Carvery v. Nova Scotia (Attorney General) et al., 2015 NSSC 199

• Judge: Campbell, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 07, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 199;(2015), 364 N.S.R.(2d) 63 (SC)

Carvery v. N.S. (A.G.) (2015), 364 N.S.R.(2d) 63 (SC);

    1146 A.P.R. 63

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.024

David Bruce Carvery (plaintiff) v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia and Cezar Lalo (defendants)

(Hfx. No. 244401; 2015 NSSC 199)

Indexed As: Carvery v. Nova Scotia (Attorney General) et al.

Nova Scotia Supreme Court

Campbell, J.

July 8, 2015.

Summary:

The plaintiff alleged that a probation officer sexually abused him for seven months in 1975. The plaintiff sued the probation officer and his employer, the Province of Nova Scotia, for damages for breach of fiduciary duty. The plaintiff also alleged that the Province was vicariously liable for breaches of fiduciary duty by its employee. The Province moved for summary judgment to have the claims dismissed.

The Nova Scotia Supreme Court dismissed the motion for summary judgment with respect to the claim against the Province for breaches of fiduciary duty. That claim could proceed. However, the motion for summary judgment with respect to the claim that the Province was responsible for a breach of fiduciary duty by its employee was granted.

Crown - Topic 4427

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Actions to which Act applicable - The plaintiff alleged that a probation officer sexually abused him in 1975 - The plaintiff sued the Province of Nova Scotia for damages alleging breaches of fiduciary duties and vicarious liability for breach of fiduciary duty by the probation officer - The Province moved for summary judgment - The Nova Scotia Supreme Court held that the Proceedings Against the Crown Act did not insulate the Province of Nova Scotia from liability for breaches of fiduciary duty (i.e., an equitable claim); therefore, the summary judgment motion respecting that claim was dismissed - The Province could not be held responsible for a breach of fiduciary duty by its employee; therefore, the motion for summary judgment with respect to that claim was granted - 1 to 11 and 28 to 98.

Crown - Topic 4427

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Actions to which Act applicable - Section 25(1) of the Proceedings Against the Crown Act (N.S.) provided that "Except as provided in this Act, proceedings against the Crown are abolished" - The Nova Scotia Supreme Court interpreted this provision - The court stated, inter alia, that the procedures referenced in s. 25(1) were the old procedures and not the substantive rights - "The modes of procedures, including the old petition of right were abolished. It was no longer necessary to use the actual petition as a procedure but the substantive rights embodied in the ancient petition were not intended to be extinguished ... Section 3(3) preserves the rights that existed as of 1951 [when the Proceedings Against the Crown Act was originally enacted] to take action against the Crown, subject to the other provisions of the act. The petition of right was such a right. It would permit a claim to be made in equity against the Crown. The procedure involved has been abolished by s. 25(1) along with the other old writs and procedures but the right itself was preserved" - The court concluded, therefore, that the Proceedings Against the Crown Act did not insulate the Crown from liability for a breach of fiduciary duties - See paragraphs 72 to 85.

Crown - Topic 4428

Actions by and against Crown in right of a Province - Proceedings against the Crown Acts - Limitations on application of Acts - [See both Crown - Topic 4427 ].

Crown - Topic 4461

Actions by and against Crown in right of a province - Petition of right - General - The Nova Scotia Supreme Court discussed generally the right to sue the government in Nova Scotia and the concept of "petition of right" and whether that concept applied to equitable claims against the Province - See paragraphs 41 to 86.

Equity - Topic 3641

Fiduciary or confidential relationships - Breach of fiduciary relationship - General - The Nova Scotia Supreme Court stated that "There can be little question that in law, a claim for a breach of fiduciary duty is not a tort claim. It is an equitable one that 'evolved from the jurisdiction of the Court of Chancery' ... See paragraph 33.

Equity - Topic 3655.2

Fiduciary or confidential relationships - Breach of fiduciary relationship - Vicarious liability - The Nova Scotia Supreme Court held that the Province could not be vicariously liable for a breach of fiduciary duty by its employee - See paragraphs 86 to 95.

Cases Noticed:

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 14, footnote 5].

C.A. et al. v. Critchley et al. (1998), 113 B.C.A.C. 248; 184 W.A.C. 248; 166 D.L.R.(4th) 475 (C.A.), refd to. [para. 14, footnote 6].

Ahmed v. Dalhousie College and University (2014), 350 N.S.R.(2d) 356; 1105 A.P.R. 356; 2014 NSSC 330, refd to. [para. 29, footnote 7].

Ritchie (Ross) Ltd. v. Sydney Steel Corp. (2001), 194 N.S.R.(2d) 345; 606 A.P.R. 345 (C.A.), refd to. [para. 31, footnote 8].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 33, footnote 10].

Earl of Oxford's Case (1615), 1 Ch. Rep. 1, refd to. [para. 34, footnote 13].

