Morrison Estate et al. v. Nova Scotia (Attorney General) et al., 2009 NSCA 116

• Judge: Beveridge, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: August 28, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 116;(2009), 284 N.S.R.(2d) 292 (CA)

Morrison Estate v. N.S. (A.G.) (2009), 284 N.S.R.(2d) 292 (CA);

    901 A.P.R. 292

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. NO.057

The Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia (Department of Health), The Minister of Health for the Province of Nova Scotia at the relevant time and The Executive Director of Continuing Care for the Province of Nova Scotia (appellants) v. The Estate of Elmer Stanislaus Morrison, By His Executor or Representative Joan Marie Morrison, Joan Marie Morrison, John Kin Hung Lee, By His Legal Guardian Elizabeth Lee and Elizabeth Lee (respondents)

(CA 315014; 2009 NSCA 116)

Indexed As: Morrison Estate et al. v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

Beveridge, J.A.

November 16, 2009.

Summary:

The defendants applied for an order requiring the plaintiffs to provide further and better particulars. The plaintiffs argued that the application was premature and should be stayed pending a determination of their application for certification of the action as a class proceeding. MacAdam, J., as the case management judge, stayed the defendants' motion for further and better particulars pending the determination of the plaintiffs' motion for certification (see 279 N.S.R.(2d) 311; 887 A.P.R. 311). The defendants appealed. The defendants applied for a stay of the certification hearing pending the outcome of the appeal. They also sought an order lifting MacAdam, J.'s, stay of the motion for particulars to enable that motion to be heard in advance of the certification hearing.

The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the defendants' application.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - MacAdam, J., stayed the defendants' motion for further and better particulars pending the determination of the plaintiffs' motion for certification of the action as a class proceeding - The defendants appealed and applied for a stay of the certification hearing pending the outcome of the appeal - The Nova Scotia Court of Appeal, per Beveridge, J.A., held that a single judge of the Court of Appeal had the power to grant the kind of relief being requested - Rule 90.41(2) of the new Civil Procedure Rules empowered a judge to not merely stay the execution and enforcement of any judgment appealed from but also to "grant such other relief against such a judgment or order, on such terms as may be just" - The decision in RJR-MacDonald Inc. (S.C.C.) was persuasive authority that the language of rule 90.41(2) to "grant such other relief against such a judgment or order", was broad enough to found the requisite jurisdiction to grant relief from the effects of the judgment being appealed from - See paragraphs 21 to 43.

Courts - Topic 6050

Provincial courts - Nova Scotia - Court of Appeal - Jurisdiction - Single judge - [See Courts - Topic 2110 ].

Practice - Topic 8951

Appeals - Stay of proceedings pending appeal - Jurisdiction - [See Courts - Topic 2110 ].

Practice - Topic 8953

Appeals - Stay of proceedings pending appeal - Circumstances when stay may be lifted - MacAdam, J., stayed the defendants' motion for further and better particulars pending the determination of the plaintiffs' motion for certification of the action as a class proceeding - The defendants appealed - The defendants applied for a stay of the certification hearing pending the outcome of the appeal - They also sought an order lifting MacAdam, J.'s, stay of the motion for particulars to enable that motion to be heard in advance of the certification hearing - The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the application - With respect to the second aspect of the relief sought, the court stated that "The relief sought is what they would get if they were ultimately successful on the appeal - the requested particulars prior to the certification hearing. It would therefore be inappropriate to grant the second aspect of the relief sought" - See paragraph 27.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - MacAdam, J., stayed the defendants' motion for further and better particulars pending the determination of the plaintiffs' motion for certification of the action as a class proceeding - The defendants appealed and applied for a stay of the certification hearing pending the outcome of the appeal - The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the application - There was an arguable issue raised on the appeal - However, the defendants had not established irreparable harm - For the most part, the defendants' claim of irreparable harm was the procedural unfairness they said they would suffer if forced to litigate the certification hearing without the requested particulars - However, the defendants had conceded that a number of requested particulars were not needed, let alone prior to the certification hearing - Further, the chambers judge hearing the certification hearing was in the best position to assess any claim of procedural unfairness - If there was procedural unfairness and the chambers judge certified the proceeding as a class proceeding, the defendants had a right of appeal that they could then pursue - Lastly, the certification of the class, if it occurred, was not a final judgment - Section 11(4) and s. 13 of the Class Proceedings Act provided authority to the court to decertify the proceeding or make amendments to the definition of the class or the common issues - While the defendants argued that this would increase the cost of the litigation and waste scarce judicial resources, an increase in litigation costs and the possibility of wasting judicial resources did not constitute irreparable harm - The defendants had also not established that the balance of convenience lay with them - See paragraphs 44 to 64.

