BurtNS CAnada Company v. Coady,

• Jurisdiction: Nova Scotia
• Judge: Saunders, Oland, Hamilton, Fichaud and Beveridge, JJ.A.
• Neutral Citation: 2013 NSCA 95
• Citation: (2013), 333 N.S.R.(2d) 348 (CA),2013 NSCA 95,[2013] NSJ No 425 (QL),333 NSR (2d) 348,[2013] NS.J. No 425 (QL),(2013), 333 NSR(2d) 348 (CA),333 N.S.R.(2d) 348,333 NSR(2d) 348
• Date: 11 April 2013
• Court: Court of Appeal of Nova Scotia (Canada)

Coady v. Burton Can. Co. (2013), 333 N.S.R.(2d) 348 (CA);

    1055 A.P.R. 348

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. AU.043

Burton Canada Company (appellant) v. Michael Sampson Coady and Wentworth Valley Developments Limited (respondents)

(CA 407433; 2013 NSCA 95)

Indexed As: Coady v. Burton Canada Co. et al.

Nova Scotia Court of Appeal

Saunders, Oland, Hamilton, Fichaud and Beveridge, JJ.A.

August 28, 2013.

Summary:

The plaintiff, a 16 year old male, went to the Wentworth Valley Ski Resort to snowboard. Burton Canada Co., a manufacturer, distributor and retailer of snowboards, had a promotional booth at Wentworth, which was offering snowboarders trial runs on its snowboards and free high-caffeine energy drinks. The plaintiff took Burton up on its offer. After a few runs down the regular ski hills, the plaintiff decided to enter the "Terrain Park". On his first approach to the first feature, a barrel jib, he fell in the icy snow conditions. He suffered a serious fracture of the C-5 vertebrae, with damage to the spinal cord, resulting in partial paralysis. The plaintiff sued Burton and the owner of the ski resort, Wentworth Valley Developments Ltd., for damages for negligence. Burton and Wentworth applied for summary judgment on the evidence (Civil Procedure Rules, 2009, rule 13.04).

The Nova Scotia Supreme Court, in a decision reported 319 N.S.R.(2d) 91; 1010 A.P.R. 91, discussed the application of rule 13.04 and dismissed both applications for summary judgment. The plaintiff was awarded costs of the motions ($24,000), payable forthwith, with each defendant responsible for half of that sum. Burton applied for leave to appeal, respecting both the refusal to grant summary judgment and the costs order. Wentworth chose not to appeal, but joined the appeal as a respondent claiming that Burton's appeal respecting costs ought to be dismissed.

The Nova Scotia Court of Appeal, Beveridge, J.A., dissenting, granted leave to appeal, but dismissed the appeal. The Court of Appeal agreed with the motions judge that there were many material facts in dispute which grounded a variety of important issues that would require a full trial to resolve. The plaintiff deserved to have his lawsuit tried on its merits. In reaching that conclusion the motions judge did not err in principle, neither did his decision produce a patently unjust result.

Practice - Topic 5701

Judgments and orders - Summary judgments - General - The Nova Scotia Court of Appeal reviewed the principles applicable to a motion for summary judgment and the analytical framework to be applied on such motions (Civil Procedure Rules, 2009) - See paragraphs 26 to 45 - At the end of the decision, the court provided a summary of the current law in Nova Scotia concerning summary judgment litigation - The court stated that it was listing those principles in the hope that their enumeration would serve as a helpful checklist or template to guide counsel and judges in their application - See paragraph 87.

Practice - Topic 5701

Judgments and orders - Summary judgments - General - The Nova Scotia Court of Appeal discussed the purpose of the summary judgment procedure - The court stated that the summary judgment process "... has become needlessly complicated and cumbersome. Summary judgment should be just that. Summary. 'Summary' is intended to mean quick and effective and less costly and time consuming than a trial. The purpose of summary judgment is to put an end to claims or defenses that have no real prospect of success. Such cases are seen by an experienced judge as being doomed to fail. These matters are weeded out to free the system for other cases that deserve to be heard on their merits. That is the objective. Lawyers and judges should apply the Rules to ensure that such an outcome is achieved" - See paragraph 22.

