Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al., 2007 NSCA 37

• Judge: Roscoe, Cromwell and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 05, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSCA 37;(2007), 253 N.S.R.(2d) 134 (CA)

Cherubini Metal v. N.S. (A.G.) (2007), 253 N.S.R.(2d) 134 (CA);

    807 A.P.R. 134

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. AP.010

Cherubini Metal Works Limited, a body corporate (appellant) v. The Attorney General of Nova Scotia representing Her Majesty The Queen in Right of the Province of Nova Scotia (respondent)

(CA 270800; 2007 NSCA 37)

Indexed As: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

Roscoe, Cromwell and Oland, JJ.A.

April 5, 2007.

Summary:

A union local filed numerous grievances against Amherst Fabricators (now Cherubini), which resulted in the Attorney General issuing compliance orders under the Occupational Health and Safety Act. Cherubini sued the Attorney General, the union and the union local, alleging negligence, conspiracy and intentional interference with Cherubini's economic interests. Cherubini issued Notices of Examination to two members of the Board of Examiners appointed under the Stationary Engineers Act. The Attorney General applied to strike the Notices.

The Nova Scotia Supreme Court, in a judgment reported (2006), 248 N.S.R.(2d) 46; 789 A.P.R. 46, allowed the application and struck the Notices of Examination. Cherubini appealed.

The Nova Scotia Court of Appeal dismissed the appeal, agreeing that there was no evidence to justify lifting the rule of deliberative secrecy that protected the members from being compelled to testify at discovery.

Administrative Law - Topic 552.1

The hearing and decision - Decisions of the tribunal - Deliberative secrecy - [See Practice - Topic 4250.3 ].

Practice - Topic 4250.3

Discovery - Examination - Persons who may be examined - Administrative tribunal members or personnel - A union local filed grievances against Amherst Fabricators (now Cherubini), which resulted in the Attorney General issuing compliance orders under the Occupational Health and Safety Act - Cherubini sued the Attorney General, the union and the union local, alleging negligence, conspiracy and intentional interference with Cherubini's economic interests - Cherubini issued Notices of Examination to two members of the Board of Examiners appointed under the Stationary Engineers Act - The trial judge allowed the Attorney General's application to strike the Notices of Examination, applying the principle of deliberative secrecy - Cherubini failed to establish an evidentiary foundation to lift the deliberative secrecy, where there was no evidence of any constraint on the Board members' ability to decide according to their opinions - The Nova Scotia Court of Appeal held that the principle of deliberative secrecy applied, whatever the forum, whenever evidence was sought as to how or why an administrative tribunal reached a decision - The principle extended to the process of decision-making as well as the decision - Whether the evidence was sought in judicial review proceedings or in civil litigation (tort action) did not matter - The threshold for lifting deliberative secrecy in a tort action was that "there must be evidence of a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed and that the proposed discovery will afford evidence of it", which was slightly different than the threshold in an administrative law proceeding - The court agreed that Cherubini established no evidentiary basis to lift deliberative secrecy.

Cases Noticed:

Garth v. Halifax (Regional Municipality) (2006), 245 N.S.R.(2d) 108; 777 A.P.R. 108 (C.A.), refd to. [para. 11].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 11].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201, refd to. [para. 14].

Agnew v. Ontario Association of Architects (1987), 26 O.A.C. 354; 64 O.R.(2d) 8 (Div. Ct.), refd to. [para. 14].

Tremblay v. Commission des affaires sociales et autre, [1992] 1 S.C.R. 952; 136 N.R. 5; 47 Q.A.C. 169, refd to. [para. 15].

Nova Scotia (Attorney General) v. Royal Commission (Marshall Inquiry), [1989] 2 S.C.R. 788; 100 N.R. 73; 93 N.S.R.(2d) 271; 242 A.P.R. 271, refd to. [para. 15].

MacKeigan v. Hickman - see Nova Scotia (Attorney General) v. Royal Commission (Marshall Inquiry).

Stevens v. Canada (Attorney General) (2000), 187 F.T.R. 228 (Protho.), affd. (2002), 215 F.T.R. 228 (F.C.), refd to. [para. 21].

Stevens v. Canada (Attorney General) (2003), 241 F.T.R. 108 (F.C.), refd to. [para. 21].

Néron v. Comeau, [2004] Q.J. No. 13590 (S.C.), refd to. [para. 21].

Apotex Inc. v. Alberta et al. (2006), 384 A.R. 88; 367 W.A.C. 88 (C.A.), refd to. [para. 21].

R. v. Celmaster, [1994] B.C.J. No. 287 (S.C.), refd to. [para. 30].

Waverley (Village Commissioners) et al. v. Nova Scotia (Minister of Municipal Affairs) et al. (1994), 129 N.S.R.(2d) 298; 362 A.P.R. 298 (C.A.), refd to. [para. 32].

Payne v. Human Rights Commission (Ont.) (2000), 136 O.A.C. 357; 192 D.L.R.(4th) 315 (C.A.), refd to. [para. 36].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (2006 Looseleaf Update), vol. 2, s. 6.5620 [para. 36].

Hawkins, R.E., Behind Closed Doors II: The Operation Problem - Deliberative Secrecy, Statutory Immunity and Testimonial Privilege (1996), 10 Can. J. Admin. L & Pract. 39, pp. 42 to 49 [para. 14].

Counsel:

Michelle Awad, for the appellant;

Michael Pugsley, for the respondent.

This appeal was heard on January 19, 2007, at Halifax, N.S., before Roscoe, Cromwell and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On April 5, 2007, Cromwell, J.A., delivered the following judgment for the Court of Appeal.