IMP Group International Inc. v. Nova Scotia (Attorney General), 2013 NSSC 332

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 30, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSSC 332;(2013), 336 N.S.R.(2d) 188 (SC)

IMP Group Intl. Inc. v. N.S. (A.G.) (2013), 336 N.S.R.(2d) 188 (SC);

    1063 A.P.R. 188

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. NO.006

IMP Group International Incorporated, a body corporate of Halifax, Halifax County, Nova Scotia (appellant) v. The Attorney General of Nova Scotia, representing Her Majesty for Queen in Right of the Province of Nova Scotia (respondent)

(Hfx. No. 285603; 2013 NSSC 332)

Indexed As: IMP Group International Inc. v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

Stewart, J.

October 30, 2013.

Summary:

In August 2007, the Minister of Environment issued an order which stated that IMP Group International Inc. had contravened s. 67(2) of the Environment Act by contaminating groundwater. The order imposed a duty on IMP to take remedial measures. IMP appealed the order under s. 138(1) of the Act, arguing, inter alia, that the Minister failed to consider certain factors as required by s. 129(1) of the Act. IMP moved for an order requiring the Attorney General to "produce all documents within the possession of the Province relevant to the factors mandated by s. 129 of the Environment Act in relation to the Ministerial Order under appeal ...". The Attorney General opposed the motion on the grounds that IMP had not made out an evidentiary basis for disclosure.

The Nova Scotia Supreme Court dismissed the motion.

Administrative Law - Topic 6267

Judicial review - Statutory appeal - Record on appeal - Material which must be supplied by tribunal appealed from - [See Crown - Topic 685 ].

Administrative Law - Topic 6282

Judicial review - Statutory appeal - Practice - Evidence (incl. new evidence) - [See Crown - Topic 685 ].

Crown - Topic 685

Authority of ministers - Exercise of - Administrative or policy decisions - Appeals or judicial review - Pursuant to s. 138(1) of the Environment Act, IMP Group International Inc. appealed an order of the Minister of the Environment which imposed a duty on IMP to take remedial measures as a result of its contravention of the Act (groundwater contamination) - IMP moved for an order requiring the Attorney General to "produce all documents within the possession of the Province relevant to the factors mandated by s. 129 of the Environment Act in relation to the Ministerial Order under appeal ...", potentially followed by discovery - The Nova Scotia Supreme Court dismissed the motion - Discovery and documentary disclosure were not absolutely precluded on statutory appeal - However, such procedures were available only in exceptional circumstances - The Minister's order was sheltered by a presumption of regularity - In order to rebut that presumption and justify disclosure and discovery, IMP had to establish valid reasons to believe that the order was outside the ambit of the relevant provisions of the Act, and that the record was insufficient to provide a basis for review - Those valid reasons had to have an evidentiary basis, usually by affidavit - IMP presented no evidence in support of the need for disclosure, other than alleging that the record indicated that there were other materials in the Minister's hands that were relevant to the proceeding - There was no authority for the proposition that all documents in the Minister's possession had to be included in the record - IMP did not explain why the usual evidentiary requirement, which normally required a motion to be supported by affidavit evidence, should be set aside in this case - There was no legal or factual basis for ordering disclosure.

Pollution Control - Topic 9402

Appeals or judicial review - Scope of appeal or review - [See Crown - Topic 685 ].

Practice - Topic 4158

Discovery - General principles - Discovery of Crown - [See Crown - Topic 685 ].

Practice - Topic 4232

Discovery - Examination - Persons who may be examined - Crown - [See Crown - Topic 685 ].

Practice - Topic 4560

Discovery - Production and inspection of documents - Conditions precedent to production - [See Crown - Topic 685 ].

Cases Noticed:

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 6].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Waverley (Village Commissioners) et al. v. Kerr et al. (1994), 129 N.S.R.(2d) 298; 362 A.P.R. 298 (C.A.), folld. [para. 27].

T.G. v. Nova Scotia (Minister of Community Services) et al., [2011] N.S.R.(2d) Uned. 300; 2011 NSSC 356, refd to. [para. 37].

Hartwig v. Saskatchewan (Inquiry into Matters Relating to the Death of Stonechild, Commissioner) - see Stonechild, Re.

Stonechild, Re (2007), 304 Sask.R. 1; 413 W.A.C. 1; 2007 SKCA 74, leave to appeal dismissed (2008), 392 N.R. 397 (S.C.C.), refd to. [para. 38].

Canada Life Assurance Co. v. Nova Scotia (Minister of Municipal Affairs) et al. (1996), 150 N.S.R.(2d) 360; 436 A.P.R. 360 (C.A.), refd to. [para. 41].

White v. Workers' Compensation Board Appeals Commission (Alta.) (2006), 400 A.R. 183; 2006 ABQB 359, refd to. [para. 42].

Friends of Cypress Provincial Park Society v. British Columbia (Minister of Environment, Lands and Parks), [2000] B.C.T.C. 208; 2000 BCSC 466, refd to. [para. 43].

Riley v. Nova Scotia (Minister of Community Services) et al. (2011), 308 N.S.R.(2d) 185; 976 A.P.R. 185; 2011 NSSC 387, refd to. [para. 44].

Brar et al. v. College of Veterinarians (B.C.) et al., [2011] B.C.T.C. Uned. 215; 2011 BCSC 215, refd to. [para. 46].

Nechako Environmental Coalition v. British Columbia (Minister of Environment, Lands and Parks) et al., [1997] B.C.T.C. Uned. B73 (S.C.), refd to. [para. 46].

Kinexus Bioinformatics Corp. v. Asad et al., [2010] B.C.T.C. Uned. 33; 2010 BCSC 33, refd to. [para. 46].

SELI Canada Inc. et al. v. Construction and Specialized Workers' Union, Local 1611 et al., [2010] B.C.T.C. Uned. 243; 2010 BCSC 243, refd to. [para. 47].

Kawartha Lakes (City) v. Gendron et al. (2013), 307 O.A.C. 264; 2013 ONCA 310, refd to. [para. 48].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (5th Ed. 2011), pp. 202 to 206 [para. 21].

Brown and Evans, Judicial Review of Administrative Action in Canada (Looseleaf), §6:5300 [paras. 23, 24].

Kristjanson, Freya, The Record on Judicial Review (2013), 41:4 Adv. Q. 387, p. 397 [para. 22].

Counsel:

John P. Merrick, Q.C., and Kelly L. Buffet, for the appellant;

Peter McVey, for the respondent.

This motion was heard at Halifax, N.S., on July 30, 2013, before Stewart, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 30, 2013.