Practice - Topic 5701

Judgments and orders - Summary judgments - General - In 2008, the plaintiff became paralyzed in a snowboarding accident at a ski resort and sued two defendants - Both defendants moved for summary judgment (Civil Procedure Rules, 2009) - Over the next 2.5 years there were multiple steps in pleading, production and discovery leading up to a six day hearing spread over three months - Sixteen months later, the motions judge filed a 37 page decision dismissing both applications - One of the defendants appealed - The Nova Scotia Court of Appeal stated that "By any measure the sequence of events and unnecessary time and resources expended in this case is hardly the standard by which motions for summary judgment ought to be gauged ... In fact, this case could serve to illustrate how badly things can go whenever litigants lose sight of the object, goals and directions prescribed by our Civil Procedure Rules. In this case, respectfully, it would seem that everyone - counsel and the judge - lost their way. There was nothing 'summary' about it." - See paragraphs 23 and 24.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiff was left partially paralyzed after a snowboarding accident at a ski resort - He sued the resort and another company (Burton), the defendants - Burton had a promotional booth at Wentworth, which offered snowboarders (including the plaintiff) trial runs on its snowboards and free high-caffeine energy drinks - Immediately after discovery of the plaintiff, the defendants moved for summary judgment on the evidence (Civil Procedure Rules, 2009, rule 13.04 (new rule)) - A motions judge dismissed the applications because the defendants failed to satisfy him that there were no material facts in dispute - Burton appealed - The Nova Scotia Court of Appeal dismissed the appeal - There were significant contested questions of fact, mixed law and fact, or inferences to be drawn from the disputed facts which were, as the judge found, ill-suited to a summary judgment proceeding - See paragraphs 47 to 67.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - A motions judge dismissed the defendants' summary judgment applications because the defendants failed to satisfy him that there were no material facts in dispute, and in the alternative, the motions were premature and the applications were not in the interests of justice - One of the defendants appealed - The Nova Scotia Court of Appeal dismissed the appeal, holding that the motions judge correctly found that there were a number of contested matters - However, the motions judge erred in holding that under Civil Procedure Rule 13.04 (2009) there was residual inherent jurisdiction or discretion allowing a judge to refuse a motion for summary judgment because it was premature, or because other interests of justice might preclude it - The court noted that while nothing turned on the judge's misinterpretation of rule 13.04 in this case, the court wanted to correct his erroneous interpretation for cases arising in the future - See paragraphs 68 to 80.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Nova Scotia Court of Appeal stated that Civil Procedure Rule 13.04 (summary judgment), as presently worded, did not create or retain any kind of residual inherent jurisdiction which might enable a judge to refuse to grant summary judgment on the basis that the motion was premature or that other juridical reasons ought to defeat its being granted - The court stated that "... this is not to say that a party drawn into a summary judgment hearing who is not at that time adequately prepared to resist it, is suddenly without a remedy and doomed to fail. Nor do these conclusions mean that a responding party will be forced to put his 'best foot forward', at the peril of summary judgment, before he has access to the relevant evidence possessed by the moving party. The granting and denial of summary judgment are not the judge's only options under Rule 13.04. The judge also may adjourn, as an element of his procedural discretion" - See paragraphs 79 and 80.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See first and third Practice - Topic 5701 ].

Practice - Topic 5716

Judgments and orders - Summary judgments - Setting aside - The Nova Scotia Court of Appeal stated that "The standard of review applicable to summary judgment motions in Nova Scotia is settled law. The once favoured threshold inquiry as to whether the impugned order under appeal did or did not have a terminating affect, is now extinct. There is only one standard of review. We will not intervene unless wrong principles of law were applied or, insofar as the judge was exercising a discretion, a patent injustice would result" - See paragraph 19.

Practice - Topic 5720.2

Judgments and orders - Summary judgments - Adjournments - Immediately after discovery of the plaintiff, and before the plaintiff had a chance to discover the defendant's witnesses, the defendant moved for summary judgment on the evidence (Civil Procedure Rules, 2009, rule 13.04) - The defendant claimed the lack of the discovery was immaterial (rule 13.04(3)) and the Rules contemplated bringing summary judgment prior to the completion of discovery in their stated purpose of determining every proceeding in a just, speedy and inexpensive manner (Civil Procedure Rule 1.01) - The Nova Scotia Court of Appeal disagreed with the defendant's interpretation - The court stated that "The 'just' determination that Rule 1.01 mandates does not contemplate a summary judgment - because the responding party failed to put his 'best foot forward' - before this responding party has had a reasonable opportunity to 'better' his case with discovery of the relevant evidence that is possessed by the moving party. Ambush is not a criterion for the just, speedy and inexpensive determination of a proceeding. The lever to achieve the 'just' result, in these circumstances, is an adjournment" - See paragraphs 81 to 86.

