Carleton Road Industries Association v. Sanford, 2015 NSCA 95

Nova Scotia Court of Appeal Citation: Carleton Road Industries Association v. Sanford , 2015 NSCA 95 Date: 20151015 Docket: CA 433472 Registry: Halifax Between: Carleton Road Industries Association Appellant v. Rhonda Sanford Respondent Judges: Beveridge, Bourgeois and Van den Eynden, JJ.A. Appeal Heard: May 15, 2015, in Halifax, Nova Scotia Held: Appeal dismissed with costs, per reasons for judgment of Van den Eynden, J.A.; Beveridge and Bourgeois, JJ.A. concurring Counsel: Mark Tector, for the appellant G.

Bernard Conway and Gregory Sampson, for the respondent Reasons for judgment: Overview [ 1 ] This is an appeal related to two interlocutory motions heard by Justice Gerald R.P. Moir of the Supreme Court of Nova Scotia. [ 2 ] Ms. Sanford (the respondent) brought an action against Carleton Road (the appellant) for wrongful dismissal. In the court below, Ms. Sanford brought a motion asking the motions judge to determine the validity of objections to discovery questions and to compel a witness to answer questions previously put to her on discovery. Carleton Road subsequently moved for

summary judgment on the pleadings and in essence to strike portions of Ms. Sanford’s claim. [ 3 ] Both motions were scheduled to be heard on the same day. As it turns out, by agreement, the appellant’s motion to strike was addressed first. It was agreed that following the judge’s decision on the motion to strike, he would call upon counsel for further submissions on the motion to compel. He never did so.

The motions judge decided both motions in a written decision released after hearing the motion to strike, but before providing counsel with the agreed upon opportunity to make further submissions on the remaining motion to compel. [ 4 ] Ms. Sanford was successful on her motion to compel. Carleton Road was only partially successful on its motion to strike. On appeal, Carleton Road seeks to reverse these unfavourable aspects of the motions judge’s decision. [ 5 ] As this is an interlocutory appeal, leave is required. For the reasons that follow, I would grant leave and dismiss the appeal. Background

summary [ 6 ] The evidence before the judge respecting both motions was not controversial.

[ 7 ] The motion to strike was based on the pleadings. So no evidence was advanced; only submissions. In support of the motion to compel, Ms. Sanford’s counsel at the time of the discovery filed a noncontroversial affidavit. The exhibits appended to it included various email communications respecting the attendance of a relevant witness (a former board member and officer of Carleton Road) together with the transcript of the line of inquiry that was put to the witness and objected to by counsel for Carleton Road. [ 8 ] The background is taken from the pleadings and the brief affidavit.

That is what was before the motions judge and relied upon by him in his decision. I will refer to some background in detail as it is necessary to place in context the grounds of appeal respecting the motion to strike and motion to compel. [ 9 ] Ms. Sanford is a former employee of Carleton Road. She was hired by Carleton Road in March 2005. Although it appears the decision to terminate her employment for non-cause was made by the board of directors of Carleton Road in early March 2008, that decision was not communicated to her until September 26, 2008. [ 10 ] Ms.

Sanford went off work on stress-related leave on April 7, 2008. She was scheduled to return in late September 2008. However, just before returning she was informed that her employment would be terminated. [ 11 ] While on stress leave, around June 20, 2008, Carleton Road sent Ms. Sanford a record of employment together with a severance cheque in lieu of notice. Ms. Sanford contacted her employer to determine whether she had been dismissed. Carleton Road’s communication was retracted. Ms. Sanford was advised that a mistake had been made. [ 12 ] By letter dated September 26, 2008, Carleton Road advised Ms.

Sanford it was providing her with three months’ notice that her employment contract would terminate for non-cause. The effective date of the notice period was from September 22 to December 22, 2008. During this notice period, Ms. Sanford was paid and not required to report to work. [ 13 ] Ms. Sanford commenced a wrongful dismissal claim in April 2011. In it she alleged Carleton Road negligently and intentionally inflicted harm upon her.

