civil Procedure Rule 56. Here, we are dealing with an action based in tort. However, as noted above, in either case a proper evidentiary foundation must be created. Once a person for whom discovery is sought establishes he or she is to be examined as a decision maker, the onus then shifts to the person seeking the discovery to establish the proper evidentiary foundation. As Justice Freeman stated in Waverley, “Valid reasons, to my opinion, would be reasons that prima facie rebut the presumption of regularity.”
[9] Has the plaintiff established the necessary proper evidentiary foundation?
[10] By decision dated April 25, 2000, the Board denied the plaintiff’s request for issuance of restricted certifications of qualification without written examination of certain employees of the plaintiff. The plaintiff appealed to the Minister as permitted by the Stationary Engineer Act and the appeal was denied.
[11] On the application herein, John Siggers and Joseph Simms were cross-examined on their affidavits which were filed in the application.
[12] Mr. Siggers commenced his employment with the Department of Labour of Nova Scotia on May 1, 2000. In his affidavit, Mr. Siggers deposed in paragraph numbered 3:
THAT I have no recall at all of providing the Panel with any opinion or recommendation to deny the grand-fathering application.
[13] Of course, he would not have had input into the April 25, 2000 decision as he only commenced employment with the Department on May 1, 2000, after the Board made the particular decision. However, Mr. Siggers did testify the atmosphere at Board meetings was “a very relaxed type of atmosphere”. He agreed on cross-examination that at discovery he stated he would attend meetings of the Board of Examiners and provide information to the Board, and gave the following evidence at p. 91 of the discovery transcript:
Q. Did you make recommendations to the board?
A. I think I did probably have, yeah.
Q. Did Joe Simms?
A. Probably, yeah.
[14] Mr. Siggers said we (he and Mr. Simms), “We were really kind of helping them, or assisting them.”
[15] At paragraph numbered 4 of his affidavit, he deposed:
THAT with respect to the decision of the Minister that dismissed the appeal from the Stationary Engineers Panel, I gave no recommendation or opinion to the Minister at all.
[16] On cross-examination, he testified he gave information to Mr. Chown, his supervisor, and some of that information was used by the Minister in dealing with the appeal.
[17] Joseph Simms deposed in his affidavit at paragraph numbered 2, that he did not have input into the decisions of the Board of Examiners or Minister regarding the grand-fathering application.
[18] In Tremblay v. Quebec (C.A.S.), supra, in dealing with administrative law decision making, Gonthier, J. stated at p. 969, in commenting on the earlier case of IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282:
Relying on this description, the Court weighed the advantages and disadvantages of the OLRB practice in holding such full Board meetings. Since any process of consultation may have the effect of “influencing” decision-makers, the Court concluded at p. 333 that what should be looked at is not the question of influence but that of constraint:
... the relevant issue in this case is not whether the practice of holding full board meetings can cause panel members to change their minds but whether this practice impinges on the ability of panel members to decide according to their opinions. ...
[19] There is no evidence before me of any constraint on Board members’ ability to decide according to their opinions.
[20] The applicant has not established the proper evidentiary foundation for the discoveries.
[21] It is also evident from the letter from Ms. Awad, of counsel for the applicant, to Mr. Pugsley dated November 8, 2005, the very broad nature of the discovery contemplated by the plaintiff, which include:
... questions about their backgrounds, experience on the Board generally, the information typically received in relation to Board decisions, previous Board dealings regarding application similar to those made by Amherst Fabricators Ltd., the information received in relation to matters involving Amherst Fabricators Ltd., any other matters considered in relation to Amherst Fabricators Ltd., and how Amherst Fabricators Ltd. was dealt with in comparison to other employers in similar situations.
[22] These questions certainly touch on matters of substance or the decision maker’s thinking on such matters.
[23] The application is allowed and the discovery notices are struck.
_____________________________
Coughlan, J.