Halifax (Regional Municipality) v. Casey, 2011 NSCA 69

NOVA SCOTIA COURT OF APPEAL Citation: Halifax (Regional Municipality) v. Casey , 2011 NSCA 69 Date: 20110718 Docket: CA 351747 Registry: Halifax Between: Halifax Regional Municipality and Debbie Bonang Appellants/Applicants v. Darren Casey and Richard MacGillivray Respondents Judge: Fichaud, J.A. Motion Heard: July 14, 2011, in Halifax, Nova Scotia, in Chambers Held: Motion for stay dismissed with costs of $500 Counsel: Randolph Kinghorne for the Appellants/Applicants Anthony M.

Brunt for the Respondent, Darren Casey Michael Dunphy, Q.C. for the respondent, Richard MacGillivray Reasons for judgment : [ 1 ] The appellants, Halifax Regional Municipality and Ms. Bonang, apply for a stay of the chambers judge’s ruling that they file Affidavits Disclosing Documents.

Background [ 2 ] On January 10, 2006, Darren Casey sued Halifax Regional Municipality (HRM), Debbie Bonang and Dr. Richard MacGillivray. [ 3 ] Mr. Casey’s Statement of Claim alleges that: (1) he was a firefighter employed by HRM;

(2) Ms. Bonang was an occupational health nurse employed by HRM;

(3) Dr. MacGillivray was a psychologist employed with the Capital District Health Authority at the Queen Elizabeth II Hospital; (4) on March 5, 2004 Mr. Casey attended a marriage counselling session with Dr. MacGillivray;

(5) Mr. Casey did not authorize Dr. MacGillivray to disclose any information from that counselling session to HRM or Ms. Bonang; (6) on March 11, 2005 Mr. Casey was called to a meeting with Ms. Bonang, who advised Mr. Casey that, based on information received from Dr. MacGillivray, Ms. Bonang had concerns about Mr. Casey’s mental health; and

(7) Ms. Bonang told Mr. Casey that Mr. Casey would not be permitted to return to his employment unless he sought treatment for his mental health issues. [ 4 ] Mr. Casey’s Statement of Claim says Dr. MacGillivray committed breach of confidence and ethical standards and the tort of negligence and seeks damages. His Statement of Claim says that Ms. Bonang has not provided full and accurate disclosure of HRM’s file information respecting his medical condition, that she was negligent in the maintenance of his file and has falsified his personal information in HRM’s file. The Statement of Claim says that Ms.

Bonang committed the tort of negligence, for which HRM is vicariously liable, and seeks damages against Ms. Bonang and HRM. [ 5 ] On February 16, 2006, HRM and Ms. Bonang filed a Defence. The Defence did not question the court’s jurisdiction and said nothing of the collective agreement. The Defence admitted some of the allegations in the Statement of Claim, denied the others, “put the Plaintiff to the strict proof of any losses or damages”, alleged that Ms. Bonang “complied with the request of the Plaintiff, for materials from his personal file”, claimed that Mr.

Casey failed to mitigate and “puts the Plaintiff to the strict proof to the contrary”, and finally says that “[t]he Defendants plead and rely on the Contributory Negligence Act , 1989 R.S.N.S., c. 95". The Defence has not been amended to the hearing date of this stay motion. [ 6 ] Counsel informed me that Dr. MacGillivray has filed a Defence, the pleadings are closed, and Mr. Casey and Dr. MacGillivray have filed Affidavits Disclosing Documents as required by the Rules . HRM and Ms.

Bonang have not filed an Affidavit Disclosing Documents, despite that under the Rules the time for doing so has elapsed. [ 7 ] On May 4, 2007 HRM and Ms. Bonang filed a motion for

summary judgment under Rule 13, to dismiss Mr. Casey’s claim against HRM and Ms. Bonang. The Interlocutory Notice states as grounds for the motion that Mr.

