Nova Scotia (Attorney General) v. Royal & Sun Alliance Insurance Co. of Canada et al., 2005 NSSC 126

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 18, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 126;(2005), 233 N.S.R.(2d) 280 (SC)

N.S. (A.G.) v. Royal & Sun (2005), 233 N.S.R.(2d) 280 (SC);

 739 A.P.R. 280

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. JN.016

The Attorney General of Nova Scotia, Representing Her Majesty the Queen in Right of the Province of Nova Scotia (plaintiff) v. Royal & Sun Alliance Insurance Company of Canada, Guardian Insurance Company of Canada, the Halifax Insurance Company, Wellington Insurance Company, General Accident Assurance Company of Canada and Quebec Assurance Company (defendants)

(S.H. 149142; 2005 NSSC 126)

Indexed As: Nova Scotia (Attorney General) v. Royal & Sun Alliance Insurance Co. of Canada et al.

Nova Scotia Supreme Court

Moir, J.

May 27, 2005.

Summary:

The Province was sued on account of alleged physical or sexual abuse of children by provincial employees at provincial institutions. The Province settled the claims through alternate dispute resolution (ADR). The Province sued six insurers, alleging that they breached their duty to defend the Province. The Province sought to recover the settlement payments and other losses. The insurers defended on the basis, inter alia, that the Province negligently operated the ADR process. The Minister of Justice asked Kaufman, a retired justice, to investigate and report on the ADR process. Kaufman made scathing criticisms of the process. The insurers applied for an order to compel the production of documents generated in Kaufman's investigation. Kaufman resisted.

The Nova Scotia Supreme Court, in a decision reported at 218 N.S.R.(2d) 277; 687 A.P.R. 277, allowed the application, holding that Kaufman was an agent of the Province. Kaufman applied for leave to appeal.

The Nova Scotia Court of Appeal granted leave to appeal and allowed the appeal, without prejudice to the insurers applying for production from Kaufman as a non-party. Baker, the Minister of Justice, submitted voluntarily to discovery examination. He had nothing to do with the initiation of the compensation programmes and little to do with their administration, but had appointed Kaufman to conduct the ministerial inquiry. The insurers applied for an order that Baker's discovery evidence was given by "an officer, director or manager of a party that is a corporation, partnership or association" within the meaning of rule 18.14(1)(b) such that any part of the evidence could be used "[a]t a trial or upon a hearing of an application ... for any purpose by an adverse party". The Crown opposed the application.

The Nova Scotia Supreme Court allowed the application.

Crown - Topic 2885

Crown immunity - Exceptions - Benefit/ burden or waiver exception - The Nova Scotia Supreme Court held that the Crown was bound by Civil Procedure Rule 18.14 (use of depositions as evidence) in situations where it took full advantage of the Rules - The court stated that "When the Crown takes advantage of a statute, it must accept the attendant disadvantages. To that extent, the Crown waives its immunity from statute law when it takes advantage of an enactment not expressed to bind the Crown." - See paragraphs 17 to 25.

Practice - Topic 4494

Discovery - Use of examination in court or other proceedings - Evidence of authorized spokesman of corporation - The Nova Scotia Supreme Court stated that "The basis of Rule 18.14(1)(b) is that officers can make admissions on behalf of corporations. Although we do not have a system under which a corporate party puts up just one witness for discovery, our rule makes no allowance for variations in authority among various officers. So, if officers commented at discovery about something completely outside their authority, Rule 18.14(1)(b) would appear to let the comment in at trial as a sort of deemed admission. To that extent Rule 18.14(1)(b) does affect admissibility. Of course, value or weight is another matter. The corporate party would be free to adduce evidence tending to show the want of authority and they would be free to call more knowledgeable or authoritative witnesses to contradict what had been said at discovery but I do not think they could keep it out." - See paragraph 11.

Practice - Topic 4494

Discovery - Use of examination in court or other proceedings - Evidence of authorized spokesman of corporation - At issue was whether the discovery evidence of a Minister of the provincial Crown was given by "an officer, director or manager of a party that is a corporation, partnership or association" within the meaning of Civil Procedure Rule 18.14(1)(b) such that any part of the evidence could be used "[a]t a trial or upon a hearing of an application ... for any purpose by an adverse party" - The Nova Scotia Supreme Court held that the Crown was a "corporation" and the Minister was an "officer of a corporation" under rule 18.14(1)(b).

Practice - Topic 5268

Trials - General - Trial of preliminary issues - Bars - Civil Procedure Rule 25.01(1)(a) provided that "The court may, on the application of any party or on its own motion, at any time prior to a trial or hearing, determine any relevant question or issue of law or fact, or both" - The Nova Scotia Supreme Court held that "resort cannot be had to Rule 25.01(1)(a) where there are material facts that cannot be determined without trial unless justice demands that a rare exception be made. Complete agreement on all material facts is one approach to Rule 25.01(1)(a), but where the moving party presents affidavits and no other party puts the evidence into contention another approach appears. An issue may be resolved before trial under Rule 25.01(1)(a) unless resolution of the issue turns on any material fact requiring a trial for its determination." - See paragraphs 1 to 7.

Words and Phrases

Corporation - The Nova Scotia Supreme Court held that the provincial Crown was a "corporation" within the meaning of this word as found in rule 18.14(1)(b) of the Civil Procedure Rules (N.S.) - See paragraphs 26 to 37.

