Canadian National Railway Company v. Halifax (Regional Municipality), 2013 NSSC 12

SUPREME COURT OF NOVA SCOTIA Citation: Canadian National Railway Company v. Halifax (Regional Municipality), 2013 NSSC 12 Date: 20120107 Docket: Hfx 358564 Registry: Halifax Between: Canadian National Railway Company Applicant v. Halifax Regional Municipality Respondent Judge: The Honourable Justice Patrick Duncan Heard: November 20, 2012, in Halifax, Nova Scotia Final Written Submissions: November 24, 2012 Counsel: Dennis James and Melissa MacAdam, for the Applicant Michael F. Donovan, Q.C., for the Respondent By the Court : Introduction [ 1 ] Canadian National Railway Company (CNR) filed an Application seeking a court resolution of a dispute as to the

interpretation of certain aspects of an agreement entered into with the respondent Halifax Regional Municipality (HRM) for maintenance of various overhead structures and subway structures within the Municipality. The respondent has filed a Notice of Contest. The matter is set for hearing on May 6 and 7, 2013. [ 2 ] Disagreements have arisen as to the admissibility of the information set out in affidavits filed on behalf of the parties. HRM

brought a motion to strike portions of affidavits filed by the applicant and in a decision reported as Canadian National Railway Company v. Halifax (Regional Municipality) 2012 NSSC 300 , LeBlanc J. of this court granted the motion. [ 3 ] Subsequently, both parties brought further motions to strike paragraphs from affidavits filed on behalf of the opposing party.

On November 20, 2012 I gave an oral decision (unreported) which provided a mixed result in response to the motion of CNR, holding that certain paragraphs of affidavits filed on behalf of HRM be struck, but concluding that others would not be struck and others would be left to the discretion of the hearing judge to determine admissibility and weight. [ 4 ] In the same decision I granted the motion brought by HRM to strike paragraphs in rebuttal affidavits filed on behalf of CNR. [ 5 ] At the conclusion of my decision I directed the parties to provide written submissions on the effect of my rulings in relation to certain paragraphs of affidavits on file, but that were not subject to the motions before me.

I also invited submissions with respect costs in the event that the parties could not otherwise agree. I now have written submissions from both parties on these questions.

Analysis [ 6 ] I previously ruled that paragraph 9 in the July 31, 2012 affidavit of the Catherine O'Toole, and paragraph 21 in the March 30, 2012 affidavit of Mary Ellen Donovan, constituted inadmissible hearsay in that they reported on a statement made by HRM engineer David Hubley at the contract negotiation meeting. [ 7 ] Certain paragraphs in the rebuttal affidavits of Dominique Poirier and David Reynolds similarly provided recollections of the Hubley statements. HRM did not originally object to these paragraphs since they believed them to be appropriate responses to their own affidavits.

However, in light of my ruling, HRM now takes the position that a number of paragraphs in these rebuttal affidavits ought to be struck as they were intended to be in response to information now held to be inadmissible. The applicant, CNR, agrees with much of the position advanced by HRM, but not entirely.

Dominique Poirier rebuttal affidavit sworn September 19, 2012 [ 8 ] I order that paragraph 6 of the Poirier affidavit be struck on the basis that it constitutes inadmissible hearsay. [ 9 ] I order that paragraphs 9 and 10 of the Poirier affidavit be struck as they are referring specifically to paragraphs of the respondent's affidavits that have been struck.

David Reynolds rebuttal affidavit sworn August 31, 2012 [ 10 ] I order that paragraphs 6, 7 and 9 in the affidavit of David Reynolds be struck as they are intended to respond to paragraphs now struck from HRM affidavits. [ 11 ] As to paragraph 10 of the Reynolds affidavit, the parties agree that only a portion of that paragraph should be struck in that it is a response to paragraph 9 of the O'Toole affidavit. The balance of paragraph 10 is properly admissible and therefore I direct that the following words be struck from paragraph 10 of the Reynolds affidavit:

I see that she indicated at paragraph 9 that Mr. Hubley explained what HRM's responsibility for roads would normally consist of, limited to the asphalt, base and sub base. She then asserts that CN would be responsible for everything below that, suggesting that she does not recall any dispute about that fact. I recall discussion about the point, but do not recall who made the assertion. I also recall that it was never agreed to while I was present at the meeting. [ 12 ] Paragraphs 11 and 12 of Mr. Reynolds' affidavit are asserted by HRM to be a response to paragraphs 5 and 6 of an affidavit provided by a Mr.