Casey was employed by HRM “pursuant to the provisions of a collective agreement”, that “the alleged actions of the Appellant Bonang forming the basis of the claim occurred during the course of her employment and were within the scope of her authority” and that “the matters alleged in the Statement of Claim as against the Applicants are matters properly within ... the jurisdiction of the Grievance/Arbitration procedure of the Collective Agreement binding upon HRM and the Plaintiff Casey and as such are not within the jurisdiction of the Court”. [ 8 ] On March 25, 2011, at an Appearance Day hearing, Justice Rosinski scheduled September 28, 2011 for the hearing of HRM and Ms.

Bonang’s

summary judgment motion. Mr. Casey sought an order that, before the hearing of the

summary judgment motion, HRM and Ms. Bonang provide disclosure under Rules 14 and 15. Justice Rosinski scheduled the hearing of Mr. Casey’s disclosure motion for June 28, 2011. After that hearing, Justice Rosinski issued a decision on June 30, 2011 ( 2011 NSSC 267 ) requiring that, by July 20, 2011, HRM and Ms. Bonang each file Affidavits Disclosing Documents under Rules 14.08 and 15. That is the decision under appeal. [ 9 ] On July 5, 2011 HRM and Ms.

Bonang filed an application for leave to appeal to the Court of Appeal from the ruling that they provide Affidavits Disclosing Documents. [ 10 ] Also on July 5, 2011 HRM and Ms. Bonang filed a motion under Rule 90.41 seeking a stay of Justice Rosinski’s ruling that they provide Affidavit Disclosing Documents. I heard that motion on July 14, and these are my reasons.

Issue [11] Should I stay the judge’s ruling that HRM and Ms. Bonang file Affidavits Disclosing Documents? The Test for a Stay [12] Rules 90.41(1) and (2) say: 90.41

(1) The filing of a notice of appeal shall not operate as a stay of execution or enforcement of the judgment appealed from.

(2) A judge of the Court of Appeal on application of a party to an appeal may, pending disposition of the appeal, order stayed theexecution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms asmay be just. [13] The test under the new Rule 90.41(2) remains that stated under the former Rule 62.10(2) by Justice Hallett in Fulton InsuranceAgency v. Purdy (1990), (NS CA), 100 N.S.R. (2d) 341, paras 28-30.

The applicant for the stay must show either that(1) there is an arguable appeal, denial of a stay would cause irreparable harm and the balance of convenience favours a stay, or (2) thereare exceptional circumstances making it just that the stay be granted: La Ferme D’Acadie v. Atlantic Canada Opportunities Agency,2009 NSCA 5, para 11; Gill v. Hurst, 2010 NSCA 104, para 10. Arguable Appeal [14] I will start with the appeal’s arguability. [15] The issue on the appeal is not whether Mr. Casey’s claim should be dismissed by

summary judgment as a matter within theexclusive jurisdiction of an arbitrator under the collective agreement. That issue will be determined on HRM/Ms. Bonang’s

summaryjudgment motion, to be argued before Justice Rosinski on September 28, 2011. There is, as yet, no ruling from the Supreme Court ofNova Scotia on the merits of the

summary judgment motion. So it is not for me, in considering this request for a stay, to dwell on thearguability of the

summary judgment motion. [16] The issue on the appeal is whether HRM and Ms. Bonang, current applicants for

summary judgment, should provide to Mr.Casey Affidavits Disclosing Documents under the Rules before the hearing of their

summary judgment motion. I will address thearguability of that disclosure issue. [17] Justice Rosinski’s reasons summarized his view: [52] In order for a court to fairly assess, at

summary judgment motion on evidence, whether there is a genuine issue for trial, thePlaintiff must have the proposed disclosure to allow it to effectively advance its position. [Justice Rosinski’s emphasis] [18] HRM and Ms. Bonang rely on (then) Justice McLachlin’s ruling in Weber v. Ontario Hydro, (SCC), [1995] 2S.C.R. 929, that a labour arbitrator has exclusive jurisdiction over any dispute whose “essential character’ is governed by terms of thecollective agreement. HRM and Ms. Bonang say that the only evidence Mr. Casey may cite on their

summary judgment motion is thecollective agreement itself, which HRM has provided already, and that any other facts must be drawn from the pleadings. They citeCherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38 where Justice Cromwell said:

