Crocker v. Dalhousie University, 2013 NSSC 373

SUPREME COURT OF NOVA SCOTIA Citation: Crocker v. Dalhousie University, 2013 NSSC 373 Date: 20131203 Docket: Hfx. No. 236415Registry: Halifax Between: Dr. John F.S. Crocker and Dr. Phillip D. Acott Plaintiffs -and- Dalhousie University, Izaak Walton Killam Health Centre , and The Attorney General of Nova Scotia , representing Her Majesty the Queen in right of the Province of Nova Scotia Defendants Decision Judge: The Honourable Cindy A. Bourgeois Heard: October 17, 2013 at Halifax, Nova Scotia Written Decision: December 3, 2013 Counsel: Counsel for the Plaintiffs - Ann E.

Smith, Q.C. and David Hutt Counsel for the Defendant, Dalhousie University - S. Bruce Outhouse, Q.C. Counsel for the Defendant, The Attorney General of Nova Scotia, Agnes MacNeil Counsel for the Defendant, Izaak Walton Killam Health Centre, Rory Rogers, Q.C. Bourgeois, J. INTRODUCTION

[ 1 ] The Plaintiffs, Drs. Crocker and Acott, are pediatric nephrologists who have brought action against three Defendants, Dalhousie University ( “Dalhousie”), Izaak Walton Killam Health Centre (“IWK”), and the Attorney General of Nova Scotia (“AGNS”). The Plaintiffs claim economic damages against all three defendants. The matter is scheduled for a lengthy trial commencing in January of 2014. [ 2 ] The AGNS has brought a motion for

summary judgment, both on the pleadings and evidence, seeking dismissal of the Plaintiffs’ claims. The Plaintiffs have responded, but have additionally brought a motion seeking to strike the affidavit of Angela Purcell filed in support of the AGNS’

summary judgment motion in its entirety, or in the alternative, various specific paragraphs. The Defendants Dalhousie and IWK did not actively participate in the motions before the Court. [ 3 ] The Court heard the motion to strike, followed by the motion for

summary judgment. I will follow the same order in terms of this decision. Before addressing the motions, some additional context may be helpful. BACKGROUND [ 4 ] The Plaintiffs commenced action against the three named Defendants by way of Originating Notice (Action) and Statement of Claim filed December 2, 2004, which has been subject to amendment.

The “final” claim is contained in the “Further Amended” Originating Notice and Statement of Claim, filed June 24, 2008. [ 5 ] The Plaintiffs Crocker and Acott claim that they commenced providing medical services at the IWK as pediatric nephrologists, in 1971 and 1996 respectively. They claim that in April of 1996, Dr. Peter Camfield offered certain terms of employment to Dr. Acott, which included that a third nephrologist would be hired. Paragraphs 18 and 24 of the Further Amended Originating Notice and Statement of Claim found the Plaintiffs’ claim against the Defendants, including the AGNS.

Those paragraphs provide: 18. Approximately one year later, on or about April 27, 1996, Dr. Peter Camfield (“Dr. Camfield”), who at all material times was a Professor in the Faculty of Medicine at Dalhousie and Chair of the Department of Pediatrics at the IWK, sent a letter to Dr. Acott, offering him a position as a Professor in the Faculty of Medicine, Department of Pediatrics at Dalhousie (with a cross appointment to the Division of Endocrinology) and a position as a full member of the active medical staff of the IWK. At all times material, Dr.

Camfield was acting as the agent of both Dalhousie, the IWK and the Province and made the offer to Dr. Acott with the knowledge, support and consent of Dalhousie’s, the IWK’s and the Province’s senior managers. 24. In the course of Dr. Acott’s negotiations with Dalhousie and with the IWK as set out above, Dr. Camfield represented to Dr. Crocker that from or about the month of May, 1996, onward, Dr. Crocker would only be responsible to provide a maximum of 331/3% of the total clinical responsibilities of the Pediatric Nephrology Division.

Dalhousie and the IWK have failed to recruit and maintain a third Pediatric Nephrologist. The result has been that Dr. Crocker, since, or about the month of May, 1996, has been required to be responsible for at least 50% of the clinical and on call services of the Pediatric Nephrology Division instead of the agreed-upon 33 1/3%. Dr.

