Thompson v. Enterprise Cape Breton Corporation, 2020 NSSC 357

SUPREME COURT OF Nova Scotia Citation: Thompson v. Enterprise Cape Breton Corporation , 2020 NSSC 357 Date: 20201123 Docket: Syd , No. 339138 Registry: Sydney Between: Leslie Thompson Plaintiff / Respondent v. Enterprise Cape Breton Corporation, a body corporate, duly incorporated pursuant to laws of Canada Successor to the Cape Breton Development Corporation, a body corporate Defendant / Applicant Motion Decision

Summary Judgment on Evidence Judge: The Honourable Justice Robin Gogan Heard: October 26, 2020, in Sydney, Nova Scotia Written Decision: November 23, 2020 Counsel: Darlene MacRury, for the Plaintiff / Respondent Liam G.P. Gillis, for the Defendant / Applicant By the Court: Introduction [ 1 ] This is a decision on a motion for

Summary Judgement on Evidence. [ 2 ] The applicant is the defendant, Enterprise Cape Breton Corporation (“ ECBC ”). The proceeding involves claims brought by Leslie Thompson (“ Thompson ”). Thompson was an independent coal hauler in Glace Bay who made his living delivering coal to a group of DEVCO customers. He alleges losses flowing from DEVCO’s decision to prohibit him from entering its premises. DEVCO’s decision effectively terminated Thompson’s business. [ 3 ] The facts giving rise to the claims in this proceeding occurred in 2008. Thompson brought his action on November 9, 2010. In March of 2011, ECBC moved for

Summary Judgement on Pleadings. Murray, J. granted the motion in part, striking Thompson’s claim against ECBC for loss of reputation (see Thompson v. ECBC , 2011 NSSC 280 ). ECBC defended the remaining claims on May 6, 2016. [ 4 ] The current motion was heard on October 26, 2020. Thompson moved to dismiss the motion on the basis that it was res judicata . The preliminary motion was dismissed. Both parties offered evidence on the application and provided written submissions. [ 5 ] For reasons that follow, I grant the motion and dismiss Thompson’s remaining claims against ECBC.

Background [ 6 ] Much of the context to this motion is uncontested. [ 7 ] Briefly put, ECBC is a successor to the Cape Breton Development Corporation (“ DEVCO ”). DEVCO was formed in 1967 by

an act of Parliament and assumed control over the mining operations of the former Dominion Steel and Coal Company (“ Dominion ”). Dominion allowed eligible individuals to purchase coal at reduced rates. During the Dominion period of operation, coal deliveries to these customers was organized by “coal committees” organized by various districts. [ 8 ] The policy of providing subsidized coal continued under DEVCO, even after it ceased mining operations in 2001. But the program organization changed. Coal committees ceased operation.

Each customer was required to hire and pay their hauler directly. [ 9 ] Thompson had long standing involvement in the coal hauling business. In 2000, he began full time operation as an independent coal hauler. In the beginning, he was trucker number 14, hired by the district 9 coal committee to do its deliveries. After

the changes in 2001, he continued to haul coal for individual customers. This meant that he picked up coal orders from the DEVCO coal yard and delivered the loads to customers. Thompson became the largest coal hauler with 156 customers and 2 employee “helpers”. [ 10 ] On January 20, 2005, DEVCO revised its policy for the sale of subsidized coal. Enforcement of the policy was the responsibility of DEVCO security. In the years 2007 and 2008, DEVCO security personnel conducted an investigation and concluded that Thompson was skimming coal from his deliveries.

As a result, Thompson was advised in the summer of 2008 that he would no longer be permitted to access the DEVCO coal yards. [ 11 ] On September 25, 2008, Thompson was served with a notice under the Protection of Property Act . Thompson complied with the notice and has not been to the coal yards since. His inability to access the coal yards brought an end to his coal hauling business and terminated his source of income. Thompson now frames his claim as intentional interference with contractual or economic relations.