10. In my view, this case turns on the question of whether the respondent’s court action must be dismissed because the complaintsadvanced in it should have been pursued at arbitration rather than in court. To answer that question, one must determine the ‘essentialcharacter” of the dispute which underlies the court action and consider it in relation to the ambit of the collective agreement. There are,in this case, no factual questions requiring trial at either of these steps. The essential character of the dispute is determined by examiningthe respondent’s claims, not assessing what it can prove.

The ambit of the collective agreement is determined by construing theagreement. In short, the relevant legal considerations do not depend on disputed facts. 11. I conclude, therefore, that the question of the court’s jurisdiction over this action is a proper subject for consideration on a

summaryjudgment application. The jurisdictional issue does not, in this case, raise any arguable issue of material fact requiring trial. [19] In Cherubini, Justice Cromwell said that “[t]here are, in this case, no factual questions requiring trial at either of these steps”.The Court was considering whether, in that case, the Weber issue was appropriate for a

summary judgment. In the present case, thatsummary judgment issue will be for Justice Rosinski on September 28, and the issue on the current appeal is disclosure. Cherubini didnot discuss the parties’ disclosure obligations, and it is unclear from the decision what information had been disclosed between theparties before the

summary judgment litigation. [20] Dealing with disclosure, Mr. Casey says that HRM’s position ignores the onus that will face Mr. Casey in his preparation of aresponse to HRM/Ms. Bonang’s motion for

summary judgment on the evidence. [21] In his submissions to me, counsel for HRM and Ms. Bonang confirmed that HRM/Ms. Bonang seek

summary judgment underRule 13.04 - “Summary judgment on evidence”. Their motion is not for a “Summary judgment on pleadings” under Rule 13.03. To thecontrary, the Defence of HRM and Ms. Bonang does not mention the collective agreement upon which they rely for their

summaryjudgment motion, or challenge the court’s jurisdiction, and “puts the Plaintiff to the strict proof” of facts before the Supreme Court ofNova Scotia. [22] In Nova Scotia (Attorney General) v. Brill, 2010 NSCA 69, this court summarized the test for a

summary judgment on theevidence: [173] ... The applicant must show there is no genuine (or arguable) issue of material fact requiring trial. If the applicant does not showthis, the application is dismissed. If the applicant shows this, then, to defeat the application, the responding party must show, on theundisputed facts, that his claim or defence has a real chance of success: [citations omitted]. To satisfy this test, a bald assertion or denialin the pleadings may not suffice. Rather the parties are expected to put their evidential “best foot forward”: MacNeil v. Bethune,2006 NSCA 21, ¶ 32-33. Notwithstanding the above, the chambers judge retains discretion to deny

summary judgment on a principledbasis in the interests of justice: MacNeil v. Bethune, ¶ 34. [emphasis added] Many decisions of this Court, under the former Rules and the new Rule 13.04, support those principles. [23] Similarly, in Canada (Attorney General) v. Lameman, 2008 SCC 14 , [2008] 1 S.C.R. 372. The Court per curiam said: 11. For this reason, the bar on a motion for

summary judgment is high. The defendant who seeks

summary dismissal bears theevidentiary burden of showing that there is ‘no genuine issue of material fact requiring trial’: [citation omitted]. The defendant mustprove this; it cannot rely on mere allegations or the pleadings: [citations omitted]. If the defendant does prove this, the plaintiff musteither refute or counter the defendant’s evidence, or risk

summary dismissal: [citations omitted]. Each side must ‘put its best footforward’ with respect to the existence or non-existence of material issues to be tried: [citations omitted]. ... [emphasis added] [24] In what direction must HRM/Ms. Bonang and Mr. Casey each put a best foot forward to prepare for the

summary judgmentmotion?