Crocker is therefore entitled to but has never received from either Dalhousie or the IWK extra vacation, additional income and additional career/infrastructure support. [ 6 ] The Plaintiffs claim a breach of the Acott contract, and in the alternative seek damages based upon the doctrines of unjust enrichment and quantum meruit , submitting that all three Defendants have benefitted from receiving services which are the equivalent of that expected of 3 or 4 nephrologists, at the cost of two. [ 7 ] In the Amended Defence filed September 16, 2008, the AGNS responds in particular to the allegation that Dr.

Camfield was acting as an agent of the Department of Health as follows: 10. In respect to paragraph 18 of the Plaintiffs’ amended Statement of Claim dated June 24, 2008, the Defendant Attorney General NS denies that Dr. Peter Camfield was acting as an Agent of the Province at the time Dr. Acott was offered a position as a full member of the active medical staff at the IWK and further denies that the offer was made with the knowledge, support and consent of the Province’s Senior Managers. THE MOTION TO STRIKE [ 8 ] The AGNS, in support of its motion for

summary judgment on evidence, filed on September 25, 2013 an affidavit of Angela Purcell, sworn July 5, 2013. As noted above, the Plaintiffs brought a motion to strike that affidavit in its entirety, or in the alternative, to strike numerous provisions contained therein. In response to the concerns raised by the Plaintiffs, the AGNS sought leave to file a second revised affidavit from Ms. Purcell, sworn October 2, 2013. Given the Plaintiffs did not challenge the leave sought, it was granted. The arguments regarding admissibility therefore, pertained to the second affidavit, not that originally the subject matter of the

motion. However, the concerns advanced by the Plaintiffs regarding the second affidavit were not materially different than thosecontained in their written submissions directed towards the initial affidavit filed. [9] Ms. Purcell is currently the Director of Physician Services for the Department of Health, a position she has held since July of2008. Prior to undertaking her current role, Ms. Purcell served as the Department’s Manager of Alternative funding since March of2005. According to her CV, prior to March of 2005 Ms.

Purcell worked in health-care related positions, including as a manager with theCapital District Health Authority and a consultant with Deloitte and Touche Management Services. Earlier in her working career, Ms.Purcell held “various nursing positions across Nova Scotia”. [10] Ms. Purcell’s affidavit consists of 159 paragraphs, with 26 exhibits. The general purpose of the affidavit is obviously to supportthe motion brought by the AGNS for

summary judgment. The more specific purpose of the affidavit is to refute the existence of anybinding agreement between the Plaintiffs and the Department of Health, in particular as it relates to the involvement of Dr. Camfield inApril of 1996. Paragraph 13 of Ms. Purcell’s affidavit is illustrative of the above: 13.

I am not aware of any agreement between the Plaintiffs and Health referencing additional monies to be paid to the Plaintiffs outsideof the scope of their Alternative Funding agreement with Health or under the Fee for Service model, for the clinical work or researchwhich they have provided or performed at the IWK and Dalhousie over the years, or for any other amounts including infrastructure costs. [11] The affidavit describes Ms. Purcell’s review of the file materials of the Department of Health, including those pre-dating heremployment with the Department.

She asserts that her review failed to disclose any evidence which would serve to indicate theDepartment was involved in any fashion with the alleged 1996 negotiations between Drs. Crocker and Acott. Ms. Purcell’s affidavitfurther addresses her knowledge of the funding arrangements for physicians, including the interrelationships among DalhousieUniversity, the IWK and the Department, as well as the role of Doctors Nova Scotia as the bargaining agent for physicians in theprovince. [12] In a nutshell, the entire thrust of Ms.

Purcell’s affidavit is to provide evidence to the Court that firstly, there is nothing in theDepartment’s file materials to support the Plaintiffs’ allegation that Dr. Camfield was acting on behalf of the Department, and secondly,that based on her knowledge of how the Department does provide funding for physician services, the scenario proposed by the Plaintiffsis not plausible. Position of the Applicants Crocker and Acott [13] The Plaintiffs submit that the affidavit of Ms. Purcell is so deficient, it should be struck in its entirety or in the alternative,numerous provisions must be removed.