He seeks damages for lost income. [ 12 ] Thompson denies that he ever skimmed coal or committed fraud. He said none of his customers ever complained of receiving short loads. He says DEVCO’s actions forced his customers to hire other coal haulers. Issue [ 13 ] The question on the motion is whether it is appropriate to grant an order for

summary judgment. Position of the Parties Enterprise Cape Breton Corporation [ 14 ] ECBC says that this is an appropriate case to grant

summary judgment. It relies on the analysis of the Nova Scotia Court of Appeal in Coady v. Burton Canada Co. , 2013 NSCA 95 . It submits that there is no issue of material fact requiring trial in the present case and that Thompson’s claim has no chance of success. [ 15 ] ECBC further relies upon the decisions of the Supreme Court of Canada in A.I. Enterprises v. Bram Enterprises Ltd. , 2014 SCC 12 and the Ontario Court of Appeal in Grand Financial Management Inc. v. Solemnio Transportation Inc. , 2016 ONCA 175 .

Relying on these cases, ECBC says that the legal issue is whether it had the right to restrict Thompson’s access to its premises. [ 16 ] Thompson was not an employee, or agent, or under contract with DEVCO at the time he operated his coal hauling business. He had no independent right of access to the DEVCO coal yards. Rather, he was accessing the coal yards with DEVCO permission, at the request of DEVCO customers, under a policy created by DEVCO to control access to subsidized coal.

As part of its program monitoring, DEVCO formed the belief that Thompson was skimming coal from his deliveries and terminated his access. This did not terminate the right of his customers to access coal under the policy. Thompson [ 17 ] Thompson says that the motion must be dismissed. He says that there are disputes in this case that must be resolved by trial. Key to the disputes between the parties is that DEVCO did not have any legitimate reason to prohibit his entry to the coal yards. Thompson says that DEVCO’s “illegal” actions caused him economic loss.

He frames his claim in tort and relies upon the decision in Tardiff v. McGrath , 2002 NSCA 56 . He argues that there is “clearly a disputed fact” in this case about whether DEVCO was justified in prohibiting his entry to the coal yards. Analysis The Rule [ 18 ] This motion is brought under Civil Procedure Rule 13 which provides: 13.04(1) A judge who is satisfied on both of the following must grant

summary judgment on a claim or a defence in an action: (

a) there is no genuine issue of material fact, whether on its own or mixed with a question of law, for trial of the claim or defence; (

b) the claim or defence does not require determination of a question of law, whether on its own or mixed with a question of fact, or the claim or defence requires determination only of a question of law and the judge exercises the discretion provided in this Rule 13.04 to determine the question.

(2) When the absence of a genuine issue of material fact for trial and the absence of a question of law requiring determination are established,

summary judgment must be granted without distinction between a claim and a defence and without further inquiry into chances of success.

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

(4) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the issues, and the subjects of a genuine issue of material fact and a question of law depend on the evidence presented.

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

(6) A judge who hears a motion for

summary judgment on evidence has discretion to do either of the following: (

a) determine a question of law, if there is no genuine issue of material fact for trial;

(

b) adjourn the hearing of the motion for any just purpose including to permit necessary disclosure, production, discovery, presentationof expert evidence, or collection of other evidence. The Law – The Analytical Approach [19] Motions for

summary judgement have been the subject of frequent consideration. Oft cited is the decision in Coady. Morerecently, in Shannex Inc. v. Dora Construction Ltd., 2016 NSCA 89 at para. 34, Fichaud, J.A. updated the analysis by posing a series ofquestions as a guide to any motion of this kind: • First Question: Does the challenged pleading disclose a “genuine issue of material fact”, either pure or mixed with aquestion of law? [Rules 13.04(1), (2) and (4)] If Yes, it should not be determined by

summary judgment. It should either be considered for conversion to an applicationunder Rules 13.08(1)(

b) and 6 as discussed below [paras. 37-42], or go to trial. The analysis of this question follows Burton’s first step. A “material fact” is one that would affect the result. A dispute about an incidental fact - i.e. one that would not affect the outcome - willnot derail a

