Vaughne Realty, 2012 NSSC 261

SUPREME COURT OF NOVA SCOTIA Citation: Vaughne Realty

(2005) Limited v. LeBlanc, 2012 NSSC 261 Date: 20120711 Docket: Ken No. 324236 Registry: Kentville Between: Vaughne Realty

(2005) Limited - Limitee, a body corporate, Vaughne Rentals Limited, a body corporate, Raymond M. Nelson as Trustee of The Ray Nelson Family Trust, and Raymond M. Nelson in his personal capacity Plaintiffs v. Richard L. LeBlanc, Barbara LeBlanc, R. LeBlanc Holdings Limited, a body corporate, and Richard L. LeBlanc and R. LeBlanc Holdings Limited, operating under the firm name and style of Victory Realty Defendants Judge: The Honourable Justice Glen G. McDougall Heard: May 8, 2012, in Halifax, Nova Scotia Counsel: Colin D. Bryson, Q.C. for the plaintiffs Randall P.H.

Balcome, for the defendants By the Court : [ 1 ] The defendants in this proceeding move for an order pursuant to Civil Procedure Rule 15.07 that: 1) Raymond Nelson disclose in a supplementary Affidavit of Documents the existence of the disclosure to him by the Nova Scotia Public Prosecution Service in the criminal proceeds [sic, proceedings] being brought against him, including but not limited to all investigation notes, continuation reports and witness statements (the “Crown File”), and describe in general terms the nature of its contents;

2) Raymond Nelson notify the Nova Scotia Public Prosecution Service and the relevant police service of the Defendants’ request forproduction of the Crown File and request their consent to the production of the Crown File; 3) Raymond Nelson produce the Crown File to the extent that consent is given by the Nova Scotia Public Prosecution Service andthe relevant police service; and 4) The Defendants have leave to make a further motion for production of the remainder of the Crown File, on notice to the NovaScotia Public Prosecution Service and the relevant police service. [2] Rule 15.07(2) states that: 15.07 Directions for disclosure

(2) A judge may not give directions limiting disclosure or production of a relevant document, unless the presumption in Rule 14.08, ofRule 14 - Disclosure and Discovery in General, is rebutted. [3] The presumption contained in Rule 14.08(1) is: 14.08 Presumption for full disclosure

(1) Making full disclosure of relevant documents, electronic information, and other things is presumed to be necessary for justice ina proceeding. [4] In order to rebut the presumption a party (3) ....who proposes that a judge modify an obligation to make disclosure must rebut the presumption for disclosure by establishingthat the modification is necessary to make cost, burden, and delay proportionate to both of the following: (

a) the likely probative value of evidence that may be found or acquired if the obligation is not limited; (

b) the importance of the issues in the proceeding to the parties. [5] The information being sought pertains to the 96 criminal charges now pending against the plaintiff, Raymond M. Nelson. These charges all arise out of his alleged activities as a real estate broker and mortgage broker during a period of time when he and thedefendant, Richard L. LeBlanc, were in business together. [6] Defendant’s counsel has laid out a procedure which would begin with an identification of the materials handed over to theplaintiff in fulfilment of the Crown’s disclosure obligations.

It mirrors the screening process set out by the Ontario Divisional Court andeventually adopted by the Ontario Court of Appeal in the case of P.(D.) v. Wagg, (ON CA), [2004] O.J. No. 2053(C.A.). Rosenberg, J.A., at para. 17, wrote: 17 The Divisional Court then explained how the screening mechanism would operate. Since I agree entirely with this part of thecourt's reasons, I intend to summarize this part of the reasons at some length:

* the party in possession or control of the Crown brief must disclose its existence in the party's affidavit of documents and describe in general terms the nature of its contents; * the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced; * the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether "there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information" (para. 51). [ 7 ] In contrast to the criminal charges faced by Mr.

Nelson, the criminal charges against the defendant in the Wagg case had already been stayed (due to certain charter violations) before this issue came before the Court of Appeal in the civil law suit brought against Dr. Wagg by his former patient. The Court must not do anything that could prejudice Mr. Nelson ’ s right to defend himself. On the other hand the defendant, Mr.

LeBlanc, and the other named defendants are entitled to full disclosure off all “ relevant documents, electronic information, and other things.... necessary for justice in a proceeding. ” [CP Rule 14.08(1)] [ 8 ] The plaintiff, as part of his argument opposing the defendants ’ motion, suggests that since the contents of the Nova Scotia Real Estate Commission ’ s file, compiled during the investigation and subsequent discipline hearing into his alleged fraudulent activities as a real estate agent and broker, has been provided then that should satisfy any disclosure obligations he might have.

Given the nature of the cause of action being advanced by the plaintiff and the defence and counterclaim pleaded by the defendants, it is certain that at least some of the additional information contained in the Crown disclosure would be relevant to the various legal and equitable claims and counterclaims being advanced. [ 9 ] The draft order prepared by the defendants ’ counsel reflects the approach suggested by the Ontario Divisional Court and endorsed by that Province ’ s Court of Appeal.

It begins with a Supplementary Affidavit of Documents describing in general terms the nature of the materials disclosed to the plaintiff by the Crown/Public Prosecution Service. [ 10 ] It requires the plaintiff to notify the Nova Scotia Public Prosecution Service and the relevant police service(

s) of the defendants ’ request in an effort to elicit their consent. To the extent that consent is given then production will follow accordingly. [ 11 ] If consent is not obtained, either in whole or in part, then, upon notice, the defendants can bring a further motion to obtain what they seek by way of disclosure.

The Court might have to review the withheld information and other documentation to determine any issues of “ privilege or public interest immunity ” and generally whether “ there is a prevailing social value and public interest in non- disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information. ” [para. 17 of Wagg , supra , as reproduced from para. 51 of the Ontario Divisional Court ’ s original decision] [ 12 ] This procedure should ensure full disclosure of all relevant information in this case without prejudicing the plaintiff ’ s (Mr.

Nelson) right to make full answer and defence to the criminal charges. If there is any chance that his defence could be prejudiced, full disclosure might have to be delayed which could result in a delay of the civil proceedings brought by him and others against the defendants. Until then, the plaintiffs (specifically Mr.

Nelson) are ordered to start the process of making full disclosure by filing a Supplementary Affidavit of Documents describing in general terms the nature of the materials provided as part of the Crown ’ s disclosure and to ask for the Nova Scotia Public Prosecution Services consent along with the consent of the police agencies involved to the release of these materials to the defendants. [ 13 ] I am prepared to grant an order provided the first paragraph of the draft order is amended to change “ proceeds ” to “ proceedings ” in the third line thereof.

Likewise, a similar change needs to be made to line three of the first operative paragraph of the draft order.

[ 14 ] Additionally, any reference to “ the relevant police service ” in paragraphs two, three and four of the operative part of the draft order should be changed to read “ any police agency(ies) involved in the investigation that resulted in the laying of charges against Raymond M. Nelson. ” [ 15 ] As with all of the motions heard and now decided, I invite counsel to offer further written submissions on costs within 30 days of the date of release of this and the other decisions unless, of course, the parties are able to reach their own agreement. McDougall, J.