In support of their position, the Plaintiffs submit that the affidavit does not comply with Rule39.02 in that it contains inadmissible hearsay. Ms. Purcell discusses events and attaches documents which pre-date her employment withthe Department of Health and with which she has no personal knowledge. The Plaintiffs assert she has not, in many instances, identifiedthe source of statements made, nor affirmed her belief in the information. Relying on MacAuley v. Ali, 2013 NSSC 271, the Plaintiffssubmit such hearsay cannot be utilized in the context of a

summary judgment motion. [14] The Plaintiffs have further concerns. Relying on the well-entrenched principles outlined in Waverley (Village Commissioners) v.Nova Scotia (Minister of Municipal Affairs), (1993) 1993 NSSC 71 , 123 N.S.R. (2d) 46, it is submitted that the affidavitcontains inadmissible opinion evidence and argument. [15] In his oral submissions, Counsel for the Plaintiffs identified in excess of 60 paragraphs within the Purcell affidavit which offendedone or more of the above principles.

Further, concern was raised with respect to the affiant attaching and commenting upon the materialcontained in billing records from Medavie Services Inc (“MSI”). Position of the Respondent AGNS [16] The AGNS submits that Ms. Purcell’s affidavit is appropriate, contains admissible evidence and the motion to strike should bedismissed. It is submitted that Ms. Purcell does in fact, have personal knowledge of the evidence contained in her affidavit, even that inwhich she had no personal involvement due to her many years of experience in the health-care field.

As such, it is not hearsay, when shespeaks of documents or practices in existence at the Department of Health during a timeframe which pre-dates her employment.

[ 17 ] With respect to the Plaintiffs’ criticism that specific sources of information made known to her were not identified, it is submitted that such is entirely appropriate when, like in the present instance, it is impossible to parse out how an affiant has come to be aware of information over an extended period of time and when it obviously is derived from a multitude of sources. [ 18 ] The AGNS further submits that Ms. Purcell’s affidavit does not contain inappropriate argument or submission, but rather her review and

interpretation of material relevant to the Plaintiffs’ claim of an agency relationship and resulting representations. It is submitted that any opinion expressed is lay opinion, which is perfectly acceptable, and appropriate in the circumstances before the court. Similarly, it is submitted that the MSI records are admissible as business records, and that Ms. Purcell is perfectly capable of interpreting same for the Court, as this is part of her present role with the Department. Discussion [ 19 ] There are several Civil Procedure Rules which are relevant to the motion to strike, primarily Rule 39.

Rule 39.02 provides: 39.02(1) A party may only file an affidavit that contains evidence admissible under the rules of evidence, these Rules, or legislation.

(2) An affidavit that includes hearsay permitted under Rule 5.13 of rule 5 – Application, Rule 22.15 of Rule 22 – General Provisions for Motions, another Rule, a rule of evidence, or legislation must identify the source of the information and swear to, or affirm, the witness’ belief in the truth of the information. [ 20 ] The power to strike all or part of an affidavit is found in Rule 39.04, which provides: 39.04(1) A judge may strike an affidavit containing information that is not admissible evidence, or evidence that is not appropriate to the affidavit.

(2) A judge must strike a part of an affidavit containing either of the following: (

a) information that is not admissible, such as an irrelevant statement or a submission or plea; (

b) information that may be admissible but for which the grounds of admission have not been provided in the affidavit, such as hearsay admissible on a motion but not supported by the evidence of the source and belief in the truth of the information.

(3) If the parts of the affidavit to be struck cannot readily be separated from the rest, or if striking the parts leaves the rest difficult to understand, the judge may strike the whole affidavit.

(4) A judge who orders that the whole of an affidavit be struck may direct the prothonotary to remove the affidavit from the court file and maintain it, for the record, in a sealed envelope kept separate from the file.

(5) A judge who strikes parts, or the whole, of an affidavit must consider ordering the party who filed the affidavit to indemnify another party for the expense of the motion to strike and any adjournment caused by it. [ 21 ] As noted above, the Plaintiffs submit that the use of hearsay is not appropriate in a

summary judgment motion, as it does not fall into those circumstances contemplated in Rule 39.02(2) as noted above. In this regard, they rely upon the recent decision of MacAuley v. Ali , 2013 NSSC 271 , made in the context of considering affidavits filed in relation to a

summary judgment motion. There, Justice Wood writes as follows: [7] The deponents of both affidavits had no personal knowledge of the materials attached as exhibits. Their affidavits might be sufficient to prove that the documents were produced in the litigation; however, that is not sufficient to allow them to be admitted for the truth of their contents. Civil Procedure Rule 22.15(1) states that the rules of evidence shall apply to the hearing of a motion including any affidavits. Subsection (2) permits hearsay on certain motions, none of which are applicable in the present case. [8] The principle that only admissible evidence should be considered on a motion for

summary judgment was reiterated by the Nova Scotia Court of Appeal in the recent decision of Abbott and Haliburton Company v. WBLI Chartered Accountants , 2013 NSCA 66 , where the Court stated at para. 159: A judge hearing a motion for

summary judgment should only hear admissible evidence. Here, the motions judge committed no error in striking the affidavit of Mr. O’Hearn. However, the motions judge did not articulate and apply the correct legal principles in determining if Ms. MacMillan’s affidavit was admissible.

