Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al., (2008) 269 N.S.R.(2d) 238 (SC)

• Judge: Duncan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 08, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 269 N.S.R.(2d) 238 (SC);2008 NSSC 284

Cherubini Metal v. N.S. (A.G.) (2008), 269 N.S.R.(2d) 238 (SC);

    860 A.P.R. 238

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.032

Cherubini Metal Works Limited (plaintiff) v. The Attorney General of Nova Scotia (defendant) and Cal Luedee, The United Steel Workers of America and The United Steel Workers of America, Local 4122 (applicants)

(SH 184701; 2008 NSSC 284)

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

Nova Scotia Supreme Court

Duncan, J.

September 9, 2008.

Summary:

A union local filed numerous grievances against Amherst Fabricators (now Cherubini), which resulted in the province issuing compliance orders under the Occupational Health and Safety Act. Cherubini sued the province, the national union and the union local, alleging negligence, conspiracy and intentional interference with Cherubini's economic interests. The unions applied under rule 13.01 for summary judgment dismissing the claim, submitting that the issues in dispute arose out of the collective agreement and were within the exclusive jurisdiction of an arbitrator under the grievance and arbitration process, that the issues raised in Cherubini's claim were settled by binding mediation or arbitration, that the unions did not owe a duty of care, and the civil conspiracy action should be dismissed because it should not be extended to the fact situation in this case.

The Nova Scotia Supreme Court, in a judgment reported (2006), 246 N.S.R.(2d) 283; 789 A.P.R. 283, dismissed the application, denying summary judgment. The dispute did not arise out of the collective agreement and, in any event, the collective agreement arbitration process did not provide an effective remedy. The issues raised were not dealt with by mediation or arbitration. A prima facie duty of care arose. It was not for the court, on a summary judgment application, to determine the extent of the application of the law of civil conspiracy. The unions appealed.

The Nova Scotia Court of Appeal, in a judgment reported (2007), 253 N.S.R.(2d) 144; 807 A.P.R. 144, allowed the appeal and granted summary judgment dismissing the actions as against the unions. The trial judge erred in failing to find that the claims against the union and local, in their essential character, arose out of the collective agreement and fell within the exclusive jurisdiction of the grievance and arbitration process under the Trade Union Act and the collective agreement. In preparation for the trial against the province, Cherubini applied ex parte under s. 7 of the Interprovincial Subpoena Act for a subpoena compelling Luedee (former union employee and resident of New Brunswick) to attend as a witness. A New Brunswick court allowed Cherubini's application to receive and adopt the Nova Scotia subpoena as an order of the New Brunswick court. Luedee was then served with the subpoena, together with $135 in witness fees and travel expenses. Luedee and the unions applied under rule 37.13 to set aside or vary the ex parte Nova Scotia order. At issue was: (1) who had standing to bring this application; (2) the court's jurisdiction to consider the application; (3) whether Luedee was entitled to notice of the application under s. 7 of the Interprovincial Subpoena Act; (4) whether the subpoena should be set aside for failing to meet the requirements of s. 7; and (5) whether Luedee was provided with sufficient witness fees and travel expenses.

The Nova Scotia Supreme Court declined to set aside or vary the ex parte order that led to the subpoena. The court held that (1) the unions had no standing to be heard on the application, as the subpoena was directed to Luedee and affected the unions only remotely; (2) the court's jurisdiction to consider the application was not as an appeal from the ex parte order, but a hearing of the matter anew based on additional information supplied by Luedee, who was not heard on the ex parte order; (3) it was not necessary to give Luedee notice of the ex parte application under the Interprovincial Subpoena Act; (4) the requirements of s. 7 were met where Luedee played a central part in the dispute between the unions and the plaintiff, which in turn gave rise to the action against the province. Luedee's evidence was necessary to ensure a full and fair hearing of the matters within the court's jurisdiction; and (5) the $135 in witness fees and travel expenses was unreasonable, being an unrealistic estimate of the actual costs to be incurred by Luedee. The court directed that Luedee be paid $250 in transportation costs, $120 for each night of hotel accommodation, $40 a day for meals and a $20 per diem for each 24 hour period he was required to be in Halifax.

Practice - Topic 3585

Evidence - Subpoena - Issued for service in another province - General - The plaintiff's action as against a national union and its union local was summarily dismissed, but allowed to proceed against the province - The plaintiff (Cherubini) applied ex parte under s. 7 of the Interprovincial Subpoena Act for a subpoena compelling Luedee (former union employee and resident of New Brunswick) to attend as a witness - A New Brunswick court allowed Cherubini's application to receive and adopt the Nova Scotia subpoena as an order of the New Brunswick court - Luedee was served with the subpoena, together with $135 in witness fees and travel expenses - Luedee and the unions applied under rule 37.13 to set aside or vary the ex parte Nova Scotia order - The Nova Scotia Supreme Court declined to set aside or vary the ex parte order - The court held that (1) the unions had no standing to be heard on the application, as the subpoena was directed to Luedee and affected the unions only remotely; (2) the court's jurisdiction to consider the application was not as an appeal from the ex parte order, but a hearing of the matter anew based on additional information supplied by Luedee, who was not heard on the ex parte order; (3) it was not necessary to give Luedee notice of the ex parte application under the Interprovincial Subpoena Act; (4) the requirements of s. 7 were met where Luedee played a central part in the dispute between the unions and the plaintiff, which in turn gave rise to the action against the province. Luedee's evidence was necessary to ensure a full and fair hearing of the matters within the court's jurisdiction; and (5) the $135 in witness fees and travel expenses was unreasonable, being an unrealistic estimate of the actual costs to be incurred by Luedee. The court directed that Luedee be paid $250 in transportation costs, $120 for each night of hotel accommodation, $40 a day for meals and a $20 per diem for each 24 hour period he was required to be in Halifax.

Practice - Topic 7086

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Witness fees (incl. conduct money) - [See Practice - Topic 3585 ].

Cases Noticed:

MacLellan Lincoln Mercury v. Jacobsen (2007), 259 N.S.R.(2d) 8; 828 A.P.R. 8 (S.C.), revd. (2008), 265 N.S.R.(2d) 258; 848 A.P.R. 258 (C.A.), refd to. [para. 15].

Burton v. Howlett (1998), 172 N.S.R.(2d) 342; 524 A.P.R. 342 (C.A.), refd to. [para. 22].

Society of Lloyd's v. Van Snick et al. (2000), 185 N.S.R.(2d) 344; 575 A.P.R. 344 (C.A.), refd to. [para. 22].

Frame v. Nova Scotia (Commission of Inquiry into the Westray Mine Disaster), [1997] N.S.J. No. 62 (S.C.), refd to. [para. 23].

Statutes Noticed:

Interprovincial Subpoena Act, S.N.S. 1996, c. 1, sect. 9 [para. 56].

Counsel:

George MacDonald, Q.C., and Michelle Awad, for the plaintiff;

Michael Pugsley, for the Attorney General of Nova Scotia;

Bettina Quistgaard, for the applicants.

This application was heard on September 8, 2008, at Halifax, N.S., before Duncan, J., of the Nova Scotia Supreme Court, who delivered the following judgment on September 9, 2008.