Practice - Topic 5720.2

Judgments and orders - Summary judgments - Adjournments - Immediately after discovery of the plaintiff, and before the plaintiff had a chance to discover the defendant's witnesses, the defendant moved for summary judgment on the evidence (Civil Procedure Rules, 2009, rule 13.04) - The defendant claimed the lack of the discovery was immaterial (rule 13.04(3)) and the Rules contemplated bringing summary judgment prior to the completion of discovery in their stated purpose of determining every proceeding in a just, speedy and inexpensive manner (Civil Procedure Rule 1.01) - The Nova Scotia Court of Appeal disagreed with the defendant's interpretation - The court stated that "If the motions judge is satisfied that the responding party reasonably requires disclosure, production or discovery, or an opportunity to present expert or other evidence before he is in a position to 'put his best foot forward', then the judge should adjourn the motion so that those steps may be taken. Whether the adjournment is without day, or to a fixed date, or attaches conditions and a schedule for production, discovery, and the like, will turn on the judge's appreciation of the circumstances in each case. Of course, if the judge is satisfied that the responding party does not reasonably require further information, and is just procrastinating to forestall summary judgment, then an adjournment should be denied" - See paragraphs 81 to 86.

Practice - Topic 5720.2

Judgments and orders - Summary judgments - Adjournments - [See third Practice - Topic 5702 ].

Practice - Topic 5725

Judgments and orders - Summary judgments - Costs - The Nova Scotia Court of Appeal stated that with respect to a motions judge's award of costs, the court would not interfere unless it was convinced that the motions judge erred in principle or that the decision was so clearly wrong as to amount to a manifest injustice - See paragraph 20.

Practice - Topic 5725

Judgments and orders - Summary judgments - Costs - Two defendants moved for summary judgment on the evidence dismissing the plaintiff's negligence action (Civil Procedure Rules, 2009, rule 13.04) - A motions judge dismissed the applications - As to costs, the judge held that Tariff C applied - Further, while the starting point for a six day chambers motion, without application of a multiplier, was $12,000.00, in this case, the complexity and importance of the matter to the parties merited a multiplier of at least two - Therefore, the judge ordered that the plaintiff would have his costs in the amount of $24,000.00, plus reasonable disbursements and get one half from each of the defendants - Costs were payable forthwith - One of the defendants appealed the costs order - The Nova Scotia Court of Appeal held that there was no good reason to disturb the costs award - See paragraphs 88 to 91.

Practice - Topic 7118.1

Costs - Party and party costs - Special orders - Multiplier - [See second Practice - Topic 5725 ].

Practice - Topic 7364

Costs - Party and party costs - Costs of interlocutory proceedings - Costs of motions or applications - [See second Practice - Topic 5725 ].

Practice - Topic 8301.2

Costs - Appeals - Appeals from order granting or denying costs - Variation of motion judge's decision - [See first Practice - Topic 5725 ].

Practice - Topic 8425

Costs - Appeals - Grounds - Error in principle - [See first Practice - Topic 5725 ].

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - [See Practice - Topic 5716 ].

Cases Noticed:

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 18].

Michelin North America (Canada) Inc. v. Ross et al. (2002), 207 N.S.R.(2d) 292; 649 A.P.R. 292; 2002 NSCA 102, refd to. [para. 18].

Huntley et al. v. Hogeterp et al. (2007), 256 N.S.R.(2d) 20; 818 A.P.R. 20; 2007 NSCA 75, refd to. [para. 18].

Hartling et al. v. Nova Scotia (Attorney General) et al. (2009), 286 N.S.R.(2d) 219; 909 A.P.R. 219; 2009 NSCA 130, refd to. [para. 18].

MacQueen et al. v. Nova Scotia et al. (2012), 324 N.S.R.(2d) 102; 1029 A.P.R. 102; 2013 NSCA 5, refd to. [para. 18].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants (2013), 330 N.S.R.(2d) 301; 1046 A.P.R. 301; 2013 NSCA 66, refd to. [para. 18].