[ 22 ] I agree with Wood, J.’s analysis. [ 23 ] Before leaving the appropriate content of affidavits, it would appear that it remains useful, even after the passage of 20 years, to harken back to Justice Davison’s direction in Waverley, supra . He writes as follows: 20. It would [be] helpful to segregate principles which are apparent from consideration of the foregoing authorities and I would enumerate these principles as follows: 1. Affidavits should be confined to facts. There is no place in affidavits for speculation or inadmissible material.

An affidavit should not take on the flavor of a plea or a summation. 2. The facts should be, for the most part, based on the personal knowledge of the affiant with the exception being an affidavit used in an application. Affidavits should stipulate at the outset that the affiant has personal knowledge of the matters deposed to except where stated to be based upon information and belief. 3. Affidavits used in applications may refer to facts based on information and belief but the source of the information should be referred to in the affidavit. It is insufficient to say simply that “I am advised”. 4.

The information as to the source must be sufficient to permit the court to conclude that the information comes from a sound source and preferable the original source. 5. The affidavit must state that the affiant believes the information received from the source. Determination [ 24 ] A detailed, paragraph by paragraph analysis of the Purcell affidavit is not, in my view, necessary in order to dispose of the main issue, the

summary judgment motion, on its merits. Simply, even if the Purcell affidavit is considered in its entirety, the AGNS has failed to meet the burden for this Court to grant

summary judgment. The judicial ink required to undertake an analysis in response to the various concerns and particular paragraphs identified, will not change the ultimate outcome, and therefore will not be expended on this occasion. [ 25 ] The above being said, the Court does wish to acknowledge that it shares many of the concerns expressed by the Plaintiffs on the motion to strike, particularly as it relates to Ms. Purcell’s lack of personal knowledge of critical events in 1996.

Applying what she may now know in terms of the functioning of the Department of Health and financial practices regarding the remuneration of physicians, to historic file materials or alleged communications both written and oral, does not give rise to personal knowledge. Further, significant portions of the affidavit are, in my view, more akin to argument and submission as to how the Court should interpret various documents, than evidence. THE MOTION FOR

SUMMARY [ 26 ] As noted above, the AGNS has brought a two-pronged motion for

summary judgment, both on the pleadings and evidence. Given the considerations for each are distinct, a review of the respective rules and authorities considering same may be helpful.

Summary Judgment on the Pleadings [ 27 ] Civil Procedure Rule 13.03 governs a motion for

summary judgment on the pleadings. It provides: 13.03(1) A judge must set aside a statement of claim, or a statement of defence, that is deficient in any of the following ways: (

a) it discloses no cause of action or basis for a defence or contest; (

b) it makes a claim based on a cause of action in the exclusive jurisdiction of another court; (

c) it otherwise makes a claim, or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own. (2) the judge must grant

summary judgment of one of the following kinds, when a pleading is set aside in the following circumstances: (

a) judgment for the plaintiff, when the statement of defence is set aside wholly; (

b) dismissal of the proceeding, when the statement of claim is set aside wholly; (

c) allowance of a claim, when all parts of the statement of defence pertaining to the claim are set aside;

(

d) dismissal of a claim, when all parts of the statement of claim that pertain to the claim are set aside.

(3) A motion for

summary judgment on the pleadings must be determined only on the pleadings, and no affidavit may be filed in supportof or opposition to the motion.

(4) A judge who hears a motion for

summary judgment on pleadings may adjourn the motion until after the judge hears a motion for anamendment to the pleadings.