Dudley (Lord) v. Dudley (Lady) (1705), Prec. Ch. 241, refd to. [para. 34, footnote 13].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 37, footnote 17].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 37, footnote 17].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 37, footnote 17].

Feather v. R. (1865), 6 B. & S. 257, refd to. [para. 43, footnote 24].

MacNeil v. Nova Scotia Board of Censors (1974), 9 N.S.R.(2d) 483 (C.A.), refd to. [para. 45, footnote 25].

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) (1995), 137 N.S.R.(2d) 197; 391 A.P.R. 197 (C.A.), refd to. [para. 46, footnote 26].

Uniacke v. Dickson (1848), 1 N.S.R. 287 (S.C.), refd to. [para. 51, footnote 29].

Richard et al. v. British Columbia (2009), 270 B.C.A.C. 61; 454 W.A.C. 61; 93 B.C.L.R.(4th) 87 (C.A.), refd to. [para. 56, footnote 34].

M.D. et al. v. Ontario, [2010] O.T.C. Uned. 1726; 2010 ONSC 1726, refd to. [para. 59, footnote 37].

Slark v. Ontario - see M.D. et al. v. Ontario.

Pawlett v. Attorney General (1668) 145 E.R. 550 (Ex. Ct.), refd to. [para. 63, footnote 40].

Dyson v. Attorney General, [1911] 1 K.B. 410 (C.A.), refd to. [para. 63, footnote 42].

Nova Scotia (Attorney General) v. Annapolis (County) (1996), 153 N.S.R.(2d) 278; 450 A.P.R. 278 (S.C.), affd. (1996), 154 N.S.R.(2d) 383; 452 A.P.R. 383 (C.A.), refd to. [para. 74, footnote 44].

Daigle and Rideout v. New Brunswick (1979), 25 N.B.R.(2d) 261; 51 A.P.R. 261 (Q.B.), refd to. [para. 76, footnote 46].

McCoy (E.E.) Co. v. New Brunswick (1979), 25 N.B.R.(2d) 255; 51 A.P.R. 255 (Q.B.), refd to. [para. 77, footnote 48].

Crawford et al. v. Agricultural Development Board (N.B.) et al. (1993), 136 N.B.R.(2d) 70; 347 A.P.R. 70 (T.D.), not folld. [para. 78, footnote 49].

Lévesque v. New Brunswick et al. (2011), 372 N.B.R.(2d) 202; 961 A.P.R. 202; 2011 NBCA 48, refd to. [para. 79, footnote 52].

Wyman v. Paterson, [1900] A.C. 217 (H.L.), refd to. [para. 90, footnote 58].

Statutes Noticed:

Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18, sect. 4(1) [para. 76].

Proceedings Against the Crown Act, R.S.N.S. 1989, c. 360, sect. 3(3) [para. 66]; sect. 25(1) [para. 31].

Authors and Works Noticed:

Clode, Walter, The Law and Practice of Petitions of Right (1887), p. 141 [para. 57, footnotes 35, 36].

Hogg, Peter W., Monahan, Patrick J., and Wright, Wade K., Liability of the Crown (4th Ed. 2011), pp. 5 [para. 42, footnote 19]; 6 [para. 63, footnote 40]; 8 [para. 51, footnote 30]; 9 [para. 52, footnote 32]; 342, fn. 8 [para. 84, footnote 55].

Holdsworth, William, History of English Law, generally [paras. 60, 61, footnotes 38, 39]; p. 41 [para. 60, footnote 38].

Hutchins, Peter, Schulze, David, and Hilling, Carol, When Do Fiduciary Obligations to Aboriginal People Arise? (1995), 59 Sask. L. Rev. 97, generally [para. 13, footnote 3].

McLaurin, C.C., The Bar as Litigant (1936), 14 Can. Bar Rev. 606, generally [para. 48, footnote 27].

Ng, Michael, Fiduciary Duties (2013), pp. 1-1 [para. 33, footnote 9]; 7-11 [para. 89, footnote 57].

Rotman, Leonard I., Fiduciary Law (2005), p. 371 [para. 92, footnote 60].

Rotman, Leonard I., Provincial Fiduciary Obligations to First Nations: The Nexus Between Governmental Power and Responsibility (1994), 32 Osgoode Hall L. Rev. 735, generally [para. 13, footnote 3].

Scane, Ralph E., Trustees Duties, Powers and Discretions - Power to Delegate and Duty to Account, in Special Lectures of the Law Society of Upper Canada (1980), pp. 45 to 46 [para. 90, footnote 59].

Slattery, Brian, Understanding Aboriginal Rights (1987), 66 C.B.R. 727, p. 755 [para. 13, footnote 3].

Street, Harry, Governmental Liability (1953), p. 3 [para. 43, footnote 22].

Counsel:

Bruce Quthouse, Q.C., and Justin Adams, for the plaintiff, Michael Dull and Mattie Carter (watching brief only);

Alex Cameron, for the defendants.

This matter was heard in Halifax, N.S., on May 7, 2015, before Campbell, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 8, 2015.