Carvery v. Nova Scotia (Attorney General) et al., 2016 NSCA 21

• Judge: Fichaud, Bryson and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 25, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 21;(2016), 371 N.S.R.(2d) 296 (CA)

Carvery v. N.S. (A.G.) (2016), 371 N.S.R.(2d) 296 (CA);

    1169 A.P.R. 296

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MR.036

The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia (appellant/cross respondent) v. David Bruce Carvery (respondent/cross appellant)

(CA 441503; 2016 NSCA 21)

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

Nova Scotia Court of Appeal

Fichaud, Bryson and Scanlan, JJ.A.

March 30, 2016.

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, in a decision reported (2015), 364 N.S.R.(2d) 63; 1146 A.P.R. 63, dismissed the motion for summary judgment with respect to the direct 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. The Province appealed and the plaintiff cross-appealed.

The Nova Scotia Court of Appeal dismissed the appeal and cross-appeal.

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 - The Province appealed and the plaintiff cross-appealed - The Nova Scotia Court of Appeal dismissed the appeal and cross-appeal - See paragraphs 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 (PAC) Act provided that "Except as provided in this Act, proceedings against the Crown are abolished" - The Nova Scotia Court of Appeal interpreted this provision - The court held that s. 25(1) abolished the former procedures for suing the Crown - It did not abolish substantive causes of action - The PAC Act's objective was to simplify the procedure for suing the Crown, not to extinguish claims against the Crown - See paragraphs 28 to 47.

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 (PAC) Act provided that "Except as provided in this Act, proceedings against the Crown are abolished" - The Province of Nova Scotia claimed that s. 25(1) "abolished" causes of action against the Crown, except those expressly listed by s. 4 (i.e., property, contract, tort), which did not mention fiduciary claims (i.e., expressio unius est exclusio alterius) - The Nova Scotia Court of Appeal rejected the Province's submission - Section 4 of the PAC Act was not an exhaustive code of every conceivable cause of action that implicated the Crown - Section 4 did not impliedly abolish or preclude substantive causes of action against the Crown that had independently evolved in the law outside the fields of property, contract and tort - See paragraphs 48 to 61.

Crown - Topic 4427

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Actions to which Act applicable - The Province of Nova Scotia claimed that it was immune from the plaintiff's direct fiduciary liability claim based on the Crown's common law immunity - The Nova Scotia Court of Appeal rejected this argument, stating that "The PAC [Proceedings Against the Crown] Act, s. 25(1), abolished the old procedures that immunized the Crown subject to the sovereign's grace, while ss. 7 and 23 affirmatively subjected the Crown to new procedures: in 1951 the rules of court, today the Civil Procedure Rules. By s. 47(3A) of the Judicature Act, the Civil Procedure Rules have 'the force of law' as subordinate legislation. The Rules permit a plaintiff to have his cause of action - provided it is known to the law - adjudicated by a court, without the defendant's consent. The common law's notion that 'the Crown cannot be sued in its own courts' is ousted by legislation" - See paragraphs 62 to 66.

Crown - Topic 4428

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

Crown - Topic 4542

Actions by and against Crown in right of a province - Capacity of Crown to be sued - Immunity - General - [See fourth Crown - Topic 4427 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See first Crown - Topic 4427 ].

Equity - Topic 3655.2

Fiduciary or confidential relationships - Breach of fiduciary relationship - Vicarious liability - The Nova Scotia Court of Appeal affirmed that the Province of Nova Scotia could not be held vicariously liable for a breach of fiduciary duty by its employee without an accompanying tort - The court stated that "The attribution to a non-fiduciary employer of tort-modelled vicarious liability, for an employee's non-tortious breach of the employee's personal fiduciary duty, is unsupported by the principles that underlie the fiduciary relationship. If the employer has a direct fiduciary duty, or the court treats it as a co-fiduciary, then equitable principles establish other avenues to hold the fiduciary directly accountable, in appropriate cases, for allowing its delegate an opportunity to offend" - See paragraphs 67 to 98.

Statutes - Topic 1554

Interpretation - Construction where meaning is not plain - Implied meaning - Stating one thing implies exclusion of another (expressio unius est exclusio alterius) - [See third Crown - Topic 4427 ].

Cases Noticed:

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

Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General) (2009), 277 N.S.R.(2d) 350; 882 A.P.R. 350; 2009 NSCA 44, refd to. [para. 20].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 25, footnote 23].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 24].

Cragg v. Eisener, [2012] N.S.R.(2d) Uned. 234; 2012 NSCA 101, refd to. [para. 25].