(5) A judge who hears a motion for

summary judgment on pleadings, and who is satisfied on both of the following, may determine aquestion of law: (

a) the allegations of material fact in the pleadings sought to be set aside provide, if assumed to be true, the entire facts necessary for thedetermination; (

b) the outcome of the motion depends entirely on the answer to the question. [28] In Body Shop Canada Limited v. Dawn Carson Enterprises Ltd. 2010 NSSC 25, this Court had the opportunity to consider theappropriate approach to a motion under current Rule 13.03, noting as follows: [10] A motion pursuant to Rule 13.03, on the pleadings, is analogous to the "application to strike" under Rule 14.25 of the former1972 Civil Procedure Rules. Both Applicants have put forward the well established test for an application to strike in their writtensubmissions, the applicability of which was not challenged by Carson.

They assert, and I agree, that the implementation of the currentCivil Procedure Rules on January 1, 2009, has not eroded the applicability of earlier case authorities. This approach has been recentlyendorsed by this Court in Murphy v. Murphy 2009 NSSC 138, where Warner, J. writes at para. 26 as follows: The test in new CPR 13.03 (old CPR 14.25) -

summary judgment on pleadings, is that the pleading discloses no cause of action [13.03(1)(a)], or the claim is clearly unsustainable when the pleading is read on its own [13.03(1)(c)]. In Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, the Supreme Court wrote that the question was: assuming the facts stated in the pleadings can beproved, is it plain and obvious that the statement of claim disclosed no reasonable cause of action?

Only if the action is certain to failbecause it contains a radical defect should it be struck. [11] The Court of Appeal has recently re-affirmed the rule for the striking of pleadings, which I find is still applicable to motionsunder new Rule 13.03. Writing for the Court in Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009NSCA 44, MacDonald, C.J.N.S. writes at para. 17 as follows: [17] Rule 14.25 offers a drastic remedy. It provides for an action to be dismissed summarily, thus denying litigants their "day in court".

Understandably, therefore, any defendant seeking such relief bears a heavy burden. The Chambers judge would have to consider thisclaim at its highest, by assuming all allegations to be true without the need to call any evidence. Then even with this assumption, it muststill remain "plain and obvious" that the pleadings disclose no reasonable cause of action. [12] The Court further, reaffirms the standard as articulated by the Supreme Court of Canada in Hunt v.

Carey Canada Inc., [1990]2 S.C.R. 259, writing at para. 18 as follows: [18] In following Hunt, our court has recently confirmed that in order to strike pleadings under Rule 14.25 (1) (a), they must appear tobe either "certain to fail" ( 2007 NSCA 70 at para.13) or "absolutely unsustainable" (CGU Insurance Co. of Canada v. Noble, 2003NSCA 102 at para. 13). [29] See also Matthews v. Ocean 2012 NSSC 142.

Summary Judgment on Evidence [30]

Summary judgment on evidence is governed by Civil Procedure Rule 13.04. It provides: 13.04(1) A judge who is satisfied that evidence, or the lack of evidence, shows that a statement of claim or defence fails to raise agenuine issue for trial must grant

summary judgment.

(2) The judge may grant judgment for the plaintiff, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence.

(3) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the laws and facts in issue, and the question ofa genuine issue for trial depends on the evidence presented.

(4) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by thecontesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge.

(5) A judge hearing a motion for

summary judgment on evidence may determine a question of law, if the only genuine issue for trial is aquestion of law.

(6) The motion may be made after pleadings close. [ 31 ] Since the introduction of the new Civil Procedure Rules in January of 2009, one would be hard pressed to find a rule of procedure which has garnered more judicial commentary than Rule 13.04. Although it is widely recognized that applying the above rule involves a two stage analysis, there has been some continuing variation in how this task is undertaken. The Court of Appeal has recently in Coady v. Burton Canada Co. 2013 NSCA 95 , re-iterated and confirmed the approach to be taken by a Chambers judge in considering a motion for

summary judgment on evidence. Writing for the majority, Saunders J.A. provides the following direction: [87] Before turning to the final issue raised on appeal, I wish to provide a quick

summary of the law as it presently stands in Nova Scotia concerning

summary judgment litigation. From the jurisprudence to which I have referred as well as the case law cited therein, a series of well-established legal principles have emerged. I will list these principles in the hope that their enumeration will serve as a helpful checklist or template to guide counsel and judges in their application. In Nova Scotia: 1.

