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

• Jurisdiction: Manitoba
• Judge: Oliphant,Robert G. Cummings
• Neutral Citation: 2005 MBQB 186
• Citation: 2005 MBQB 186,(2005), 198 Man.R.(2d) 85 (QB),198 ManR(2d) 85,(2005), 198 ManR(2d) 85 (QB),198 Man.R.(2d) 85
• Date: 19 August 2005
• Court: Court of Queen's Bench of Manitoba (Canada)

Hudson Bay Mining v. Cummings (2005), 198 Man.R.(2d) 85 (QB)

MLB headnote and full text

Temp. Cite: [2005] Man.R.(2d) TBEd. AU.019

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

(CI 04-01-36868; 2005 MBQB 186)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Oliphant, A.C.J.Q.B.

August 19, 2005.

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 dismissed the application.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See first Coroners - Topic 4044 ].

Civil Rights - Topic 3188

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right of accused to make full answer and defence - [See first Coroners - Topic 4044 ].

Coroners - Topic 4001

Inquests and fatality inquiries - General - Nature of inquest - [See first Coroners - Topic 4044 ].

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 sought judicial review, arguing that the Crown at an inquest had a public duty to make full disclosure as articulated in R. v. Stinchcombe (S.C.C.) - The Manitoba Court of Queen's Bench rejected the argument - The court highlighted some of the differences between a criminal trial and an inquest - Those differences were one reason that the employer's s. 7 Charter argument failed - Another reason was that the employer as a corporation could not rely on the protection offered by s. 7 of the Charter - See paragraphs 46 to 49.

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 at a smelter - 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 Crown had already made full disclosure of the statements given by prospective witnesses in the course of three earlier investigations by other entities - Unlike the other parties to the inquest, the Crown's counsel had no expertise respecting the operation of a smelter - Many of his questions in the interviews had to do with learning technical terms - The employer sought judicial review - The Manitoba Court of Queen's Bench held that the inquest judge's decision was correct - The impugned interviews were not investigatory in nature - They were conducted as part of Crown counsel's preparation to represent the Crown at the inquest and therefore constituted work product which was protected by litigation privilege - There was no procedural unfairness to the employer - See paragraphs 50 to 60.

Coroners - Topic 4046

Inquests and fatality inquiries - Evidence - Admissibility - 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 - It sought to expunge certain paragraphs from an affidavit admitted by the inquest judge on the application on the grounds that the paragraphs were hearsay and argumentative - The Manitoba Court of Queen's Bench refused to expunge the paragraphs - The receipt of that evidence was an exercise of judicial discretion by the inquest judge - To expunge the impugned paragraphs would be an attack on the findings of fact made by the inquest judge in arriving at his decision - See paragraphs 28 to 33.

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 - See paragraphs 35 to 44.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Documents prepared in contemplation of litigation (litigation privilege or work product privilege) - [See second 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, refd to. [para. 18].

R. v. Sanderson (1887), 15 O.R. 106 (H.C.), refd to. [para. 30].

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. 31].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, addendum [1998] 1 S.C.R. 1222, refd to. [para. 36].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 36].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

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, refd to. [para. 36].

Consumer's Association of Canada (Man.) Inc. et al. v. Public Utilities Board (Man.) (2005), 196 Man.R.(2d) 19; 2005 MBQB 152, refd to. [para. 37].

Manitoba Chiropractors Association et al. v. Alevizos, [2004] 2 W.W.R. 290; 177 Man.R.(2d) 45; 304 W.A.C. 45; 228 D.L.R.(4th) 583; 2003 MBCA 80, refd to. [para. 38].

Women Working With Immigrant Women - Youth Committee et al. v. Lucas (Coroner) (1999), 128 O.A.C. 279; 20 Admin. L.R.(3d) 239 (Div. Ct.), dist. [para. 43].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 49].

Blank v. Canada (Minister of Justice) (2004), 325 N.R. 315; 244 D.L.R.(4th) 80 (F.C.A.), leave to appeal granted (2005), 341 N.R. 398 (S.C.C.), refd to. [para. 54].

R. v. Regan (G.A.) (1997), 174 N.S.R.(2d) 72; 532 A.P.R. 72 (S.C.), refd to. [para. 55].

R. v. Johal, [1995] B.C.J. No. 1271 (S.C.), refd to. [para. 56].

Counsel:

William J. Burnett, Q.C., for the applicant;

Martin S. Minuk, for the respondent;

John B. Harvie, for United Steelworkers of America, Local 7106;

Marjorie A. Webb, for The Government of Manitoba, Department of Labour Workplace Safety and Health Division.

This application was heard by Oliphant, A.C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on August 19, 2005.