In her statement of claim she refers to various events which underpin her claim and date back several months prior to September 26, 2008 (the date she received her termination letter). She seeks greater damages than what she received during her three month paid notice period. [ 14 ] Carleton Road defended. Carleton Road took the position that the historic events complained of were not part of the events surrounding the manner of Ms. Sanford’s termination.

This view obviously influenced the position Carleton Road advanced on the motions. [ 15 ] The pleadings went through various amendments, none of which are relevant to the issues under appeal. I note that at the time the objections were made to the line of inquiry at discovery, no claims had been struck. All were alive. [ 16 ] Ms. Sanford’s counsel began the discovery examination of the former board member and corporate officer, Catherine Savage, on December 18, 2012. Early in the examination, counsel for Carleton Road, G. Grant Machum, objected to the line of inquiry. Ms.

Savage’s examination was aborted twenty-eight minutes after it got underway. It appears from the record most of that time was eaten up by counsel making and responding to objections to the lines of inquiry. Under my analysis, I will review the objections in more detail. [ 17 ] Ms. Sanford filed her Notice of Motion seeking to determine the validity of objections and further directions on the conduct of discoveries on November 22, 2013.

Carleton Road filed its Notice of Motion on January 10, 2014 seeking to strike paragraph 19 of the statement of claim being the so-called “Wallace” claim for alleged breach of the employer’s contractual obligation of good faith and fair dealing in the course of dismissal. It also sought to strike the claim for negligent infliction of mental/emotional suffering. The Notice did not seek to strike the claim for intentional infliction; however, an expanded request to strike was articulated by Carleton Road in its prehearing brief and submissions to the motions judge.

Although not in its Notice, this argument was clearly before the motions judge. [ 18 ] The motions judge released his written decision on May 27, 2014 ( 2014 NSSC 187 ). He struck the claim for negligent infliction of harm, preserved the Wallace type claim and granted the motion to compel. The decision was effectively silent on the motion to strike the claim for intentional infliction of harm. A dispute arose between counsel respecting the court’s disposition of Carleton Road’s motion to strike.

Carleton Road took the position the judge struck the so-called Wallace damage claim and the claim for intentional infliction of mental suffering in addition to striking the claim for negligent infliction of mental distress. Ms. Sanford took the position only the claim for negligent infliction of emotional distress was struck with the balance of the claims surviving. [ 19 ] Counsel advised the motions judge of their unresolved dispute respecting the scope of the decision and form of the order.

Counsel presented the judge with competing draft orders and asked he resolve the form of order intended to flow from his decision. He did so. He approved the order as submitted by Ms. Sanford. At the time of resolving the form of order the motions judge was not functus . Under letter dated October 27, 2014, the motions judge provided a brief explanation for choosing the form of order submitted by Ms. Sanford. He stated: My intention was to dismiss all aspects of the defendant’s motions except the motion regarding negligent infliction of emotional suffering. Therefore, I will grant an order in the form marked 1.

Issues [ 20 ] There are five issues raised on appeal. They are: 1. Should leave to appeal be granted? 2. Did the motions judge err by failing to rule or provide reasons respecting the motion for

summary judgment on the claim of intentional infliction of emotional harm?

3. Did the motions judge err by disregarding or misapplying the law concerning Wallace damages and in failing to strike thatclaim? 4. Did the motions judge breach the rules of natural justice by making a decision and issuing an order on the motion to compelwithout first inviting further submissions? 5. Did the motions judge err by holding that the lines of questioning at discovery were supported by the claims for Wallacedamages and intentional infliction of mental suffering? Leave to appeal [21] I will deal first with the leave issue.

This is an appeal from an interlocutory order which requires leave of the Court of Appeal. The test for leave is whether there is an arguable issue; being an issue which could result in the appeal being allowed (see Sydney SteelCorporation v. MacQueen, 2013 NSCA 5). I am satisfied the threshold standard has been met, and I would grant leave. Standard of review [22] The standard of review for a question of law is correctness (Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R.235).