Summary judgment engages a two-stage analysis. 2. The first stage is only concerned with the facts. The judge decides whether the moving party has satisfied its evidentiary burden of proving that there are no material facts in dispute. If there are, the moving party fails, and the motion for

summary judgment is dismissed. 3. If the moving party satisfies the first stage of the inquiry, then the responding party has the evidentiary burden of proving that its claim (or defence) has a real chance of success. This second stage of the inquiry engages a somewhat limited assessment of the merits of the each party’s respective positions. 4. The judge’s assessment is based on all of the evidence whatever the source. There is no proprietary interest or ownership in “evidence”. 5. If the responding party satisfies its burden by proving that its claim (or defence) has a real chance of success, the motion for

summary judgment is dismissed. If, however, the responding party fails to meet its evidentiary burden and cannot manage to prove that its claim (or defence) has a real chance of success, the judge must grant

summary judgment. 6. Proof at either stage one or stage two of the inquiry requires evidence. The parties cannot rely on mere allegations or the pleadings. Each side must “put its best foot forward” by offering evidence with respect to the existence or non-existence of material facts in dispute, or whether the claim (or defence) has a real chance of success. 7. If the responding party reasonably requires disclosure, production or discovery, or the opportunity to present expert or other evidence in order to “put his best foot forward”, then the motions judge should adjourn the motion for

summary judgment, either without day, or to a fixed day, or with conditions or a

schedule of events to be completed, as the judge considers appropriate, to achieve that end. 8. In the context of motions for

summary judgment the words “genuine”, “material”, and “real chance of success” take on their plain, ordinary meanings. A “material” fact is a fact that is essential to the claim or defence. A “genuine issue” is an issue that arises from or is relevant to the allegations associated with the cause of action, or the defences pleaded. A “real chance of success” is a prospect that is reasonable in the sense that it is an arguable and realistic position that finds support in the record, and not something that is based on hunch, hope or speculation. 9.

In Nova Scotia, CPR 13.04, as presently worded, does not create or retain any kind of residual inherent jurisdiction which might enable a judge to refuse to grant

summary judgment on the basis that the motion is premature or that some other juridical reason ought to defeat its being granted. The Justices of the Nova Scotia Supreme Court have seen fit to relinquish such an inherent jurisdiction by adopting the Rule as written. If those Justices were to conclude that they ought to re-acquire such a broad discretion, their Rule should be rewritten to provide for it explicitly. 10.

Summary judgment applications are not the appropriate forum to resolve disputed questions of fact, or mixed law and fact, or the appropriate inferences to be drawn from disputed facts. 11. Neither is a

summary judgment application the appropriate forum to weigh the evidence or evaluate credibility. 12. Where, however, there are no material facts in dispute, and the only question to be decided is a matter of law, then neither complexity, novelty, nor disagreement surrounding the

interpretation and application of the law will exclude a case from

summary judgment. Position of the Applicant, AGNS [ 32 ] The Court heard lengthy oral submissions from both parties, and had the benefit of receiving thorough written submissions as well. I do not intend to review the arguments in the same level of detail as provided to the Court, but what follows is a

summary of the parties’ most salient points. [ 33 ] As noted above, the AGNS has brought the motion for

summary judgment both on the pleadings and evidence. In her written submissions, the AGNS outlines the 5 issues to be determined by the Court on the motion as follows:

1. Can Dr. Crocker make any claims against the AGNS based on Dr. Acott’s contract? 2. Can Dr. Acott sue the AGNS based on the terms of his engagement as a physician and professor by the IWK and Dalhousie? 3. Is there a sustainable claim for an accounting on the face of the pleading, and, if so, did the Province or Department of Health pay the monies due under the agreements to which it was a party and under which the Plaintiffs were paid for the delivery of insured physician services? 4.

Was the Province enriched by the physician services delivered by the Plaintiffs and, if it was, is there a juridical reason for the delivery by the Plaintiffs of insured physician services which defeats their claims of unjust enrichment and quantum meruit ? 5.

Can the Plaintiffs even make a claim of unjust enrichment or quantum meruit in these circumstances for the delivery of services against the AGNS under the Proceedings Against the Crown Act ? [ 34 ] With respect to the pleadings, the written submissions of Counsel for the AGNS explain her position as follows: The motion on the pleadings alone relates to whether the Plaintiffs have a sustainable claim for an accounting on the face of the pleading, and also to the Proceedings Against the Crown issue. [ 35 ] It is submitted that the claim for an accounting against the AGNS, found in the “remedy” provision of the claim, is unconnected to any of the other pleadings, and cannot therefore stand on its own.

