Fougere v. Blunden Construction Ltd. et al., (2014) 345 N.S.R.(2d) 385 (CA)

• Judge: MacDonald, C.J.N.S., Saunders and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 20, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 345 N.S.R.(2d) 385 (CA);2014 NSCA 52

Fougere v. Blunden Constr. Ltd. (2014), 345 N.S.R.(2d) 385 (CA);

    1092 A.P.R. 385

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MY.055

Blunden Construction Limited (appellant) v. William Fougere and Fowler, Bauld & Mitchell Limited (respondents)

(CA 423831; 2014 NSCA 52)

Indexed As: Fougere v. Blunden Construction Ltd. et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Scanlan, JJ.A.

May 29, 2014.

Summary:

Fougere sued Blunden Construction Ltd., alleging that it failed to adequately contain hazardous dust during the construction of an elevator hoistway at a school where Fougere was a teacher and thereby caused him personal injury. Blunden Construction moved for summary judgment on evidence pursuant to Civil Procedure Rule 13.04.

The Nova Scotia Supreme Court, in a decision reported at (2014), 340 N.S.R.(2d) 150; 1077 A.P.R. 150, dismissed the motion. Blunden Construction appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Practice - Topic 24

Actions - Conduct of - General - Directions from the court - [See Practice - Topic 73 ].

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - The defendant appealed from the dismissal of its motion for summary judgment on evidence pursuant to Civil Procedure Rule 13.04 - The Nova Scotia Court of Appeal dismissed the appeal - The court stated that "Before concluding these reasons we wish to emphasize the importance of CPR 13.07 and the bridge it forms with CPRs 5 and 6" - Pursuant to rule 13.07, any judge who dismissed a motion for summary judgment was obliged to give directions, as soon as practical, as to how the case would proceed - Rule 13.07(2)(f) said "The judge may ... provide for a hearing, rather than a trial, under Rule 6 - Choosing Between Action and Application" - The court stated that "the wise and creative application of CPR 13.07 in conjunction with CPRs 5 and 6 will offer judges the necessary flexibility to decide which cases need to be weeded out because the claim or the defence is doomed to fail, and then go on to decide whether those cases which deserve to be heard on their merits ought to be adjudicated in the abbreviated, less rigorous process of an application, or should instead be reserved for the more traditional trial by action format" See paragraphs 11 to 19.

Practice - Topic 5701

Judgments and orders - Summary judgments - General - The defendant appealed from the dismissal of its motion for summary judgment on evidence pursuant to Civil Procedure Rule 13.04 - The Nova Scotia Court of Appeal stated that "the recent decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, has little bearing upon the circumstances, analysis, reasoning or result in this case. There, Justice Karakatsanis, writing for a unanimous Court, considered the application of a new Rule in Ontario (their Rule 20) which now empowers judges in that province to weigh the evidence, draw reasonable inferences from the evidence, and settle matters of credibility when deciding whether to grant summary judgment. Those powers are foreign to the well-established procedures and settled law which operate in Nova Scotia. We recognize of course the guidance provided by Justice Karakatsanis in her reasons concerning the importance of interpreting summary judgment rules 'broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.'" - See paragraphs 6 to 9.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or appropriate - [See Practice - Topic 5719 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5719 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - Fougere sued Blunden Construction Ltd. (Blunden), alleging that it failed to adequately contain hazardous dust during the construction of an elevator hoistway at a school where Fougere was a teacher and thereby caused him personal injury - Blunden moved for summary judgment on evidence pursuant to Civil Procedure Rule 13.04 - The motion was dismissed - The Nova Scotia Court of Appeal dismissed Blunden's appeal - The motion judge's conclusion that there were many important factual issues in dispute which would require a trial to resolve, some of which might engage an assessment of credibility, found ample support in the record - Accordingly, the judge was right to find that Blunden's motion failed at the first stage of the summary judgment analysis - See paragraphs 1 to 5.

Cases Noticed:

Coady v. Burton Canada Co. et al. (2013), 333 N.S.R.(2d) 348; 1055 A.P.R. 348; 2013 NSCA 95, refd to. [para. 2].

Szubielski v. Price et al. (2013), 338 N.S.R.(2d) 301; 1071 A.P.R. 301; 2013 NSCA 151, refd to. [para. 3].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, consd. [para. 6].

Roué v. Nova Scotia et al. (2013), 333 N.S.R.(2d) 327; 1055 A.P.R. 327; 2013 NSCA 94, refd to. [para. 17].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 5, rule 6 [para. 11]; rule 13.04 [para. 2]; rule 13.07 [para. 13].

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

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

Counsel:

Gavin Giles, Q.C., and Franco Tarulli, for the appellant;

Ian Gray, for the respondent, William Fougere;

James P. Boudreau, for the respondent, Fowler, Bauld & Mitchell Limited.

This appeal was heard on May 20, 2014, at Halifax, N.S., before MacDonald, C.J.N.S., Saunders and Scanlan, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Saunders, J.A., on May 29, 2014.