Whether there are sufficient reasons in relation to a material issue and whether there has been a failure to decide a material issueare questions of law (Sable Mary Seismic Inc. v. Geophysical Services, 2012 NSCA 33; and Benc v. Parker, 2012 ABCA 249). Issues 2and 3 involve questions of law. I will apply the correctness standard of review to these issues. The fourth issue pertains to proceduralfairness and a denial of natural justice. It is for this Court to determine whether there was a breach or not. This is a question of lawwhich does not engage a standard of review (Waterman v. Waterman, 2014 NSCA 110).

The last issue involves the exercise of themotions judge’s discretion. The standard of review I will apply to this issue is whether the judge applied wrong principles of law orwhether a patent injustice resulted (Innocente v. Canada (Attorney General), 2012 NSCA 36). Analysis Did the motions judge err by failing to rule or provide reasons respecting the motion for

summary judgment on the claim ofintentional infliction of emotional harm? [23] Respecting a failure to rule, a judge commits a reviewable err by failing to address a material issue (see Benc, supra). It is fairto say that within the confines of his written decision, the motions judge did not meaningfully address nor specifically rule on thismaterial issue (being the motion to strike the claim for intentional infliction of harm). That said, after releasing his written decision andbefore issuing the order that flowed, the motions judge did specifically rule on this aspect of the motion to strike.

He clarified his rulingin a letter to counsel before becoming functus. [24] I would dismiss the ground alleging the motions judged erred in not ruling. Providing sufficient reasons is another matter. [25] The issue of whether there was a failure to provide sufficient reasons is a question of law. The relevant principles respectingthe duty to give reasons can be summarized as follows: 1. To justify and explain the result. The parties need to understand why the decision was made; 2. To permit meaningful appellate review. Having an intelligible basis for the outcome permits this; 3.

To provide public accountability for the decision; in other words, to satisfy the public that justice has been done; 4. To help ensure fair and accurate decision making and provide guidance to future courts in accordance with the principle ofstare decisis; 5. The amount of detail needed to satisfy these requirements can vary with the circumstances or context. Less detail might berequired if the basis for the judge’s decision is apparent from the record; 6.

An appellate court does not intervene simply because it thinks a judge did a poor job of expressing his or herself; there mustbe a functional failing of the reasons; and 7. An appellate court will determine whether the shortcomings of a judge’s reasoning, taken with the trial record, preclude ameaningful review. If it does, the appellate court has the power to intervene.

Authority for the forgoing legal principles is found in R. v Sheppard, 2002 SCC 26 , [2002] 1 SCR 869 and Sable Mary SeismicInc., supra). [26] In his written decision, the only reference to the claim for intentional infliction of harm is found at paragraph 30 where themotions judge stated: [30] The interrupted lines of inquiry at discovery are supported by both the Wallace damages and the intentional infliction of mentalsuffering claims. I will direct that witnesses answer the inquiries at discovery and the association refrain from interruption. I will orderthat Ms.

Savage return for the resumption of her discovery at a time convenient for her and counsel. [Emphasis added] [27] It might be argued one can infer the motions judge intended to dismiss this aspect of Carleton Road’s motion to strike from this

passing reference in paragraph 30 of his decision. However, that is not tantamount to providing sufficient and intelligible reasons. Although the motions judge made his ruling clear in his letter to counsel and subsequent issuing of the operative order, he erred in law by not providing sufficient reasons for dismissing this aspect of the motion to strike. [ 28 ] Although the motions judge failed to provide sufficient reasons, the error does not justify appellate intervention in the circumstances of this case.

For reasons which follow, I would dismiss this ground of appeal. [ 29 ] There is sufficient evidence and submissions (both before the motions judge and on appeal) to permit this court to decide this aspect of Carleton Road’s motion to strike. There is no prejudice to Carleton Road in this Court deciding this issue. Sending it back for further determination does not serve the interests of justice, including the objective of a ensuring the just, speedy and inexpensive determination of every proceeding ( Civil Procedure Rule 1.01).