[25] In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185 (the “Morin” case), Chief Justice McLachlin elaborated on the principles that she had stated in Webernine years earlier. She (para 23) approached the issue by “[t]aking the dispute in its factual context, as Weber instructs”. She cited thecollective agreement, but also (para 23) expressly cited facts outside the collective agreement to comprise the “factual matrix”.

She thenconcluded (para 24): Viewed in its factual matrix, this is not a dispute over which the arbitrator has exclusive jurisdiction. [26] The evidence that HRM proposes for the factual matrix may be simply the collective agreement. But Mr. Casey is entitled topropose, for Justice Rosinski’s consideration, Mr. Casey’s own version of the appropriate factual matrix. Which version is preferable isfor the judge to determine after the submissions on September 28, and I make no comment on that issue. [27] I agree with Mr. Casey that proper disclosure is necessary for his response to the

summary judgment motion. [28] This is so even if, as in Cherubini, the facts to characterize his claim are drawn only from the allegations in the pleadings. Anopening pleading, before disclosure from the other party, may contain just general allegations because it is drafted in a partial factualvacuum. This may occur especially in a matter where much of the relevant information is possessed by the defendants, and not by theplaintiff. In Mr. Casey’s claim, such information might include critical evidence related to any exchange of Mr. Casey’s medicalinformation between Dr. MacGillivray and HRM/Ms.

Bonang, and the use of that information by HRM or Ms. Bonang. The laterdisclosure enables the party to amend his pleading with particulars that add weight and colour to his initial more generic assertions. [29] On a motion for

summary judgment on the pleadings under Rule 13.03, the responding party is confined to his pleading: Rule13.03(3). But HRM and Ms. Bonang have not brought a motion on the pleadings. On a motion for “Summary judgment on evidence”under Rule 13.04, that Mr. Casey faces, “the question of a genuine issue for trial depends on the evidence presented”, and the respondingparty “must provide evidence in favour of the party’s claim”: Rules 13.04(3) and (4). The caselaw requires the responding party to “puthis best foot forward” with evidence.

Clearly the responding party, to clothe his response with maximum cogency, should have access tothe relevant evidence possessed by the moving party. [30] At the hearing of Mr. Casey’s disclosure motion before Justice Rosinski, Mr. Casey filed an affidavit. Counsel for HRM/Ms.Bonang asked to cross-examine Mr. Casey. That cross examination included questions about Mr. Casey’s alleged anxiety, damages andloss of employment. When asked the relevance of these questions, HRM/Ms.

Bonang’s counsel said “I’m just trying to get to what theessence of this complaint is,” ie. the Weber issue. [31] The point of the Rules’ disclosure requirements is that the opposing parties and the court should have the benefit of all relevantevidence from both parties before disposing of the issue. That principle underlies the governing presumption in Rules 14.08(1) and (5):

(1) Making full disclosure of relevant documents, electronic information, and other things is presumed to be necessary for justice in aproceeding.

(5) The presumption for disclosure applies, unless it is rebutted, on a motion under ... Rule 15.07 of Rule 15 - Disclosure of Documents... This presumption applies to disclosure before asummary judgment motion to dismiss a claim. [32] HRM/Ms. Bonang could have pleaded the relevant terms of the collective agreement then brought a motion for

summaryjudgment on the pleadings under Rule 13.03. Having chosen to move for

summary judgment on the evidence, HRM/Ms. Bonang’srefusal to disclose should not hobble the responding party from putting his best foot forward under the test for their motion. [33] I see no arguable merit to HRM/Ms. Bonang’s proposition that they may refuse to provide Affidavits Disclosing Documents.