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, dist. [para. 32].

McNeil v. Nova Scotia Board of Censors (1974), 9 N.S.R.(2d) 483; 53 D.L.R.(3d) 259 (C.A.), affd. [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd to. [para. 52].

Nova Scotia (Attorney General) v. Annapolis (County) (1996), 153 N.S.R.(2d) 278; 450 A.P.R. 278 (S.C.), refd to. [para. 53].

B.M.G. v. Nova Scotia (Attorney General) (2007), 250 N.S.R.(2d) 154; 796 A.P.R. 154; 2007 CarswellNS 39; 2007 NSSC 27, affd. (2007), 260 N.S.R.(2d) 257; 831 A.P.R. 257; 2007 NSCA 120, refd to. [para. 54].

Swinamer v. Nova Scotia (Attorney General) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321; 112 D.L.R.(4th) 18, refd to. [para. 55].

Walley v. Walley (1687), 1 Vern. 484; 23 E.R. 609 (Ch.), refd to. [para. 57].

Keech v. Sandford (1726), Sel. Cas. Ch. 61; 25 E.R. 223 (Ch.), refd to. [para. 57].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 57].

Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534; 131 N.R. 321; 6 B.C.A.C. 1; 13 W.A.C. 1, refd to. [para. 57].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 57].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24, refd to. [para. 58].

Broome et al. v. Prince Edward Island, [2010] 1 S.C.R. 360; 400 N.R. 148; 297 Nfld. & P.E.I.R. 24; 918 A.P.R. 24; 2010 SCC 11, dist. [para. 58].

Smith v. Nova Scotia (Attorney General) (2004), 226 N.S.R.(2d) 344; 714 A.P.R. 344; 2004 NSCA 106, refd to. [para. 63].

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119, dist. [para. 69].

3464920 Canada Inc. v. Strother et al., [2007] 2 S.C.R. 177; 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108; 2007 SCC 24, dist. [para. 72].

Andrews et al. v. Keybase Financial Group Inc. et al. (2014), 340 N.S.R.(2d) 239; 1077 A.P.R. 239; 2014 NSSC 31, dist. [para. 72].

National Bank Financial Ltd. v. Potter et al. (2013), 333 N.S.R.(2d) 60; 1055 A.P.R. 60; 2013 NSSC 248, dist. [para. 72].

Davidson v. Noram Capital Management Inc., 2005 CanLII 63766 (Ont. Sup. Ct.), dist. [para. 72].

Osborne v. Harper et al., [2005] B.C.T.C. 1202; 2005 BCSC 1202, dist. [para. 72].

Cuttell v. Bentz, 1986 CanLII 882 (B.C.S.C.), dist. [para. 72].

2475813 Nova Scotia Ltd. v. Rodgers et al. (2001), 189 N.S.R.(2d) 363; 590 A.P.R. 363; 2001 NSCA 12, refd to. [para. 82].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14, refd to. [para. 83].

Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612; 354 N.R. 201; 218 O.A.C. 339; 2006 SCC 52, refd to. [para. 84].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241, refd to. [para. 84].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161; 167 D.L.R.(4th) 577, refd to. [para. 84].

Air Canada v. M & L Travel Ltd., Martin and Vaillant, [1993] 3 S.C.R. 787; 159 N.R. 1; 67 O.A.C. 1, refd to. [para. 89].

Gold v. Rosenberg et al., [1997] 3 S.C.R. 767; 219 N.R. 93; 104 O.A.C. 1, refd to. [para. 89].

Citadel General Life Assurance Co. et al. v. Lloyd's Bank of Canada et al., [1997] 3 S.C.R. 805; 219 N.R. 323; 206 A.R. 321; 156 W.A.C. 321, refd to. [para. 89].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 93].

Statutes Noticed:

Judicature Act, R.S.N.S. 1989, c. 240, sect. 2(g), sect. 41 [para. 43].

Proceedings Against the Crown Act, R.S.N.S. 1989, c. 360, sect. 2, sect. 3(3), sect. 4, sect. 5, sect. 7, sect. 16(1), sect. 18, sect. 23, sect. 25, sect. 26 [para. 26].

Counsel:

Alexander Cameron, for the appellant/cross respondent;

Bruce Outhouse, Q.C., and Justin E. Adams, for the respondent/cross appellant;

Michael Dull, watching brief, for the respondent.

This appeal was heard in Halifax, N.S., on January 25, 2016, before Fichaud, Bryson and Scanlan, JJ.A., of the Nova Scotia Court of Appeal. The following decision was delivered for the court by Fichaud, J.A., on March 30, 2016.