Hudson Bay Mining v. Cummings,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Monnin and Steel, JJ.A.
• Neutral Citation: 2006 MBCA 98
• Citation: (2006), 208 Man.R.(2d) 75 (CA),2006 MBCA 98,272 DLR (4th) 419,[2007] 4 WWR 197,51 Admin LR (4th) 1,[2006] MJ No 304 (QL),208 Man R (2d) 75,208 ManR(2d) 75,208 Man.R.(2d) 75,[2006] M.J. No 304 (QL),272 D.L.R. (4th) 419,(2006), 208 ManR(2d) 75 (CA)
• Date: 15 September 2006
• Court: Court of Appeal (Manitoba)

Hudson Bay Mining v. Cummings (2006), 208 Man.R.(2d) 75 (CA);

      383 W.A.C. 75

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. SE.014

Hudson Bay Mining and Smelting Co., Limited (applicant/appellant) v. The Honourable Judge Robert G. Cummings (respondent/respondent)

(AI 05-30-06225; 2006 MBCA 98)

Indexed As: Hudson Bay Mining and Smelting Co. v. Cummings, P.C.J.

Manitoba Court of Appeal

Scott, C.J.M., Monnin and Steel, JJ.A.

September 15, 2006.

Summary:

An inquest was ordered under the Fatality Inquiries Act into the death of an employee. The employer applied for an order to compel Crown counsel to disclose the transcripts of the interviews the Crown counsel conducted with prospective witnesses. The inquest judge dismissed the application. The employer sought judicial review.

The Manitoba Court of Queen's Bench, in a decision reported at 198 Man.R.(2d) 85, dismissed the application. The employer appealed.

The Manitoba Court of Appeal allowed the appeal and ordered the disclosure of the transcripts.

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See fifth Coroners - Topic 4044] .

Barristers and Solicitors - Topic 1901

Crown counsel - General - [See second Coroners - Topic 4044 ].

Coroners - Topic 4001

Inquests and fatality inquiries - General - Nature of inquest - The Manitoba Court of Appeal reviewed the nature of an inquest under the Fatality Inquiries Act - See paragraphs 36 to 47.

Coroners - Topic 4044

Inquests and fatality inquiries - Evidence - Disclosure of evidence (incl. privilege) - An inquest was ordered under the Fatality Inquiries Act into the death of an employee - The inquest judge dismissed the employer's application to compel Crown counsel to disclose the transcripts of the interviews the Crown counsel conducted with prospective witnesses - The employer's judicial review application was dismissed - The Manitoba Court of Appeal allowed the employer's appeal - The transcripts were not covered by any doctrine of privilege - Litigation privilege or work product privilege was a product of the adversarial process and existed to provide a lawyer with a zone into which adversarial parties could not pry - An inquest under the Act was not an adversarial process - It was not actual, anticipated or contemplated litigation - Nor were the parties who had received standing at the inquest adversarial in relation to Crown counsel - See paragraphs 4 and 30 to 69.

Coroners - Topic 4044

Inquests and fatality inquiries - Evidence - Disclosure of evidence (incl. privilege) - An inquest was ordered under the Fatality Inquiries Act into the death of an employee - The inquest judge dismissed the employer's application to compel Crown counsel to disclose the transcripts of the interviews the Crown counsel conducted with prospective witnesses - The employer's judicial review application was dismissed - The employer appealed - The Manitoba Court of Appeal stated that an inquest was a fact-finding, non-adversarial inquiry, where the focus should be upon discovering the cause of the accident and recommending changes to prevent similar deaths - The court reviewed the role of Crown counsel - While Crown counsel was not counsel to the inquest judge, neither did he represent a specific government department or narrow government interests - Crown counsel represented the Attorney General, who, in turn, represented the public interest - As such, his goal was to aid in the search for truth - See paragraphs 5 and 48 to 57.

Coroners - Topic 4044

Inquests and fatality inquiries - Evidence - Disclosure of evidence (incl. privilege) - An inquest was ordered under the Fatality Inquiries Act into the death of an employee - The inquest judge dismissed the employer's application to compel Crown counsel to disclose the transcripts of the interviews the Crown counsel conducted with prospective witnesses - The employer's judicial review application was dismissed - The Manitoba Court of Appeal held that the transcripts were not privileged based on Wigmore's four criteria - There was no evidence that the prospective witnesses had expectation of confidentiality - The maintenance of the open truth-finding function of an inquest was more important than keeping this information confidential - See paragraphs 70 to 83.

