MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry), (1988) 85 N.S.R.(2d) 126 (TD)

• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 10, 1988
• Jurisdiction: Nova Scotia
• Citations: (1988), 85 N.S.R.(2d) 126 (TD)

MacKeigan, J.A. v. Royal Comm. (1988), 85 N.S.R.(2d) 126 (TD);

    216 A.P.R. 126

MLB headnote and full text

Ian M. MacKeigan, Gordon L.S. Hart, Malachi Jones, Angus L. MacDonald and Leonard L. Pace (plaintiffs) v. T. Alexander Hickman, Lawrence A. Poitras and Gregory Thomas Evans (defendants)

(S.H. No. 63241)

Indexed As: MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry)

Nova Scotia Supreme Court

Trial Division

Glube, C.J.T.D.

March 15, 1988.

Summary:

A Royal Commission was appointed under the Public Inquiries Act to inquire into the 1971 murder conviction of Donald Marshall and subsequent acquittal in 1983 by the Nova Scotia Court of Appeal on the ground that Marshall was wrongfully convicted. The Commission issued "Orders to Attend" to the five Justices of the Court of Appeal who sat on the Marshall Reference, requiring the Justices to attend and testify at the inquiry. The Justices applied for various prerogative relief, seeking to quash the "Orders to Attend", submitting that Justices of the Court of Appeal could not be compelled to testify before a public inquiry. Marshall applied under rule 8.01 to be added as an intervenor on the ground that his "financial interests and reputation will be affected if the plaintiff Justices are not compelled to testify ...".

The Nova Scotia Supreme Court, Trial Division, dismissed the application. The court held that the issue in the proceeding was one of law, whether Justices of the Court of Appeal were required to testify before a public inquiry. The court held that Marshall, although affected, lacked a sufficient interest in the subject matter of the proceeding.

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Re interest in subject matter - A Royal Commission was appointed under the Public Inquiries Act to inquire into the 1971 murder conviction of Donald Marshall and subsequent acquittal in 1983 by the Nova Scotia Court of Appeal on the ground that Marshall was wrongfully convicted - The Commission issued "Orders to Attend" to the five Justices of the Court of Appeal who sat on the Marshall Reference, requiring the Justices to attend and testify at the inquiry - The Justices applied for various prerogative relief, seeking to quash the "Orders to Attend", submitting that Justices of the Court of Appeal could not be compelled to testify before a public inquiry - Marshall applied under rule 8.01 to be added as an intervenor on the ground that his "financial interests and reputation will be affected if the plaintiff Justices are not compelled to testify ..." - The Nova Scotia Supreme Court, Trial Division, dismissed the application - The court held that the issue in the proceeding was one of law, whether Justices of the Court of Appeal were required to testify before a public inquiry - The court held that Marshall, although affected, lacked a sufficient interest in the subject matter of the proceeding.

Cases Noticed:

Halifax Flying Club v. Maritime Builders Ltd. (1973), 5 N.S.R.(2d) 364, refd to. [para. 11].

Anderson and Anderson v. Cooperative Fire and Casualty Company (1983), 58 N.S.R.(2d) 163; 123 A.P.R. 163, refd to. [para. 14].

Municipality of the County of Kings v. Cogswell and Cogswell (1985), 69 N.S.R.(2d) 421; 163 A.P.R. 421, refd to. [para. 14].

Attorney General of Nova Scotia v. Beaver, Fullager et al. (1984), 66 N.S.R.(2d) 419; 152 A.P.R. 419, refd to. [para. 28].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 8.01 [para. 10]; rule 8.02 [para. 26]; rule 38.02 [para. 3].

Authors and Works Noticed:

Meagher, A.J., and Meagher, R.A., Civil Procedure Simplified (1983), p. 76 [para. 4].

Williston and Rolls, The Law of Civil Procedure (1970), vol. 1, pp. 258, 260 [para. 6].

Supreme Court Practice (Cent. Ed. 1982), vol. 1, pp. 212-214 [para. 7].

Supreme Court Practice (3rd Cumm. Supp. 1982), para. 15/6/9 [para. 8].

Counsel:

Clayton Ruby and Anne S. Derrick, for Donald Marshall, Jr.;

Ronald J. Downie, Q.C., for the plaintiffs;

No one appearing on behalf of the defendants.

This application was heard on March 10, 1988, before Glube, C.J.T.D., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on March 15, 1988.