Nova Scotia Power Inc. v. AMCI Export Corp. (2010), 292 N.S.R.(2d) 130; 925 A.P.R. 130; 2010 NSCA 41, refd to. [para. 19].

Innocente v. Canada (Attorney General) (2012), 315 N.S.R.(2d) 273; 998 A.P.R. 273; 2012 NSCA 36, refd to. [para. 19].

Roué v. Nova Scotia et al. (2013), 333 N.S.R.(2d) 327; 1055 A.P.R. 327; 2013 NSCA 94, refd to. [para. 19].

Frothingham v. Perez et al. (2011), 304 N.S.R.(2d) 329; 960 A.P.R. 329; 2011 NSCA 59, refd to. [para. 20].

Hayward v. Young (2013), 330 N.S.R.(2d) 267; 1046 A.P.R. 267; 2013 NSCA 65, refd to. [para. 20].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 26].

United Gulf Developments Ltd. et al. v. Iskandar et al. (2004), 222 N.S.R.(2d) 137; 701 A.P.R. 137; 2004 NSCA 35, refd to. [para. 26].

Eikelenboom v. Holstein Association of Canada (2004), 226 N.S.R.(2d) 235; 714 A.P.R. 235; 2004 NSCA 103, dist. [para. 55]; refd to. [paras. 26, 100].

Orlandello v. Nova Scotia (Attorney General) (2005), 234 N.S.R.(2d) 247; 745 A.P.R. 247; 2005 NSCA 98, refd to. [para. 26].

Milbury v. Nova Scotia (Attorney General) et al. (2007), 254 N.S.R.(2d) 181; 810 A.P.R. 181; 2007 NSCA 52, refd to. [para. 26].

Nova Scotia Home for Coloured Children v. Milbury - see Milbury v. Nova Scotia (Attorney General) et al.

Young v. Ward et al. (2009), 277 N.S.R.(2d) 49; 882 A.P.R. 49; 2009 NSCA 47, refd to. [para. 26].

Young v. Meery - see Young v. Ward et al.

Globex Foreign Exchange Corp. v. Launt et al. (2011), 306 N.S.R.(2d) 96; 968 A.P.R. 96; 2011 NSCA 67, refd to. [para. 26].

Hiltz v. 2420188 Nova Scotia Ltd. et al. (2011), 307 N.S.R.(2d) 89; 975 A.P.R. 89; 2011 NSCA 74, refd to. [para. 26].

Lameman et al. v. Canada (Attorney General) et al. (2008), 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [paras. 28, 210].

Crocker v. Northwest Sundance Resorts Ltd., [1988] 1 S.C.R. 1186; 86 N.R. 241; 29 O.A.C. 1, refd to. [para. 61].

Johansson v. General Motors of Canada Ltd. (2012), 324 N.S.R.(2d) 252; 1029 A.P.R. 252; 2012 NSCA 120, refd to. [para. 62].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 2011 ONCA 764, dist. [para. 72].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352, refd to. [para. 100].

Ellph.com Solutions Inc. et al. v. Aliant Inc. et al. (2012), 320 N.S.R.(2d) 244; 1014 A.P.R. 244; 2012 NSCA 89, refd to. [para. 166].

Minkoff v. Poole and Lambert (1991), 101 N.S.R.(2d) 143; 275 A.P.R. 143 (C.A.), refd to. [para. 166].

Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 2007 NSCA 39, refd to. [para. 167].

Lord v. Smith (2013), 328 N.S.R.(2d) 189; 1039 A.P.R. 189; 2013 NSCA 34, refd to. [para. 168].

Blue v. Board of Education of Antigonish District (1990), 95 N.S.R.(2d) 118; 251 A.P.R. 118 (T.D.), refd to. [para. 172].

R. v. Caron (G.) (2011), 411 N.R. 89; 499 A.R. 309; 514 W.A.C. 309; 2011 SCC 5, refd to. [para. 174].

Conseil scolaire francophone de la Colombie-Britannique et al. v. British Columbia et al. (2013), 447 N.R. 204; 2013 SCC 42, refd to. [para. 174].

Mustapha v. Culligan of Canada Ltd. (2008), 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 183].

Home Office v. Dorset Yacht Co., [1970] 2 All E.R. 294 (H.L.), refd to. [para. 185].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 185].

Nova Mink Ltd. v. Trans-Canada Airlines, [1951] 2 D.L.R. 241, refd to. [para. 186].