Coroners - Topic 4044

Inquests and fatality inquiries - Evidence - Disclosure of evidence (incl. privilege) - An inquest was ordered under the Fatality Inquiries Act into the death of an employee - The inquest judge dismissed the employer's application to compel Crown counsel to disclose the transcripts of the interviews the Crown counsel conducted with prospective witnesses - The employer's judicial review application was dismissed - The Manitoba Court of Appeal rejected the employer's argument that the appropriate standard of disclosure for an inquest was similar to that in a criminal trial as set out in R. v. Stinchcombe (SCC) - Stinchcombe standards of disclosure generally did not apply outside of the criminal context unless an interest equal to a person's innocence and right to full answer and defence were at stake - That was not the case here - The standard of disclosure developed by the Supreme Court in Stinchcombe was not applicable to an inquest - See paragraphs 84 to 90.

Coroners - Topic 4044

Inquests and fatality inquiries - Evidence - Disclosure of evidence (incl. privilege) - An inquest was ordered under the Fatality Inquiries Act into the death of an employee - The inquest judge dismissed the employer's application to compel Crown counsel to disclose the transcripts of the interviews the Crown counsel conducted with prospective witnesses - The employer's judicial review application was dismissed - The Manitoba Court of Appeal allowed the employer's appeal - The principles of natural justice and procedural fairness applied to the conduct of both inquests and inquiries - Considering the inquest in its statutory and social context, the requirements of procedural fairness included the disclosure of all relevant, non-privileged materials in the possession of Crown counsel to all parties with standing - This conclusion accorded with the trend in both criminal and civil litigation toward greater disclosure - See paragraphs 5 and 91 to 105.

Coroners - Topic 4061

Inquests and fatality inquiries - Judicial review - General (incl. standard of review) - An inquest was ordered under the Fatality Inquiries Act into the death of an employee - The inquest judge dismissed the employer's application to compel Crown counsel to disclose the transcripts of the interviews the Crown counsel conducted with prospective witnesses - The employer sought judicial review - The Manitoba Court of Queen's Bench held that the applicable standard of review of this question of law was correctness - The Manitoba Court of Appeal affirmed that the proper standard of review was correctness - See paragraphs 21 and 22.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Documents prepared in contemplation of litigation (litigation privilege or work product privilege) - [See first Coroners - Topic 4044 ].

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R.(2d) 193; 8 C.R.(4th) 277; 68 C.C.C.(3d) 1, refd to. [para. 5].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 22].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 22].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 22].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 180 D.L.R.(4th) 241 (C.A.), refd to. [para. 32].

Chmara v. Nguyen (1993), 85 Man.R.(2d) 227; 41 W.A.C. 227; 16 C.P.C.(3d) 177 (C.A.), refd to. [para. 33].

N.G. v. Upper Canada College (2004), 70 O.R.(3d) 312 (C.A.), refd to. [para. 33].

Head and Head v. Trudel, P.C.J. (1988), 54 Man.R.(2d) 145 (Q.B.), affd. (1989), 57 Man.R.(2d) 153 (C.A.), refd to. [para. 44].

Swan v. Harris (1992), 79 Man.R.(2d) 188 (Q.B.), refd to. [para. 44].

Hudson Bay Mining and Smelting Co. v. Cummings, P.C.J. (2004), 190 Man.R.(2d) 231; 335 W.A.C. 231; 2004 MBCA 182; 2005 MBCA 9, refd to. [para. 45].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 54].

Cronkwright Transport Ltd. v. Porter, [1983] O.J. No. 558 (H.C.), refd to. [para. 57].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153, refd to. [para. 60].

R. v. Regan (G.A.) (1997), 174 N.S.R.(2d) 72; 532 A.P.R. 72 (S.C.), refd to. [para. 60].

R. v. Johal, [1995] B.C.J. No. 1271 (S.C.), refd to. [para. 60].

R. v. Chan (A.H.) et al., [2002] 7 W.W.R. 223; 307 A.R. 232; 2002 ABQB 287, refd to. [para. 62].

Slavutych v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, 55 D.L.R.(3d) 224; 38 C.R.N.S. 306; [1975] 4 W.W.R. 620, refd to. [para. 71].

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112, refd to. [para. 72].

Merrill Lynch, Royal Securities Ltd. v. Granove, [1985] 5 W.W.R. 589; 35 Man.R.(2d) 194 (C.A.), refd to. [para. 79].

Bergwitz v. Fast (1980), 18 B.C.L.R. 368; 108 D.L.R.(3d) 732 (C.A.), refd to. [para. 79].