summary judgment motion: 2420188 Nova Scotia Ltd. v. Hiltz, 2011 NSCA 74, para. 27, adopted by Burton, para. 41, andsee also para. 87 (#8). The moving party has the onus to show by evidence there is no genuine issue of material fact. But the judge’s assessment is based on allthe evidence from any source. If the pleadings dispute the material facts, and the evidence on the motion fails to negate the existence of agenuine issue of material fact, then the onus bites and the judge answers the first question Yes. [Rules 13.04(4) and (5)] Burton, paras. 85-86, said that, if the responding party reasonably requires time to marshal his evidence, the judge should adjourn themotion for

summary judgment.

Summary judgment isn’t an ambush. Neither is the adjournment permission to procrastinate. Theamended Rule 13.04(6)(

b) allows the judge to balance these factors. • Second Question: If the answer to #1 is No, then: Does the challenged pleading require the determination of a question oflaw, either pure, or mixed with a question of fact? If the answers to #1 and #2 are both No,

summary judgment “must” issue: Rules 13.04(1) and (2). This would be a nuisance claim withno genuine issue of any kind – whether material fact, law, or mixed fact and law. • Third Question: If the answers to #1 and #2 are No and Yes respectively, leaving only an issue of law, then the judge“may” grant or deny

summary judgment: Rule 13.04(3). Governing that discretion is the principle in Burton’s second test: “Does thechallenged pleading have a real chance of success?” Nothing in the amended Rule 13.04 changes Burton’s test. It is difficult to envisage any other principled standard for a

summaryjudgment. To dismiss summarily, without a full merits analysis, a claim or defence that has a real chance of success at a later trial orapplication hearing, would be a patently unjust exercise of discretion. It is for the responding party to show a real chance of success. If the answer is No, then

summary judgment issues to dismiss the ill-fatedpleading. • Fourth Question: If the answer to #3 is Yes, leaving only an issue of law with a real chance of success, then,under Rule 13.04(6)(a): Should the judge exercise the “discretion” to finally determine the issue of law? If the judge does not exercise this discretion, then: (1) the judge dismisses the motion for

summary judgment, and (2) the matter with a“real chance of success” goes onward either to a converted application under Rules 13.08(1)(

b) and 6, as discussed below [paras. 37-42],or to trial. If the judge exercises the discretion, he or she determines the full merits of the legal issue once and for all. Then the judge’sconclusion generates issue estoppel, subject to any appeal. This is not the case to catalogue the principles that will govern the judge’s discretion under Rule 13.04(6)(a). Those principles willdevelop over time. Proportionality criteria, such as those discussed in Hryniak v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87, willplay a role. A party who wishes the judge to exercise discretion under Rule 13.04(6)(

a) should state that request, with notice to the other party. Thejudge who, on his or her own motion, intends to exercise the discretion under Rule 13.04(6)(

a) should notify the parties that the point isunder consideration. Then, after the hearing, the judge’s decision should state whether and why the discretion was exercised. The reasonsfor this process are obvious: (1) fairness requires that both parties know the ground rules and whether the ruling will generate issueestoppel; (2) the judge’s standard differs between

summary mode (“real chance of success”) and full-merits mode; (3) the judge’s choicemay affect the standard of review on appeal. [20] After reviewing the foregoing approach, the reasons in Shannex underscore the importance of the parties putting their bestfoot forward on these motions: 36. … Under the amended Rule, as with the former Rule, the judge’s assessment of issues of fact or mixed fact and law depends on

evidence, not just pleaded allegations or speculation from the counsel table. Each party is expected to “put his best foot forward” with evidence and legal submissions on all these questions, including the “genuine issue of material fact”, issues of law, and “real chance of success”: Rules 13.04(4) and (5); Burton , para. 87. [ 21 ] Similarly, in Nova Scotia Association of Health Organizations Long-Term Disability Plan Trust Fund v. Amirault , 2017 NSCA 50 , Bryson, J.A. pointed out: 15. Putting one’s best foot forward is an important obligation of parties to a

