Cape Breton Explorations Ltd. v. Nova Scotia (Attorney General) et al., (2014) 345 N.S.R.(2d) 395 (CA)

• Judge: Saunders, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 03, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 345 N.S.R.(2d) 395 (CA);2014 NSCA 53

Cape Breton Explorations v. N.S. (A.G.) (2014), 345 N.S.R.(2d) 395 (CA);

    1092 A.P.R. 395

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JN.004

Cape Breton Explorations Ltd. (appellant) v. The Attorney General of Nova Scotia, Nova Scotia Power Incorporated and The Nova Scotia Utility and Review Board (respondents)

(CA 416544; 2014 NSCA 53)

Indexed As: Cape Breton Explorations Ltd. v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

Saunders, Farrar and Bryson, JJ.A.

June 3, 2014.

Summary:

Nova Scotia Power Inc. (NSPI) applied to the Nova Scotia Utility and Review Board (Board) for approval of a $93 million capital expenditure for a project in which Cape Breton Explorations Ltd. (CBEx) was an unsuccessful bidder. NSPI sought confidential treatment of a large volume of documents filed with its application. The Board approved the confidentiality of most of the information. CBEx appealed the approval decision, arguing, inter alia, that the Board erred in ordering that the information remain confidential. NSPI applied for an order that the information remain confidential on the appeal.

The Nova Scotia Court of Appeal, in a judgment reported (2013), 337 N.S.R.(2d) 271; 1067 A.P.R. 271, held that it had jurisdiction to grant the confidentiality order sought. However, the court remitted the issue of confidentiality of information at the hearing of the application to the Board, as the Board's perfunctory reasons for granting a confidentiality order were not apparent and did not permit meaningful appellate review. Once the expanded reasons were provided, NSPI could bring a confidentiality motion respecting the appeal before a Chambers judge. NSPI moved for a confidentiality order pending the appeal.

The Nova Scotia Court of Appeal allowed NSPI's motion and issued the requested confidentiality order pending the hearing of the appeal to preserve the status quo.

Courts - Topic 1443

Administration - Documents filed by parties - Public right of access - General - [See Evidence - Topic 3007 ].

Evidence - Topic 3007

Documentary evidence - Confidentiality orders - General - Nova Scotia Power Inc. (NSPI) applied to the Nova Scotia Utility and Review Board (Board) for approval of a $93 million capital expenditure for a project in which Cape Breton Explorations Ltd. (CBEx) was an unsuccessful bidder - NSPI sought confidential treatment of a large volume of documents filed with its application - The Board approved a confidentiality order for most of the information - CBEx appealed the approval decision, arguing, inter alia, that the Board erred in ordering that the information remain confidential - NSPI applied for an order that the information remain confidential on the appeal - The Court of Appeal held that it had jurisdiction to grant the confidentiality order sought (Civil Procedure Rules 85.04, 90.02(1), 90.37(15)), but remitted the issue of confidentiality of information at the hearing of the application to the Board, as the Board's perfunctory reasons for granting a confidentiality order were not apparent and did not permit meaningful appellate review - Once the expanded reasons were provided, NSPI could bring a confidentiality motion respecting the appeal before a Chambers judge - On a further motion, the Nova Scotia Court of Appeal granted the requested confidentiality order pending the appeal on the merits, stating that "Our Confidentiality Order is issued to maintain the current status quo, preserve and protect the record as directed and thereby permit this Court to properly and fairly decide the matters in dispute in this case at such time as the appeal is ultimately heard." - See paragraphs 1 to 3.

Public Utilities - Topic 4530

Public utility commissions or corporations (incl. private providers) - Practice and procedure - Evidence - Confidentiality - [See Evidence - Topic 3007 ].

Counsel:

Richard Stephenson and Michael Fenrick, for the appellant;

Edward Gores, Q.C., for the respondent, Attorney General of Nova Scotia;

Daniel M. Campbell, Q.C., for the respondent, Nova Scotia Power Inc.;

Richard Melanson, for the respondent, Nova Scotia Utility and Review Board.

This motion was heard on May 20, 2014, at Halifax, N.S., before Saunders, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On June 3, 2014, the following judgment was delivered by the Court.