Based on the record, this Court can and should determine this aspect of the motion to strike. [ 30 ] I now turn to the merits of the motion to strike the claim for intentional infliction of harm. In short, Carleton Road argues (as it did before the motions judge) that the elements of this tort are to be narrowly construed. The elements require extreme, flagrant or outrageous conduct which is calculated to and does produce harm (see High Parklane Consulting Inc. v Royal Group Technologies Ltd. , [2007] O.J. No. 107 ). Carleton Road asserts Ms.

Sanford’s pleadings are deficient and do not make out the required elements; therefore the claim should be struck. [ 31 ] The arguments advanced on behalf of Ms. Sanford were similar on appeal as they were before the motions judge. In articulating Ms. Sanford’s position to the motions judge her counsel expressed it this way: MR. CONWAY: … Bearing in mind the purpose of pleadings here, My Lord, and I would submit is that the parties to the court matter know each other’s claim and defense. That’s the basis of why we’re here.

Obviously, the claims have to be sustainable at law or have at least the factual basis that if true would permit it’s sustainable at law -- and I’m saying, or submitting on behalf of my client that the factual nexus underneath the test for the tort of intentional infliction are peppered throughout that Statement of Claim. Could they be better drafted (inaudible) the fact?

Obviously, if there was a heading that said, without pulling up the test directly for it -- each element in citing that -- obviously that would make it a clearer, more concise Statement of Claim but again, the remedy in that situation then, My Lord, is not to strike that as a ground for the claim. It’s to say, okay, Mr. Conway, go back and amend the claim. […] If something needs to be done the curative response is to say "tidy up and tighten up the pleadings" and then away we go. And that's what I would submit would be the same -- would be true for the intentional infliction.

There are the basis -- if I look at my friend's brief. I believe he set out the test -- "extreme, flagrant, outrageous conduct" -- I would say you could find that throughout the Paragraph 19, for example, shows that kind of conduct. It's in 23. It's in 12. It's in 13. Could that be, again, tidied up? Certainly. Which is calculated to produce harm -- again, if it's a question of inserting certain words that (inaudible) to calculate to include harm, included but we're not limited to and then examples -- that can certainly be done to fix it up.

And actually produces harm -- that's part of the pleadings already because we discussed the affect to Ms. Sanford. (Appeal Book, pp. 175-178) [ 32 ] The general principles of pleadings are set out in Civil Procedure Rule 38.02. Rule 38.02(2) provides: The pleading must be concise, but it must provide information sufficient to accomplish both of the following: (

a) the other party will know the case the party has to meet when preparing for, and participating in, the trial or hearing; (

b) the other party will not be surprised when the party signing the pleading seeks to prove a material fact. [ 33 ] Like the pleadings respecting the Wallace claim (which I will address next), the elements of the claim for intentional harm could have been more clearly articulated and better organized. As acknowledged by counsel for Ms. Sanford, the elements of the claim are “peppered” throughout the statement of claim. That recognized, it cannot be said the claim fails to disclose a cause of action or is clearly unsustainable ( Civil Procedure Rule 13.03 (1)).

Although the claim is not drafted with precision, the statement of claim meets the objectives of Rule 38.02(2). [ 34 ] Although the motions judge failed to give any specific reasons for dismissing this aspect of the motion to strike, his ultimate decision was correct. I would dismiss this ground of appeal.

Did the motions judge err by disregarding or misapplying the law concerning Wallace damages and in failing to strike that claim? [ 35 ] In dismissing the motion to strike this claim, the motions judge had this to say: [14] Wallace established the entitlement of a dismissed employee to damages against an employer who breached its contractual “obligation of good faith and fair dealing in the manner of dismissal” (para. 95). Justice Iacobucci held, for the majority, that these damages were to be calculated by extending the notice period. Chief Justice McLachlin (then Justice) dissented on this point.

