Keating v. Nova Scotia (Attorney General)

Keating v. Nova Scotia (Attorney General) Court Supreme Court Date 2003-09-11 Citation 2003 NSSC 187 Docket SH 191112, SH 199747, SH 201680 Judge/Registrar/Adjudicator Goodfellow, Walter R. E. (Honourable Justice) (SC) (SC) Document Type Decision Relations Library Sheet - Keating v. Nova Scotia (Attorney General) - 2003 NSSC 187 - 2003-09-11 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Keating v. Nova Scotia (Attorney General), 2003 NSSC 187 Date: 20030911 Docket: SH 199747; 191112; 201680 (resp.) Registry: Halifax Lee Keating Terrence L. Smith Paul Branscombe Plaintiffs - and - The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendant DECISION Judge: The Honourable Justice Walter R. E. Goodfellow Heard: August 21st and September 11th, 2003 in Halifax, Nova Scotia Written Decision: September 11th, 2003 Counsel: W. Dale Dunlop, Kishan Persaud A/C for the Plaintiffs Edward A. Gores, for the Defendant Robert L. Barnes, Q.C. in attendance for Ms. Alison Scott By the Court: BACKGROUND [1] The Attorney General of Nova Scotia filed an application pursuant to Civil Procedure Rules seeking an order enjoining the law firm of Walker Dunlop from acting in these three proceedings. The application was initially set for the 20th of August 2003 and subsequently adjourned. The Chambers Justice due to hear this matter on the adjourned date, August 21st, 2003, determined he had a conflict and I was asked late on the 20th of August to hear the application. [2] In addition to the application to enjoin the Walker Dunlop Law Firm from acting in these proceedings, additional issues were raised; mainly: 1) Application by the plaintiffs to strike portions of the affidavits filed by the Attorney General; namely, the affidavit of Carolyn R. Newbery sworn and filed June the 19th, 2003; the supplementary affidavit of Carolyn R. Newbery sworn and filed the 15th of August 2003; and the further supplementary affidavit of Ms. Newbery; and the affidavit of Susan Kidson sworn the 18th of August 2003. 2) In addition, an application to have admitted the affidavit of Harry Murphy, a former Superintendent of the Royal Canadian Mounted Police, sworn the 25th of May 2000 and filed in the Freedom of Information and Protection of Privacy Act Appeal in Supreme Court File 2000 SH 155707, an appeal taken by Lee Keating resulting in a decision by Justice David W. Gruchy June 13th, 2001. [3] I concluded that it was necessary to deal with these additional claims for relief before finalizing the application to enjoin Walker Dunlop Law Firm. Additionally, after the August 21st adjournment I raised the issue of an affidavit from Alison W. Scott, presently the Clerk of the Executive Council and Deputy Minister of Intergovernmental Affairs for the Province of Nova Scotia, and received an indication from Mr. Dunlop that such was forthcoming. I received a five-page undated letter from Ms. Scott outlining her position throughout to which I have responded that her position should be advanced formally by affidavit - this should be done as soon as possible and prior to the resumption of the main application by the Attorney General to enjoin the Walker Dunlop Law Firm. Ms. Scott has engaged counsel and the Attorney General raises the question of whether or not it necessities an intervenor status. Had Ms. Scott not obtained counsel, I would have recommended that she do so and I am giving Robert L. Barnes, Q.C. standing. I indicated to Mr. Barnes that if he decides his client should file an affidavit, that he might well add the caveat that to go further would require, in her view, an examination of governmental records and any determination in that regard will have to be addressed at a later date. Similarly, Mr. Dunlop raised the issue of confidentiality and I agree with Mr. Gores that that issue will also have to be addressed at a later date. Additionally, on the hearing of August 21st, I raised the issue of reviewing some of the files in which the Attorney General indicated the nature and involvement of Alison Scott would clearly show a conflict of interest, and three boxes plus of files have been delivered to me which will take some time to review and for me to determine the nature of my report to counsel before proceeding with the final argument and determination of the enjoining application. ISSUE NUMBER ONE 1. Application to strike out portions of some of the affidavits filed by the Attorney General of Nova Scotia. (a) General - [4] The Civil Procedure Rules provides some assistance in determining the boundaries for the use of the affidavit evidence in trials and applications. Contents of affidavit 38.02 (1) An affidavit used on an application may contain statements as to the belief of the deponent with the sources and grounds thereof. (2) Unless the court otherwise orders, an affidavit used on a trial shall contain only such facts as the deponent is able of his own knowledge to prove. Cross-examination of deponent of an affidavit 38.10 A deponent of an affidavit to be used on a trial or hearing may be examined, cross-examined and re-examined on, (b) a trial under rule 31.04; (c) a hearing under rule 37.09(1)(c). Scandalous, etc., matter in affidavit 38.11 The court may order any matter that is scandalous, irrelevant or otherwise oppressive to be struck out of an affidavit. Use of affidavit in subsequent applications 38.14 An affidavit that has been used and filed in a proceeding, may be used on any other application in the proceeding. Evidence on hearing of application 37.09 (1) Evidence on a hearing may be given, (a) by an affidavit or statutory declaration made pursuant to Rule 38. (2) Where there is or may be a dispute on a hearing as to the facts, the court may, before or on the hearing, order that the application shall be heard on oral evidence, either alone or with any other form of evidence, and may give such other directions relating to any pre-hearing procedure and the conduct of the application as it considers just. [5] In addition, CPR 37.02 requires a notice of application to be accompanied by a true copy of any affidavit to be used in support of the application and CPR 37.02(3) requires where there is a notice of application in an existing proceeding, that the interlocutory notice with any supporting affidavit shall be filed. [6] In Waverley (Village Commissioners) v. