Green v. T&T Inspections & Engineering Ltd. et al., (2013) 334 N.S.R.(2d) 127 (CA)

• Judge: Saunders, Hamilton and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 17, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 334 N.S.R.(2d) 127 (CA);2013 NSCA 107

Green v. T&T Inspections & Eng. (2013), 334 N.S.R.(2d) 127 (CA);

    1059 A.P.R. 127

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. SE.056

T & T Inspections & Engineering Ltd., a body corporate, and Alco Industrial Inc., a body corporate (appellants) v. Donald Campbell Green (respondent)

(CA 414426; 2013 NSCA 107)

Indexed As: Green v. T&T Inspections & Engineering Ltd. et al.

Nova Scotia Court of Appeal

Saunders, Hamilton and Bryson, JJ.A.

September 17, 2013.

Summary:

The plaintiff sued for damages for a workplace injury in Saskatchewan when a "rod hook" fractured and penetrated his skull. The defendants were the companies that conducted non-destructive testing and repaired the "rod hook". The plaintiff elected trial by a jury. The defendants moved under rule 52.02(5)(b) to have the trial tried by judge alone due to the complexity of the expert evidence to be called at trial. At issue was whether the degree of complexity was such as to deny the plaintiff his prima facie right to a jury trial.

The Nova Scotia Supreme Court, in a judgment reported (2012), 315 N.S.R.(2d) 173; 998 A.P.R. 173, allowed the motion and directed a trial by judge alone. The trial judge made an advance ruling on the admissibility and treatment of the plaintiff's intended expert medical evidence. The defendants applied for leave to appeal.

The Nova Scotia Court of Appeal granted leave to appeal notwithstanding the normal rule of not permitting appeals from interlocutory decisions made during the course of the trial. The court heard the appeal on its merits and dismissed the appeal.

Practice - Topic 8875

Appeals - Leave to appeal - From allowance or dismissal of interlocutory application - The trial judge, two months before the scheduled trial date, made an interlocutory evidentiary ruling on the admissibility and treatment of the plaintiff's intended expert medical evidence - The defendants sought leave to appeal - The Nova Scotia Court of Appeal, although granting leave in the unusual circumstances of the case, stated that "rulings made during the course of a trial respecting the admissibility or sufficiency of evidence are not regarded as appealable decisions. Instead, they constitute grounds of appeal once judgment has been rendered. Trial judges are faced with having to make any number of rulings during the course of a proceeding; not only rulings concerning the admissibility of evidence but decisions as to scheduling witnesses; granting adjournments; permitting an expert to give opinion evidence; deciding important matters during a voir dire; or settling the order of calling evidence and arguments, to name just a few. Permitting appeals on such rulings during the course of the trial has long been seen as completely impractical and sure to create havoc in the workings of both trial and appellate courts. ... there is a further reason why such appeals should not be entertained. That is because one does not know if an allegedly wrong evidentiary ruling is material to the case until there is a decision on the merits" - See paragraphs 3 to 4.

Practice - Topic 8985

Appeals - When appeal available - From interlocutory ruling - [See Practice - Topic 8875 ].

Practice - Topic 8986

Appeals - When appeal available - From preliminary, procedural and evidentiary rulings - The plaintiff brought a negligence action for damages for a workplace injury - The trial judge made an advance ruling on the admissibility and treatment of expert medical evidence proffered by the plaintiff - He directed the parties as to the sequence, manner and extent to which the reports prepared by the plaintiff's experts and the two defendants' experts could be used at trial - The defendants sought leave to appeal the interlocutory ruling - The Nova Scotia Court of Appeal granted leave in the unusual circumstances of the case (contrary to normal rule of no appeal from an interlocutory decision), but dismissed the appeal - The litigation was under case management for years - The case management judge had already given directions on the filing and sequence of a variety of experts' reports - The trial judge's "role in sorting out the impasses and ensuring that the matter moved forward efficiently and fairly to all concerned was largely fact-driven and required a sensible and effective exercise of judicial discretion" - The trial judge "did not err in principle and his decision and confirmatory order have not produced a patent injustice".

Cases Noticed:

Children's Aid Society of Halifax v. L.H. (1989), 90 N.S.R.(2d) 44; 230 A.P.R. 44 (C.A.), refd to. [para. 3].

Goodine v. Milk Marketing Board (N.B.) (2002), 251 N.B.R.(2d) 5; 654 A.P.R. 5; 2002 NBCA 38, refd to. [para. 3].

Heron v. Smith, 2003 NSCA 82, refd to. [para. 3].

Sewell v. Sewell (2010), 358 N.B.R.(2d) 27; 924 A.P.R. 27; 2010 NBCA 32, refd to. [para. 3].

Counsel:

Jean McKenna, for the appellant T&T Inspections and Engineering Ltd.;

Anne E. Smith, Q.C., for the appellant Alco Industrial Inc.;

Jamie MacGillivray, for the respondent.

This application for leave to appeal and appeal were heard on September 17, 2013, at Halifax, N.S., before Saunders, Hamilton and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On September 17, 2013, the judgment of the Court was delivered orally and the following written reasons were filed by Saunders, J.A., on September 24, 2013.