Further, the AGNS provides several arguments why, based on the evidence before the Court, an accounting by the Department of Health would be inappropriate. [ 36 ] At the hearing of the motion, Counsel for the AGNS agreed to forego for the purposes of the

summary judgment motions, her arguments with respect to the ability to advance a claim against the Department of Health by virtue of the Proceedings Against the Crown Act. [ 37 ] The bulk of the AGNS’s argument relates to the evidence, or lack of evidence, before the Court to render the Department of Health as a party to either the Acott contract, or any type of collateral contract with Dr. Crocker. As to the allegation of agency, it is submitted that “the Province has received no documents which reference such a representation. There is no evidence the Province was a party to such a representation”.

Further, it was submitted that based upon the evidence before the Court, the Plaintiffs would be unable to establish the necessary components of their claims of unjust enrichment and quantum meruit against the AGNS. Position of the Respondents Crocker and Acott [ 38 ] The Plaintiffs Crocker and Acott assert that there is clearly, a material fact in dispute, and as such the motion for

summary judgment must fail. The Court must, at trial, make a determination whether Dr. Camfield in his negotiations with both Drs. Acott and Crocker in 1996, was acting as an agent for the Department of Health, and if such representations created a contractual obligation upon the AGNS. [ 39 ] Further, it is submitted that the claims of unjust enrichment and quantum meruit cannot be disposed of by this Court in a

summary fashion as requested by the AGNS. Both involve a consideration of not only facts which must be determined by a Court upon full hearing, but also questions of law. Questions of mixed fact and law, are not the proper subject matter of

summary judgment motions, but rather, must be left in the domain of a trial judge. Determination

a) Is the Applicant AGNS entitled to

summary judgment on the pleadings? [ 40 ] On a motion for

summary judgment on the pleadings, the Court is confined solely to a consideration of the pleadings themselves. I am to accept the facts as plead, as if proven. [ 41 ] Based on a review of the “Further Amended” Originating Notice and Statement of Claim, I am unable to conclude that the claim generally against the AGNS, nor the claim specifically for an accounting, is “certain to fail”. On the face of the pleadings there is an

allegation that the Department of Health made certain financial representations through and by its agent, Dr. Camfield, and those representations were not subsequently met. It is alleged this gave rise to financial benefit to all three Defendants. [ 42 ] On its face, a claim for an accounting appears rationally connected to the pleadings. Perhaps evidence may establish a different outcome than that alleged and sought by the Plaintiffs, but at this stage, the pleadings themselves are not “clearly unsustainable”.

a) Is the Applicant AGNS entitled to

summary judgment on the evidence? [ 43 ] As noted above, the first step in considering the AGNS’s motion for

summary judgment on evidence is for this Court to decide whether as applicant, it has satisfied its evidentiary burden of proving there are no material facts in dispute. This is an applicant’s sole burden, and at this stage, a respondent is not compelled to present evidence pointing to a material fact in dispute, although often it will. [ 44 ] The Purcell affidavit is intended to respond to the allegation in the pleadings that Dr. Camfield made representations in 1996 to both Plaintiffs which gave rise to contractual obligations on the part of the Department of Health. Ms.

Purcell’s affidavit, even if accepted as admissible in this regard, says only that no documents exist to reflect such representations were ever made, and further that the Court should draw an inference from her evidence that such was not consistent with how funding arrangements were made. [ 45 ] What is not before the Court is any evidence from Dr. Camfield to address directly, the context in which his purported conversations with the Plaintiffs took place or his role, if any, on behalf of the Department of Health. There is, in my view, a very critical material fact in dispute, namely whether Dr.

Camfield made representations to the Plaintiffs as an agent for the Department of Health in 1996. In my view, Ms. Purcell’s affidavit does not put the AGNS’s “best foot forward” on this pivotal issue.

If anything, it highlights the importance of the Court hearing further evidence to determine whether or not the allegation of agency will be borne out given the circumstances of this case. [ 46 ] Having reached the above conclusion, the Court of Appeal has made clear that my analysis ends at this point, without further engaging in an analysis of the relative strengths or weaknesses of the arguments advanced, nor embarking upon a fact-finding exercise. Having found a material fact in dispute, those endeavours are left for trial. CONCLUSION [ 47 ] The motion for

summary judgment brought by the AGNS is dismissed. If the parties are unable to agree with respect to the issue of costs, written submissions are to be provided no later than December 13, 2013. J.