MacQueen et al. v. Nova Scotia et al., (2014) 348 N.S.R.(2d) 221 (CA)

• Judge: Oland, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 15, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 348 N.S.R.(2d) 221 (CA);2014 NSCA 73

MacQueen v. N.S. (2014), 348 N.S.R.(2d) 221 (CA);

    1100 A.P.R. 221

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JL.045

The Attorney General of Canada, representing Her Majesty the Queen in Right of Canada (appellant) v. Neila Catherine MacQueen, Joseph M. Pettipas, Ann Marie Ross, Kathleen Iris Crawford, Sydney Steel Corporation, a body corporate, The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia (respondents)

Sydney Steel Corporation, a body corporate, and The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia (appellants) v. Neila Catherine MacQueen, Joseph M. Pettipas, Ann Marie Ross, Kathleen Iris Crawford, and the Attorney General of Canada representing Her Majesty the Queen in Right of Canada (respondents)

(CA 392560; CA 393200; 2014 NSCA 73)

Indexed As: MacQueen et al. v. Nova Scotia et al.

Nova Scotia Court of Appeal

Oland, Farrar and Bryson, JJ.A.

July 15, 2014.

Summary:

The plaintiffs sued for redress for alleged contamination of their persons and homes caused by the operation of a steel plant and coke ovens. Only Nova Scotia and Canada remained as defendants. The plaintiffs obtained an order certifying the claim as a class proceeding and determining the class boundaries (see 311 N.S.R.(2d) 354; 985 A.P.R. 354). The Attorney General of Nova Scotia obtained leave to appeal (see 324 N.S.R.(2d) 102; 1029 A.P.R. 102) and appealed.

The Nova Scotia Court of Appeal, in a decision reported at 338 N.S.R.(2d) 133; 1071 A.P.R. 133, allowed the appeal and set aside the certification order. The plaintiffs filed a motion for directions on their intended motion for reconsideration of the Court of Appeal's decision. They asserted that the Court of Appeal might have reached a different conclusion had it applied the reasoning in two decisions of the Supreme Court of Canada that were issued after the Court of Appeal's decision. At the hearing of the motion for directions, the Attorney General disputed the court's jurisdiction to hear the motion for reconsideration. The chambers judge ordered the parties to file written submissions on the jurisdiction issue to the panel of the Court of Appeal that had rendered the decision that the plaintiffs wished to have reconsidered.

The Nova Scotia Court of Appeal held that the intended motion for reconsideration would not proceed to a hearing on its merits.

Editor's note: Prior proceedings in this matter were indexed as MacQueen et al. v. Ispat Sidbec Inc. et al. and are reported at 246 N.S.R.(2d) 213; 780 A.P.R. 213; 253 N.S.R.(2d) 188; 807 A.P.R. 188; 274 N.S.R.(2d) 101; 874 A.P.R. 101; 319 N.S.R.(2d) 215; 1010 A.P.R. 215, and 379 N.R. 399.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The Court of Appeal set aside an order certifying a class action - The plaintiffs filed a motion for directions on their intended motion for reconsideration of the Court of Appeal's decision - They asserted that the Court of Appeal might have reached a different conclusion had it applied the reasoning in two decisions of the Supreme Court of Canada that were issued after the Court of Appeal's decision - The chambers judge ordered the parties to file written submissions on the jurisdiction issue to the panel of the Court of Appeal that had rendered the impugned decision - The plaintiffs asserted that the Court of Appeal's inherent jurisdiction permitted it to reconsider its own order in exceptional circumstances and that that jurisdiction was not extinguished by the doctrine of functus officio - The Nova Scotia Court of Appeal stated the general rule was that a court could not reopen a decision once an order was issued - Whatever inherent jurisdiction that the court might possess to reopen a decision after it had issued an order, it would only exercise it in "extraordinary, compelling and exceptional circumstances" "where justice manifestly so requires" - The situation here did not satisfy that criteria - Whether the Supreme Court of Canada would grant the plaintiffs' leave to appeal was not an appropriate consideration - Inherent jurisdiction was usually limited to procedural matters and even then was to be exercised with caution and reserved for "truly exceptional cases" - The plaintiffs' argument for reconsideration had not been the basis of a successful reconsideration hearing in Canada - Moreover, its acceptance would severely erode the principle of finality of judgments from courts which were subject to appeal - It would cause uncertainty and additional costs for litigants and might have far-reaching and unanticipated consequences for the administration of justice - See paragraphs 7 to 47.

Courts - Topic 2109

Jurisdiction - Appellate jurisdiction - Reconsideration of decisions - [See Courts - Topic 2004 ].

Courts - Topic 2183

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Appeal court - [See Courts - Topic 2004 ].

Courts - Topic 2189

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Orders - [See Courts - Topic 2004 ].

Courts - Topic 6043

Provincial courts - Nova Scotia - Court of Appeal - Inherent jurisdiction - [See Courts - Topic 2004 ].

Practice - Topic 5465

Judgments and orders - Finality of judgments and orders - Where judge functus officio - [See Courts - Topic 2004 ].

Practice - Topic 5467

Judgments and orders - Finality of judgments and orders - Judgments and orders subject to appeal - [See Courts - Topic 2004 ].

Practice - Topic 6101

Judgments and orders - Amendment, rescission and variation of judgments and orders - Jurisdiction - [See Courts - Topic 2004 ].