Irreparable Harm [ 34 ] HRM/Ms. Bonang’s evidence for this stay motion is the affidavit of Donald Strachan. The affidavit says:

(1) Mr. Strachan is employed as District Chief in HRM’s Fire Department;

(2) The Halifax Regional Professional Fire Fighters Association, Local 268 is the bargaining agent for fire-fighters employed by HRM, and has negotiated collective agreements (copies of which are attached as exhibits) with HRM for the periods from June 1, 2000 to May 31, 2004 and June 1, 2004 to May 31, 2016;

(3) Mr. Casey was employed by HRM as a firefighter and was in the bargaining unit covered by the collective agreements. [ 35 ] HRM/Ms. Bonang’s evidence includes nothing to indicate what harm, reparable or irreparable, HRM or Ms. Bonang may suffer from the denial of its motion for a stay. [ 36 ] HRM’s counsel says that all the information which would be disclosed is “confidential” to HRM. The animating facts of Mr. Casey’s claim are the communication to HRM or Ms. Bonang of information respecting Mr. Casey’s medical condition and handling of that information by HRM or Ms. Bonang.

HRM’s submission is that even this information is “confidential” to HRM against Mr. Casey. According to HRM’s counsel, if HRM possesses it, then it must be “confidential” to HRM. HRM then cites Gillespie v. Paterson , 2006 NSCA 133 , para 8 , where Justice Cromwell said: [T]he forced disclosure of otherwise confidential information cannot be undone or compensated by money damages. [ 37 ] In Gillespie a judge of the Family Division, hearing a custody dispute, ordered the mother to produce medical, employment, counselling and police records about herself.

The mother appealed, and obtained a stay of the production order pending the result of the appeal. [ 38 ] In Gillespie the information was confidential to the stay applicant who resisted disclosure. Here the confidential medical information relates to Mr. Casey, who seeks disclosure. Mr. Casey’s claim is that Dr. MacGillivray breached Mr. Casey’s patient’s confidence by disclosing Mr. Casey’s medical information to HRM and Ms. Bonang. To this, HRM and Ms. Bonang’s submit that their own “confidentiality” precludes their disclosure of the information to Mr. Casey.

Their submission’s disingenuous circularity finds no support in Gillespie . HRM and Ms. Bonang have not satisfied me they would suffer irreparable harm, based on “confidentiality”, from disclosure of information to the beneficiary of the confidence. [ 39 ] If a particular document is subject to a legally recognized confidential privilege that may be asserted by HRM or Ms. Bonang, then Rule 14.05 provides that it need not be disclosed. HRM/Ms.

Bonang’s legally recognized privilege of confidentiality, if one exists, is not at risk. [ 40 ] Further, HRM’s theory in its Notice of Motion, based on Weber , is that the matter is “properly within ... the jurisdiction of the Grievance/Arbitration procedure of the Collective Agreement” (above para 7), and therefore outside the court’s jurisdiction. If Mr. Casey’s claim was arbitrated, then HRM and Ms. Bonang still would have to disclose their relevant information so the arbitration could proceed with “a full investigation” of the greivance: Trade Union Act, R.S.N.S. 1989, c. 475, ss. 43(1)(

b) and 16(7) . [ 41 ] An applicant for a stay must prove irreparable harm by evidence. General conclusory statements are insufficient: Myatt v. Myatt , 2004 NSCA 124 , para 10 , and cases there cited; Gill v. Hurst , 2010 NSCA 104 , para 12 . HRM and Ms. Bonang have provided not a molecule of sworn evidence to suggest how they may suffer irreparable harm. [ 42 ] I find there would be no irreparable harm from the denial of a stay. Balance of Convenience [ 43 ] As there is no evidence of irreparable harm to HRM and Ms. Bonang from a stay, there is nothing to balance.

Fulton’s Secondary Test [ 44 ] Fulton ’s secondary test requires exceptional circumstances that necessitate a stay in the interests of justice . As noted earlier, Rule 14.08(1) says that “full disclosure of relevant documents ... is presumed to be necessary for justice in a proceeding”. The Rules presume that a blind stab at the facts does not serve justice. HRM/Ms. Bonang have cited no exceptional circumstance to rebut this presumption. Conclusion [ 45 ] I dismiss the application for a stay, and will order HRM to pay costs of $500 to Mr. Casey, in any event of the cause. Fichaud, J.A.