summary judgment motion. A respondent to a

summary judgment motion “must lead trump or risk losing” ( Goudie v. Ottawa (City), 2003 SCC 14 at ¶ 32 ). Assuming there has been adequate time for disclosure, an absence of evidence cannot be overcome by arguing that something might turn up in the future. The Supreme Court emphasized the obligation of the parties in Canada (Attorney General) v. Lameman , 2008 SCC 14 : 19. We add this. In the Court of Appeal and here, the case for the Plaintiffs was put forward, not only on the basis of evidence actually adduced on the

summary judgment motion, but on suggestions of evidence that might be adduced, or amendments that might be made, if the matter were to go to trial. A

summary judgment motion cannot be defeated by vague references to what may be adduced in the future , if the matter is allowed to proceed. To accept that proposition would be to undermine the rationale of the rule. A motion for

summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future. ... [Emphasis in original] [ 22 ] As I implement the Shannex framework, I am neither to weigh evidence or assess credibility. In Hatch Ltd. v. Atlantic Sub- Sea Construction and Consulting Inc ., 2017 NSCA 61 , Farrar, J.A. commented on the approach: 23. The role of the motions judge on a

summary judgment motion is to determine whether the challenged claim discloses a genuine issue of material fact (either pure or mixed with a question of law). The onus is on the moving party to show there is no genuine issue of material fact. If it fails to do so the motion is dismissed. A material fact being one that would affect the result. 24. The motions judge must determine whether the evidence is sufficient to support the pleading, but he/she cannot draw inferences from the available evidence to resolve disputed facts. 25. This prohibition on weighing evidence was addressed by Saunders, J.A. in Coady . After discussing the law of

summary judgment in Nova Scotia, he provides a list of principles, including: [87] … 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. [Emphasis in original] 26. The law is clear that judges on

summary judgment motions under Rule 13.04 are not permitted to weigh evidence … Determination [ 23 ] With the foregoing principles in mind, I turn to a determination of the present case. [ 24 ] I begin with consideration of the context. The essence of Thompson’s case is that his coal hauling was “unlawfully” terminated when DEVCO prohibited his entry to the coal yards. He alleges that DEVCO interfered with his economic relations and caused him loss. While not specifically referenced in Thompson’s statement of claim, he argues his claim as one of indirect interference with contractual relations.

As noted, he relies on the 2002 decision of our Court of Appeal in Tardif . Tardif is an injunction case. The tort was not directly considered. However, Cromwell, J.A. (as he then was) noted that the law in relation to economic torts was then not well developed. [ 25 ] More recently, Justice Cromwell took the opportunity to clarify the essential elements of the tort as he wrote for the Supreme Court of Canada in A.I. Enterprises . A narrow view was confirmed early in the reasons: [5] In

summary, the issues and my conclusions are these: A. What is the scope of liability for the tort of causing loss by unlawful means? In light of the history and rationale of the tort and taking into account where it fits in the broader scheme of modern tort liability, the tort should be kept within narrow bounds. It will be available in three party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff …

(1) What sorts of conduct are considered “unlawful” for the purposes of tort? Conduct is unlawful if it would be actionable by the third party or would have been actionable if the third party suffered a loss as a result of it. The alleged misconduct of the defendants in this case was not unlawful in this sense and therefore they cannot be held liable on the

basis of the unlawful means tort. [ 26 ] The decision of the Supreme Court of Canada in A.I. Enterprises was considered in Grand Financial Management Inc.

There, the Ontario Court of Appeal confirmed the three essential elements of the tort at para. 62: [62] The trial judge properly identified the three essential elements of the tort as traditionally understood: first, the defendant must have intended to injure the plaintiff’s economic interests; secondly, the interference must have been by illegal or unlawful means; and thirdly, the plaintiff must have suffered economic harm or loss as a result: see Alleslev-Krofchak v. Valcom Ltd. , 2010 ONCA 557 , 322 D.L.R. (4 th ) 193 , and cases cited therein, leave to appeal refused, [2010] S.C.C.A.