Practice - Topic 6106

Judgments and orders - Amendment, rescission and variation of judgments and orders - After judgment or order perfected or entered - [See Courts - Topic 2004 ].

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - [See Courts - Topic 2004 ].

Practice - Topic 9253

Appeals - Judgments by appeal court - Variation of - [See Courts - Topic 2004 ].

Cases Noticed:

Fischer et al. v. IG Investment Management Ltd. et al. (2013), 452 N.R. 80; 312 O.A.C. 128; 2013 SCC 69, refd to. [para. 3].

Dell'Aniello v. Vivendi Canada Inc. (2014), 453 N.R. 150; 2014 SCC 1, refd to. [para. 3].

Burke v. Sitser et al. (2002), 208 N.S.R.(2d) 337; 652 A.P.R. 337; 2002 NSCA 115, refd to. [para. 7].

Pennecon Energy Ltd. v. Metal World Inc. et al. (2014), 346 Nfld. & P.E.I.R. 302; 1078 A.P.R. 302; 2014 NLCA 10, refd to. [para. 7].

Midland Doherty v. Rohrer and Central Trust Company (1986), 70 N.S.R.(2d) 234; 166 A.P.R. 234 (C.A.), refd to. [para. 8].

Nova Scotia Government and General Employees Union v. Capital District Health Authority (2006), 246 N.S.R.(2d) 104; 780 A.P.R. 104; 2006 NSCA 85, refd to. [para. 9].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al. (2003), 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 10].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 16].

Halifax (Regional Municipality) v. Ofume (2003), 218 N.S.R.(2d) 234; 687 A.P.R. 234; 2003 NSCA 110, refd to. [para. 17].

Montreal Trust Co. v. Churchill Forest Industries (Manitoba) Ltd. (1972), 21 D.L.R.(3d) 75 (Man. C.A.), refd to. [para. 17].

College Housing Co-Operative Ltd. et al. v. Baxter Student Housing Ltd. et al., [1976] 2 S.C.R. 475; 5 N.R. 515, refd to. [para. 19].

Lord v. Smith (2013), 328 N.S.R.(2d) 189; 1039 A.P.R. 189; 2013 NSCA 34, refd to. [para. 19].

Marshall v. Truro (Town) et al. (2009), 283 N.S.R.(2d) 37; 900 A.P.R. 37; 2009 NSCA 89, refd to. [para. 19].

Country View Ltd. v. Dartmouth (City) (1974), 10 N.S.R.(2d) 361; 2 A.P.R. 361 (C.A.), refd to. [para. 20].

Nova Scotia (Director of Assessment, Municipal Board) v. D. Porter & Son Ltd., [1986] N.S.J. No. 510 (C.A.), refd to. [para. 24].

Hoffman v. Hoffman (2003), 217 N.S.R.(2d) 223; 683 A.P.R. 223; 2003 NSCA 101, refd to. [para. 24].

Hoffman v. Lamb - see Hoffman v. Hoffman.

Kern v. Steele (2004), 224 N.S.R.(2d) 92; 708 A.P.R. 92; 2004 NSCA 71, refd to. [para. 24].

R. v. Oliver (D.E.) (1996), 187 A.R. 147; 127 W.A.C. 147; 1996 CarswellAlta 680 (C.A.), dist. [para. 29].

Agriculture Financial Services Corp. v. Redmond (1998), 216 A.R. 321; 175 W.A.C. 321; 1998 CarswellAlta 507 (C.A.), dist. [para. 29].

Green et al. v. Canadian Imperial Bank of Commerce et al. (2014), 314 O.A.C. 315; 2014 ONCA 90, dist. [para. 29].

Bell, Re, 1947 CarswellOnt 318, dist. [para. 30].

W.W. Construction (Lethbridge) Ltd. et al. v. Red Deer College (1990), 104 A.R. 164; 1990 ABCA 20, refd to. [para. 31].

Strichen et al. v. Stewart (2005), 367 A.R. 188; 346 W.A.C. 188; 2005 ABCA 201, refd to. [para. 31].

Ayangma v. French School Board et al. (2011), 306 Nfld. & P.E.I.R. 103; 951 A.P.R. 103; 2011 PECA 3, refd to. [para. 33].

Menzies v. Harlos, [1989] B.C.J. No. 1160 (C.A.), refd to. [para. 36].

Armco Canada Ltd. v. PLC Construction Ltd., [1986] S.J. No. 799 (C.A.), refd to. [para. 38].

Jhajj v. Minister of Employment and Immigration et al. (1995), 94 F.T.R. 297 (T.D.), refd to. [para. 42].

Authors and Works Noticed:

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, p. 51 [para. 16].

Counsel:

Agnes E. MacNeil, Alex Cameron and Alison W. Campbell, for the appellants, Attorney General of Nova Scotia and Sydney Steel Corporation;

Paul Evraire, Q.C., Angela Green and Melissa Chan, for the appellant, Attorney General of Canada;

Raymond W. Wagner, Q.C., and C. Scott Ritchie, Q.C., for the respondents, Neila Catherine MacQueen, Joseph M. Pettipas, Ann Marie Ross and Kathleen Iris Crawford.

This matter was heard by way of written submissions received on April 4, 17 and 22, 2014, by Oland, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. Oland, J.A., delivered the following judgment for the court on July 15, 2014.