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See Practice - Topic 8954 ].

Practice - Topic 8959

Appeals - Stay of proceedings pending appeal - Considerations - MacAdam, J., stayed the defendants' motion for further and better particulars pending the determination of the plaintiffs' motion for certification of the action as a class proceeding - The defendants appealed - The defendants applied for a stay of the certification hearing pending the outcome of the appeal - The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the application based on the three part primary test - The court also considered the secondary test established by Fulton Insurance Agencies Ltd. v. Purdy (N.S.C.A.), which required that the court be satisfied that there were "exceptional circumstances" requiring the granting of a stay - Although the defendants argued that class proceedings in Nova Scotia were relatively novel, and appellate consideration of the requisite particularity required in pleadings prior to a certification hearing would be of great precedential value, the court held that the relative novelty of class proceedings in Nova Scotia was not an exceptional circumstance - See paragraphs 65 to 66.

Cases Noticed:

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 3].

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), consd. [para. 22].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 23].

First Mortgage Nova Scotia Fund (III) Inc. et al. v. HSBC Capital Inc. (2000), 192 N.S.R.(2d) 362; 599 A.P.R. 362; 2000 NSCA 145, refd to. [para. 28].

El Qaoud v. Orabi, [2004] N.S.R.(2d) Uned. 109; 2004 NSCA 104, refd to. [para. 29].

Children's Aid Society and Family Services of Colchester County v. D.T., 1992 CanLII 4781 (N.S.C.A.), refd to. [para. 30].

Quigley v. Willmore (2007), 260 N.S.R.(2d) 295; 831 A.P.R. 295; 2007 NSCA 122, refd to. [para. 30].

R. v. Dempsey (B.) (1995), 138 N.S.R.(2d) 110; 394 A.P.R. 110 (C.A.), refd to. [para. 31].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 35].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 45].

MacCulloch v. McInnes, Cooper & Robertson (2000), 186 N.S.R.(2d) 398; 581 A.P.R. 398; 2000 NSCA 92, refd to. [para. 46].

Hoy v. Medtronic Inc. et al., [2000] B.C.T.C. 1090; 2000 BCSC 1902, refd to. [para. 50].

Milne and Tweedie v. Twin Mountain Construction Ltd. (2003), 214 N.S.R.(2d) 39; 671 A.P.R. 39; 2003 NSCA 41, refd to. [para. 53].

R. v. MacIntosh (E.F.) (2008), 268 N.S.R.(2d) 131; 857 A.P.R. 131; 2008 NSCA 73, refd to. [para. 56].

2502731 Nova Scotia Ltd. v. Plazacorp Retail Properties Ltd., [2004] N.S.R.(2d) Uned. 83; 2004 NSCA 62, refd to. [para. 61].

Grafton Street Restaurant Ltd. v. Nova Scotia Utility and Review Board et al., [2002] N.S.R.(2d) Uned. 64; 2002 NSCA 97, refd to. [para. 61].

Whebby (W.E.) Ltd. v. Boehner (D.) Trucking & Excavating Ltd. et al. (2006), 249 N.S.R.(2d) 326; 792 A.P.R. 326; 2006 NSCA 129, refd to. [para. 65].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 90.41 [para. 33].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance (2007 Looseleaf Update), para. 2.370 [para. 56].

Counsel:

Alison Campbell, for the appellants;

Michael Dull and Anna Marie Butler, for the respondents.

This application was heard in Chambers on August 28, 2009, before Beveridge, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on November 16, 2009.