Mark Tinmouth, and that for reasons that follow all four paragraphs in these two affidavits should be struck. [ 13 ] Mr. Tinmouth reports on the Hubley statement in terms that are similar to paragraph 9 of the O'Toole affidavit and paragraph 21 of the Donovan affidavit which I have ordered struck. Mr. Tinmouth also indicates that Mr. Hubley referred to "subgrade" in addition to what was reported by Ms. O'Toole and Ms.

Donovan. [ 14 ] HRM submits that paragraph 5 and 6 of the Tinmouth affidavit should be struck as inadmissible hearsay, applying the same rationale that was applied to striking paragraphs 9 and 21 from the O'Toole and Donovan affidavits respectively. HRM says that if they are not struck then HRM will withdraw those paragraphs from evidence.

Logically flowing from this result is that paragraphs 11 and 12 of the Reynolds affidavit would also be struck since they are a response to paragraphs 5 and 6 of the Tinmouth affidavit. [ 15 ] CNR agrees that paragraph 5 of the Tinmouth affidavit is sufficiently similar to others previously struck that it too should be struck. Similarly, they agree that paragraph 11 of the Reynolds affidavit should be struck. They disagree however with submissions that paragraph 6 of the Tinmouth affidavit be removed and correspondingly they say that paragraph 12 of the Reynolds affidavit should remain.

In support of its position, CNR takes the view that paragraph 6 of the Tinmouth affidavit refers to details of "layers", not a relating of Mr. Hubley's discussion, which I have previously determined to be inadmissible. [ 16 ] I agree with the position taken by HRM and conclude that to allow paragraph 6 in the Tinmouth affidavit and the reply paragraph 12 in Mr. Reynolds' affidavit to remain in evidence would constitute an injustice to HRM, as it would allow one of two versions of Mr. Hubley's statement to remain in the affidavit evidence while striking out the other versions as hearsay.

Paragraph 6 of the Tinmouth affidavit is no different in character - it is the affiant ’ s account of what Mr. Hubley is alleged to have said. It is inadmissible hearsay. [ 17 ] The overall result of my decisions is that the notes made by the affiants of the negotiation will remain in their affidavits, but without the impugned commentary on the notes that has been set out in the text of the affidavits. [ 18 ] Therefore, I direct that paragraphs 11 and 12 in the affidavit of David Reynolds be struck. I also direct the paragraphs 5 and 6 in the Mark Tinmouth affidavit be struck.

Costs [ 19 ] Success was divided on CNR's motion. Costs in relation to that motion will be in the cause and set at $750 under Tariff C of Nova Scotia Civil Procedure Rule 77 which applies for a motion that takes more than one hour, but less than a half day.

This is consistent with the amount agreed upon by the parties for the motion previously heard by LeBlanc J on similar questions. [ 20 ] In my decision of November 20, 2012, I granted the motion of HRM to strike paragraph 8 of the rebuttal affidavit of Dominique Poirier and paragraph 8 of David Reynolds' rebuttal affidavit because their content was essentially the same as that which had been struck from their initial affidavits in the decision of Justice LeBlanc.

At paragraph 26 to 28 of his decision LeBlanc J. concluded that the original versions of these paragraphs were irrelevant in that they spoke to the affiant's subjective belief of how the agreement should be interpreted.

[ 21 ] HRM submits that it should have been apparent to CNR that these paragraphs were inadmissible and therefore its motion should not have been necessary.

For this reason it submits that an award of $500 should be made payable to HRM in the cause representing indemnification at the higher end of the range set out in Tariff C . [ 22 ] CNR responds that costs in relation to this motion should be minimal and in the cause. [ 23 ] I conclude that the inclusion of the impugned paragraphs by CNR in the rebuttal affidavits was predictably subject to a successful challenge and therefore the motion of HRM should not have been necessary.

However, I agree that the amount of time required to address this question was nominal in relation to the overall length of the hearing and the issue was not complex. I therefore order that costs in the amount of $100 be made payable to HRM in the cause. Duncan, J.