British Columbia (Attorney General) v. Messier et al. (1984), 8 D.L.R.(4th) 306 (B.C.S.C.), refd to. [para. 81].

Hammami v. College of Physicians and Surgeons (B.C.) (1977), 47 Admin. L.R.(2d) 30 (B.C.S.C.), refd to. [para. 87].

Sheriff et al. v. Canada (Attorney General) (2006), 350 N.R. 230; 2006 FCA 139, refd to. [para. 88].

Human Rights Commission (Ont.) v. House et al. (1993), 67 O.A.C. 72 (Div. Ct.), refd to. [para. 88].

J.P.G. et al. v. Superintendent of Family and Child Services (B.C.) (1993), 25 B.C.A.C. 116; 43 W.A.C. 116; 77 B.C.L.R.(2d) 204 (C.A.), refd to. [para. 88].

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 89].

People First of Ontario et al. v. Regional Coroner of Niagara et al. (1992), 54 O.A.C. 187; 6 O.R.(3d) 289 (C.A.), reving. (1991), 50 O.A.C. 90; 5 O.R.(3d) 609 (Div. Ct.), refd to. [paras. 91, 99].

People First of Ontario v. Porter - see People First of Ontario et al. v. Regional Coroner of Niagara et al.

Canada (Attorney General) et al. v. Royal Commission of Inquiry on the Blood System in Canada et al., [1997] 3 S.C.R. 440; 216 N.R. 321, refd to. [para. 91].

Mondesir v. Manitoba Association of Optometrists (1998), 129 Man.R.(2d) 96; 180 W.A.C. 96; 163 D.L.R.(4th) 703 (C.A.), refd to. [para. 91].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 94].

Gentles v. Béchard (Coroner) (1998), 114 O.A.C. 245; 22 C.R.(5th) 343 (Div. Ct.), refd to. [para. 99].

Blank v. Canada (Minister of Justice), [2005] 1 F.C.R. 403; 325 N.R. 315; 2004 FCA 287, refd to. [para. 102].

Hamulka v. Golfman (1985), 35 Man.R.(2d) 189; 20 D.L.R.(4th) 540 (C.A.), refd to. [para. 103].

Canada (Attorney General) v. Béchard (Coroner) (1998), 116 O.A.C. 70; 22 C.R.(5th) 359 (Div. Ct.), refd to. [para. 112].

Statutes Noticed:

Fatality Inquiries Act, S.M. 1989-1990, c. 30; C.C.S.M., c. F-52, generally [para. 1]; sect. 33(1) [para. 52].

Authors and Works Noticed:

Bennett, R.C., The Role of the Coroner's Office, in The Role of the Inquest in Today' s Litigation (1975), pp. 6, 8 [para. 46].

Granger, Christopher, Canadian Coroner Law (1984), generally [para. 46].

Hubbard, Robert W., Magotiaux, Susan and Duncan, Suzanne M., The Law of Privilege in Canada (2006 Looseleaf), paras. 12.10, 12.20 [para. 30].

Iacobucci, Frank, Commissions of Inquiry and Public Policy in Canada, in Pross, Paul A., Christie, Innis, and Yogis, John A., Commissions of Inquiry (1990), p. 21 [para. 38, footnote 1].

MacKay, A. Wayne, Mandates, Legal Foundations, Powers and Conduct of Commissions of Inquiry, in Pross, A. Paul, Christie, Innis, and Yogis, John A., Commissions of Inquiry (1990), p. 29 [para. 38, footnote 1].

Marshall, T. David, Canadian Law of Inquests (2nd Ed. 1991), p. 99 [para. 57].

Pross, A. Paul, Christie, Innis, and Yogis, John A., Commissions of Inquiry (1990), pp. 21, 29 [para. 38, footnote 1].

Sharpe, R.J., Claiming Privilege in the Discovery Process, in Law in Transition: Evidence, Law Society of Upper Canada Special Lectures (1984), pp. 163, 164, 165 [para. 31].

Wigmore on Evidence (3rd Ed. McNaughton Rev. 1961), vol. 8, para. 2285 [paras. 25, 71].

Counsel:

W.J. Burnett, Q.C., J.G. Edmond and M.L. Harrison, for the appellant;

M.S. Minuk, for the Attorney General of Manitoba;

M.A. Webb, for the Government of Manitoba, Department of Labour and Immigration, Workplace Safety and Health Division;

J.B. Harvie, for the United Steelworkers of America, Local 7106.

This appeal was heard on March 15 and 16, 2006, before Scott, C.J.M., Monnin and Steel, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following judgment on September 15, 2006.