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al. (2011), 302 N.S.R.(2d) 367; 955 A.P.R. 367; 2011 NSCA 43, refd to. [para. 187].

Los Angeles Salad Co. et al. v. Canadian Food Inspection Agency et al. (2013), 334 B.C.A.C. 24; 572 W.A.C. 24; 2013 BCCA 34, refd to. [para. 187].

Schulz v. Leeside Developments Ltd. (1978), 90 D.L.R.(3d) 98 (C.A.), refd to. [para. 190].

Alchimowicz v. Schram et al. (1999), 116 O.A.C. 287 (C.A.), refd to. [para. 193].

Lemieux v. Porcupine Snowmobile Club of Timmins Inc. (1999), 120 O.A.C. 292 (C.A.), refd to. [para. 193].

Thomson v. Cosgrove et al., [1998] B.C.T.C. Uned. 433 (S.C.), refd to. [para. 193].

Deshane et al. v. Deere & Co. (1993), 65 O.A.C. 275 (C.A.), leave to appeal refused (1994), 175 N.R. 321; 72 O.A.C. 159, refd to. [para. 193].

Melnychuk v. Ronaghan et al. (1999), 237 A.R. 110; 197 W.A.C. 110; 1999 ABCA 170, refd to. [para. 193].

Baker v. Suzuki Motor Co. et al. (1993), 143 A.R. 1; 12 Alta. L.R.(3d) 193 (Q.B.), refd to. [para. 204].

Amin (Litigation guardian of) v. Klironomos, [1996] O.J. No. 826 (Gen. Div.), refd to. [para. 204].

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241, refd to. [para. 206].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 212].

Taylor v. Halifax 1658 Bedford Highway Inc. et al. (2006), 245 N.S.R.(2d) 188; 777 A.P.R. 188; 2006 NSSC 172, refd to. [para. 233].

Trenholm v. Langham & West Insurance Ltd., [1990] N.B.J. No. 129 (Q.B.), refd to. [para. 233].

Reid v. Mimico (Town), [1927] 1 D.L.R. 235 (Ont. C.A.), refd to. [para. 233].

Bowden v. Withrow's Pharmacy Halifax (1999) Ltd. et al. (2008), 268 N.S.R.(2d) 299; 857 A.P.R. 299; 2008 NSSC 252, refd to. [para. 233].

Statutes Noticed:

Civil Procedure Rules (N.S.), 2009, rule 13.04 [para. 30].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Authors and Works Noticed:

Charles, William H., Inherent Jurisdiction and its Application by Nova Scotia Courts: Metaphysical, Historical or Pragmatic? (2010), 33 Dalhousie L.J. 63, pp. 70 [para. 169]; 82 [para. 168].

Clerk & Lindsell on Torts (16th Ed. 1989), p. 428 [para. 185].

Fleming, John G., Law of Torts (8th Ed. 1992), p. 136 [para. 185].

Halsbury's Laws of Canada: Torts (2012) (Reissue), p. 385, para. HTO-104 [para. 192].

Jacob, Jack Isaac H., The Inherent Jurisdiction of the Court (1970), 23 Curr. Legal Probs. 23, p. 25 [para. 175].

Klar, Lewis N., Remedies in Tort (1987) (2013 Looseleaf), c. 20, para. 37 [para. 61].

Miller, Kathleen E., Wired: Energy Drinks, Jock Identity, Masculine Norms, and Risk Taking (2008), Journal of American College Health, generally [para. 113].

Salmond and Heuston, The Law of Torts (18th Ed. 1981), p. 183 [para. 185].

Van Kessel, Robert J., Dispositions Without Trial (2nd Ed. 2007), p. 213 [para. 180].

Counsel:

Scott R. Campbell and G. Grant Machum, for the appellant;

Robert K. Dickson, Q.C., Sean F. Layden, Q.C., and Ansley Simpson, for the respondent, Michael Sampson Coady;

Jocelyn M. Campbell, Q.C., for the respondent, Wentworth Valley Developments Limited.

This appeal was heard on April 11, 2013, in Halifax, Nova Scotia, before Saunders, Oland, Hamilton, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. The decision of the court was rendered on August 28, 2013, including the following opinions:

Saunders, J.A. (Oland, Hamilton and Fichaud, JJ.A., concurring) - see paragraphs 1 to 96;

Beveridge, J.A., dissenting - see paragraphs 97 to 248.