Words and Phrases

Officer of a corporation - The Nova Scotia Supreme Court held that a Minister of the provincial Crown was an "officer" and the Crown was a "corporation" within the meaning of these words as found in rule 18.14(1)(b) of the Civil Procedure Rules (N.S.) - See paragraphs 26 to 37.

Cases Noticed:

Copage et al. v. Annapolis Valley Indian Band (2004), 223 N.S.R.(2d) 184; 705 A.P.R. 184 (S.C.), revd. (2004), 228 N.S.R.(2d) 284; 723 A.P.R. 284 (C.A.), refd to. [para. 4].

Children's Aid Society of Halifax v. C.V. and L.F. (2004), 223 N.S.R.(2d) 108; 705 A.P.R. 108 (S.C.), refd to. [para. 5].

Midland Doherty Ltd. v. Rohrer and Central Trust Co. (1983), 62 N.S.R.(2d) 73; 136 A.P.R. 73 (T.D.), refd to. [para. 11].

Thornhill v. Dartmouth Broadcasting Ltd. et al. (1981), 45 N.S.R.(2d) 111; 86 A.P.R. 111 (S.C.), refd to. [para. 17].

Sparling v. Quebec, [1988] 2 S.C.R. 1015; 89 N.R. 120; 20 Q.A.C. 174, refd to. [para. 18].

Neary v. Nova Scotia (Attorney General) and MacDonald (1994), 137 N.S.R.(2d) 31; 391 A.P.R. 31 (C.A.), refd to. [para. 18].

Crooke's Case, Re (1691), 1 Show. K.B. 208; 89 E.R. 540, refd to. [para. 19].

Toronto Transportation Commission v. R., [1949] S.C.R. 510, refd to. [para. 19].

R. v. Murray et al., [1967] S.C.R. 262, refd to. [para. 19].

Alberta v. Canadian Transport Commission - see Pacific Western Airlines Ltd., Re.

PWA Case - see Pacific Western Airlines Ltd., Re.

Pacific Western Airlines Ltd., Re, [1978] 1 S.C.R. 61; 14 N.R. 211; 2 A.R. 539, refd to. [para. 19].

CNCP Telecommunications v. Alberta Government Telephones and CRTC, [1989] 2 S.C.R. 225; 98 N.R. 161, refd to. [para. 22].

Bombay (Province) v. Bombay (City), [1947] A.C. 58 (P.C.), refd to. [para. 26].

Keable Commission Case - see Keable and Quebec (Attorney General) v. Canada (Attorney General).

Keable and Quebec (Attorney General) v. Canada (Attorney General), [1979] 1 S.C.R. 218; 24 N.R. 1; 90 D.L.R.(3d) 161, refd to. [para. 26].

Leeds et al. v. Alberta (Minister of Environment) et al., [1989] 6 W.W.R. 559; 98 A.R. 178 (C.A.), refd to. [para. 28].

British Columbia Teachers' Federation v. British Columbia, [1986] 2 W.W.R. 469 (B.C.S.C.), refd to. [para. 28].

Associated Investors of Canada Ltd., Re - see Canada Deposit Insurance Corp. v. Code.

Canada Deposit Insurance Corp. v. Code (1988), 84 A.R. 241; 49 D.L.R.(4th) 57 (C.A.), refd to. [para. 29].

Canada Deposit Insurance Corp. v. Oland - see Canada Deposit Insurance Corp. et al. v. Prisco.

Canada Deposit Insurance Corp. et al. v. Prisco et al. (1997), 206 A.R. 283; 156 W.A.C. 283; 53 Alta. L.R.(3d) 192 (C.A.), refd to. [para. 29].

Control Data Canada Ltd. v. Senstar Corp. (1986), 7 F.T.R. 58; 8 C.P.R.(3d) 567 (T.D.), refd to. [para. 30].

Anthony v. Alberta, [1942] 1 W.W.R. 833 (Alta. T.D.), refd to. [para. 30].

R. v. Smith, [1927] 2 D.L.R. 69 (Alta. C.A.), refd to. [para. 30].

Crombie v. R., [1923] 2 D.L.R. 542 (Ont. C.A.), refd to. [para. 30].

Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 32].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [para. 32].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al., [2003] 1 S.C.R. 476; 304 N.R. 1; 2003 SCC 28, refd to. [para. 32].

H.L. v. Canada (Attorney General) et al. (2005), 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 32].

Stubart Investments Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 536; 53 N.R. 241, refd to. [para. 32].

Canada v. Antosko, [1994] 2 S.C.R. 312; 168 N.R. 16, refd to. [para. 32].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 18.14(1)(b) [para. 10]; rule 25.01(1)(a) [para. 4].

Authors and Works Noticed:

Driedger, Elmer A., The Construction of Statutes (1st Ed. 1974), p. 149 [para. 32].

McNairn, Colin H.H., Governmental and Intergovernmental Immunity in Australia and Canada (1977), p. 10 [para. 18].

Counsel:

Robert M. Purdy, Q.C., Peter M. Rogers and Adriana Meloni, for the Attorney General of Nova Scotia;

George W. MacDonald, Q.C., and Jane E. O'Neill, for the Halifax Insurance Co. and Wellington Insurance Co.;

Michael E. Dunphy, Q.C., and Daniel W. Ingersoll, for General Accident Assurance Co. of Canada;

Matthew G. Williams, for Royal & Sun Alliance Insurance Co. of Canada and Quebec Assurance Co.

This application was heard on March 18, 2005, by Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision at Halifax, Nova Scotia, on May 27, 2005.