She was of the view that damages for “breach of the contractual obligation of good faith in dismissing an employee” (para. 113) should be awarded in an amount that compensates for the harm caused by that breach, independent from the award for reasonable notice. [15] Ms. Sanford concedes that para. 19 could have been more artfully worded. Indeed, it pleads evidence, cites cases, and provides

argument. I take it simply to mean that the plaintiff claims Wallace damages, characterized as increased notice, because of the manner of her treatment “between February 15, 2008 and the point of termination” including the details in paragraphs 19(

a) through (g). [16] Honda came to Chief Justice McLachlin’s position on independent compensation for breach of the contractual obligation of good faith owed by an employer in the manner it dismisses an employee. Honda did not make Wallace damages “a remedy … deemed unavailable”. The remedy remains, the statement of claim gives adequate notice that the remedy is sought, and it erroneously argues that the damages are to be tied to the notice period. [17] The error does not render the claim clearly unsustainable. [ 36 ] The core of Ms.

Sanford’s argument on this ground of appeal is really a repetition of the submissions before the motions judge. It is the employer’s unfair or bad faith conduct during the course of dismissal that can give rise to a claim for damages ( Honda Canada Inc. v. Keays , 2008 SCC 39 ). The parties drift apart in their respective positions of what is the time frame of the course of dismissal . Carleton Road asserts this term invokes a tight time frame. Ms.

Sanford asserts the circumstances surrounding her dismissal (including the grievances she filed and the decision to terminate being made, retracted and then finally communicated to her) fit into an expanded timeline that is relevant to her claim notwithstanding the events occurred over several months. Carleton Road asserts she cannot reach back that far; accordingly, her claim is unsustainable. [ 37 ] I concur with the conclusions drawn by the motions judge. The pleadings on their face articulate (again not perfectly or with precision) the elements to sustain a claim for Wallace type damages.

It will be for the trial judge to determine whether the conduct complained of occurred in the course of dismissal and is compensable at law. I see no error in the motions judge’s decision on this aspect of the appellant’s motion to strike. I would dismiss this ground of appeal.

Did the motions judge breach the rules of natural justice by making a decision and issuing an order on the motion to compel without first inviting further submissions, as was agreed? and Did the motions judge err by holding that the lines of questioning at discovery were supported by the claims for Wallace damages and intentional infliction of mental suffering? [ 38 ] I will deal with the last two issues together as they are closely related. [ 39 ] Without explanation the motions judge failed to provide the agreed opportunity for further submissions. This was a clear error of law.

While I do not excuse the motions judge’s failure to provide the opportunity for further submissions, his failure to follow through does not prejudice the appellant in these circumstances. [ 40 ] The record includes written briefs submitted to the motions judge from each side on the motion to compel.

Furthermore, any prejudice or denial of natural justice the appellant might have encountered as a result of not being afforded the opportunity for final submissions before the motions judge was rectified by the appellant being able to make further submissions on appeal. [ 41 ] The two objectionable lines of inquiry were: “During your time as a director on the board and as chair of the board, vice- chair of the board, treasurer, what did you understand the role of the Board to be?” and “ You’re aware of a grievance that was filed in February, 2008?” In his decision, the motions judge addressed the motion to compel first.

He had this to say: [9] The questions demanded relevant information and they will continue to conform with relevancy, unless claims are set aside. The defendant’s denials and desire for undemanded particulars was no basis for obstructing these lines of questioning. The waste of time and effort will be sanctioned in costs no matter whether the questions remain relevant after determination of the other motions. [ 42 ] He then dealt with the motion to strike the claim for Wallace type damages and negligent infliction of mental suffering. He only struck the claim in negligence.

As discussed earlier, he also maintained the intentional harm claim. For ease of reference I repeat paragraph 30 of the motion judge’s decision where he concludes the following respecting the motion to compel: [30] The interrupted lines of inquiry at discovery are supported by both the Wallace damages and the intentional infliction of mental suffering claims. I will direct that witnesses answer the inquiries at discovery and the association refrain from interruption. I will order that Ms.

Savage return for the resumption of her discovery at a time convenient for her and counsel. [ 43 ] Civil Procedure Rule 18.13 requires a witness on discovery to “answer every question that asks for relevant information or information that is likely to lead to relevant evidence.” Relevancy is the test (see Brown v.

