Nova Scotia (Attorney General) v. Annapolis County (Municipality)

Nova Scotia (Attorney General) v. Annapolis County (Municipality) Court Court of Appeal Date 1996-10-15 Citation 1996 NSCA 197 Docket CA 130582 Judge/Registrar/Adjudicator Clarke, Lorne O. (Honourable Chief Justice); Jones, Malachi C. (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice) Document Type Decision Decision Content C.A. No. 130582 NOVA SCOTIA COURT OF APPEAL Cite as: Nova Scotia (Attorney General) v. Annapolis County (Municipality), 1996 NSCA 197 Clarke, C.J.N.S., Jones and Pugsley, JJ.A. BETWEEN: ATTORNEY GENERAL OF NOVA ) Catherine Lunn SCOTIA ) for the Appellant Appellant ) ) ) - and - ) ) ) W. Bruce Gillis, Q.C. ) for the Respondent ) MUNICIPALITY OF ANNAPOLIS ) COUNTY ) Respondent ) ) ) Appeal Heard: ) October 15, 1996 ) ) Judgment Delivered: ) October 15, 1996 ) ) ) THE COURT: Leave to appeal is granted, but the appeal is dismissed with costs in the cause, per oral reasons for judgment of Pugsley, J.A.; Clarke, C.J.N.S. and Jones, J.A. concurring. The reasons for judgment of the court were delivered orally by Pugsley, J.A.: The Attorney General of Nova Scotia (the Province) appeals from the decision of a Supreme Court Judge in Chambers, dated July 31, 1996, allowing the application of the Municipality of the County of Annapolis (the Municipality) for an order requiring the Minister of the Environment, and other agents of the Crown, to attend for examination on discovery and to produce documents for inspection by the Municipality, in accordance with the Civil Procedure Rules. The brief history of the proceedings discloses: - On May 7, 1996, the Province obtained an interim injunction restraining the Municipality from conducting open burning of solid waste in the Municipality;'' - The Province commenced action by way of originating notice and statement of claim, seeking a permanent injunction, in compliance with an order renewing the injunction, on May 30, 1996; - The Municipality filed its defence and counterclaim on June 12, 1996. We are advised the trial of this case has been set down for Annapolis Royal on November 6th, 7th and 8th, 1996. The Civil Procedure Rules providing for inspection and production of documents, as well as oral examination on discovery, are enacted pursuant to s. 46 of the Judicature Act, c. 240, R.S.N.S. (1989)). The Judicature Act does not expressly purport to bind, and therefore does not affect, the Crown's prerogative to refuse discovery (s. 14, Interpretation Act, c. 285, R.S.N.S. (1989)). Actions against the Crown are governed in this province by the Proceedings Against the Crown Act, c.360, R.S.N.S. (1989). A proceeding against the Crown is defined in s. 2(f) of that Act and includes a claim by way of set off or counterclaim raised in proceedings by the Crown. S. 11 of the Proceedings Against the Crown Act provides in part that In proceedings against the Crown, the rules of the court in which the proceedings are taken as to discovery and inspection of documents, examination for discovery and interrogatories apply in the same manner as if the Crown were a corporation ... S. 4 of the same Act authorizes a person who has a claim against the Crown to enforce it as a right by ...proceedings against the Crown in accordance with this Act in all cases in which ... (b) the claim arises out of a contract entered into by or on behalf of the Crown; or (c) the claim is based upon liability of the Crown in tort to which it is subject by this Act. The Chambers judge determined that the "pleadings clearly bring" the Municipality's counterclaim "within that range of actions contemplated by s. 4 and rendered the Crown and its agents liable to discovery and inspection of documents under the provisions of s. 11." This decision related to the machinery for adjustment of the rights of the parties, and did not deal with or determine the subject matter to the litigation (Strachan v. Riggs (1935), O.W.N. 307 (Ont. C.A.)). The burden is therefore on the Province to establish that the Chambers judge applied wrong principles of law, or that a patent injustice would result if the Province's appeal was to be dismissed (Exco Corp. v. N.S. Savings & Loan Company (1983), 59 N.S.R. (2d) 331 at 333). We are satisfied that neither burden has been met by the Province. The material parts of the defence and the counterclaim are as follows: 6. The [Municipality] further says that the Minister of the Environment for the Province of Nova Scotia, the Honourable Wayne Adams, entered into an agreement with the [Municipality] through its Warden, Peter Terauds on the 19th day of March, 1996 in which he specifically agreed to permit the activities complained of at the waste disposal sites within the Defendant Municipality pending the establishment within a reasonable time of an alternative waste disposal site to be approved by the Minister of the Environment and that the agreement is binding upon the [Province] and that the action herein is being taken contrary to the terms of that agreement. 7. The [Municipality] repeats the above paragraph and says that the [Municipality] was explicitly induced by the representations and undertakings made by the Minister of the Environment on behalf of [the Province] to continue with the activities complained of at its waste disposal sites in reliance upon those representations and agreements and that the [Province] ought therefore to be estopped in law or in equity or prevented by general principles of equity from claiming the relief sought in the Originating Notice. Counterclaim 10. The [Municipality] repeats the above statements and claims against the [Province] for a declaration that the Regulations referred to in the Statement of Claim have not become law, and in addition or alternatively, that they are void by reason of vagueness or uncertainty, and additionally or alternatively that they are contrary to law and that they purport to prohibit rather than regulate the activity complained of. 11. The [Municipality] further claims costs of the counter-claim herein and damages amounting to the cost to the [Municipality] of compliance with the Interim Injunction obtained by the [Province] under S. H. Number 127253 and any further Injunctions obtained by them prohibiting the [Municipality] from continuing with its disposal systems. The provisions of s.6 and s.7 of the defence, which are made the subject of the counterclaim, are sufficiently broad, in our opinion, to encompass the type of claim contemplated by s.4(b) and s. 4(c) of the Proceedings Against the Crown Act. We would grant leave to appeal, but dismiss the appeal, with costs in the cause. Pugsley, J.A. Concurred in: Clarke, C.J.N.S. Jones, J.A. C.A. No. 130582 NOVA SCOTIA COURT OF APPEAL BETWEEN: Attorney General of ) Nova Scotia ) Appellant ) ) ) - and - ) REASONS FOR ) JUDGMENT BY: ) ) Pugsley, J.A. Municipality of the County ) (Orally) of Annapolis ) ) Respondent ) ) ) ) )