No 403. [ 27 ] Transposing the essential elements to the present case requires Thompson to establish that DEVCO employed unlawful acts against its coal customers intending those acts to cause Thompson economic loss. In the context of a

summary judgment motion, the threshold issue is whether there is any material dispute of fact requiring trial. In my view, the answer to the threshold question is no. [ 28 ] There was no contest that throughout the relevant period, DEVCO had an obligation to provide coal to eligible customers at a subsidized rate. This obligation was a contractual one governed by a policy instituted by the DEVCO finance department and enforced by security personnel. It is uncontested that eligible customers could retrieve the coal themselves or could hire a hauler.

Most chose to hire haulers like Thompson to retrieve and deliver their coal. [ 29 ] Thompson became the subject of an investigation in 2007 and 2008. As a result of observations made by security personnel, DEVCO formed the belief that Thompson was skimming coal. They terminated his access to the coal yards by delivering a notice under the Protection of Property Act in September of 2008. This effectively ended Thompson’s coal hauling business and the income derived from it. [ 30 ] There is no evidence of any impact on Thompson’s customers.

It is not disputed that those customers continued to be eligible for subsidized DEVCO coal. There was no interference in DEVCO’s contractual obligations to these customers. The only impact in evidence is that eligible customers could no longer employ Thompson to deliver their coal. [ 31 ] Thompson clearly disputes the belief formed by DEVCO investigators and argues that it had no justification to terminate his access to the coal yard. It is on this basis that Thompson says there are material facts in dispute requiring trial. I disagree. The concept of justification is not material to the analysis.

What is required is for Thompson to establish that

(1) DEVCO acted unlawfully toward its customers in a way that constitutes an actionable wrong ( see: A.I. Enterprises Ltd . at paras 5 and 23-27 ), and (2) in doing so, DEVCO intended to cause economic harm to Thompson. On the issue of intention, it is not enough to prove that Thompson’s losses were foreseeable. Thompson must prove that DEVCO committed the unlawful act to cause him financial loss. Whether or not DEVCO can justify its action against Thompson is irrelevant.

Any dispute of fact, or mixed fact and law on this point is not a material one. [ 32 ] I then ask myself on the facts and law whether the claim has any real chance of success. The burden is on Thompson. In my view, there is no real chance that Thompson can be successful. [ 33 ] On this motion, both parties are obligated to put their best foot forward. Thompson has not established that DEVCO acted unlawfully in any way toward its coal customers. In the absence of any unlawful act, the claim cannot succeed. [ 34 ] Nor has Thompson established any basis to say that DEVCO had the requisite tortious intent.

On the facts of the case, DEVCO conducted an investigation and formed a belief that Thompson was skimming coal. This belief is not disputed. DEVCO acted in furtherance of its belief. Its general intent, on the evidence, was to maintain the integrity of the domestic coal provision policy. More specifically, its intent was to stop Thompson from skimming coal from his deliveries. There is no basis to say that DEVCO committed an unlawful act in furtherance of an intent to cause loss to Thompson.

On the evidence, there is no real chance that such an intent can be proven. [ 35 ] The main thrust of Thompson’s argument is that DEVCO did not prove its claim that he was stealing coal from his deliveries. On this basis, Thompson says that DEVCO was not justified in prohibiting his entry to the coal yards. This position cannot succeed for two reasons. First, DEVCO does not need to justify its decision to restrict access to its property. There is no basis in fact or law to say such justification is required.

Secondly, even if it could be said that DEVCO failed to justify its prohibition, at best this would constitute an unlawful act toward Thompson which he could seek to remedy directly. It could not, by any assessment, constitute an actionable claim by Thompson’s customers. For this reason, there is no basis to say that Thompson’s claim in tort has any real chance of success. Conclusion [ 36 ] The motion for

summary judgment on evidence is granted and Thompson’s claim is dismissed. [ 37 ] DEVCO is the successful party and entitled to costs. The parties shall attempt to agree on quantum, failing which they may provide written submissions within ten days. Gogan, J.