Cape Breton (Regional Municipality) , 2011 NSCA 32 ). [ 44 ] In its factum at paragraph 68 Carleton Road states: “…The test is “relevance” and not simply whether the lines of question are “supported” by the pleadings.” The appellant takes issue with the motion judge’s use of the word “supported” when, in paragraph 30 of his decision, he stated: “The interrupted lines of inquiry at discovery are supported by both the Wallace damages and the intentional infliction of mental suffering claims.” Carleton Road argues the motions judge failed to consider the relevancy of the lines of questions particularly in light of his decision on the motion to strike.

I reject this argument. [ 45 ] Although the motions judge did not specifically refer to the applicable Civil Procedure Rule or case law, it can be fairly

inferred from his decision that he properly considered and turned his mind to the appropriate “relevancy” test. He said at paragraph 9 that the “questions demanded relevant information” and then reaffirms in paragraph 30 by stating, “The interrupted lines of inquiry at discovery are supported by both the Wallace damages and the intentional infliction of mental suffering claims.” Furthermore, the motions judge had the benefit of the written briefs submitted by counsel which reference the appropriate “relevancy” test together with supporting authorities.

Focusing solely on the words “are supported” is not the complete context. I am satisfied the motions judge considered and applied the proper test. [emphasis mine] [ 46 ] Having the benefit of the record, the motion judge’s decision and the appeal submissions from counsel (which they were not afforded the opportunity to present to the motions judge), I conclude that the motions judge was correct in stating “the questions demanded relevant information” . The objections to the lines of inquiry by counsel for Carleton Road were baseless. Although counsel for Ms.

Sanford could have more fully and clearly outlined why the lines of inquiry were relevant, the objections remained baseless. [ 47 ] Based on the pleadings, the two questions objected to were clearly relevant to the claims advanced and outstanding at the time of discovery. As noted earlier, at the time of discovery no pleadings had been struck. All were alive. The questions were of the nature one would expect counsel to put to the witness in light of the pleadings. The objections seemed intended to obstruct and did unfairly obstruct the discovery.

The objections were not in keeping with the objectives of a just, speedy and inexpensive determination of every proceeding. The motions judge had valid reasons for stating, “The waste of time and effort will be sanctioned in costs.” [ 48 ] Carleton Road is a non-profit association providing adult programing for those facing intellectual and physical challenges. Ms. Sanford when employed with Carleton Road was earning in the range of $33,000 plus benefits. Neither party likely has unlimited resources to waste on unnecessary steps in the litigation process.

The circumstances of this case bring to the forefront the wise words of Chipman, J.A. in Global Petroleum Corp v. CBI Industries Inc. , 1998 NSCA 220 . Although this decision was dealing with the former Civil Procedures Rules , the following sentiment expressed is worth noting: [11] The Civil Procedure Rules providing for discovery have existed in their present form for over a quarter of a century. During that time, the practice of the Bar in their use has developed, and court rulings have provided clarification and refinement.

Ordinarily, experienced counsel should have no difficulty in making the rules work and in conducting discoveries without unnecessary waste of time and expense. Only rarely should resort to the courts be had. When this happens, the Chambers judge is required to step in and provide a working solution to problems that have proven too difficult for counsel to resolve on their own. Only rarely should it be necessary to appeal to this Court from such rulings.

Even more rarely should it be expected that this Court will intervene in the discretionary resolution by the Chambers judge of such issues. [ 49 ] Respecting his substantive decision to compel Ms. Savage to answer the questions posed and for Carleton Road not to interrupt, I see no error in principles of law nor did a patent injustice result. The questions remain relevant to the surviving claims. I would dismiss these last two grounds of appeal. Conclusion [ 50 ] I would grant leave to appeal and dismiss the appeal. I do not have the benefit of knowing what the cost consequences were in the court below.

I would award costs to Ms. Sanford in the amount of $2,500.00 inclusive of disbursements. Van den Eynden, J.A. Concurred in: Beveridge, J.A. Bourgeois, J.A.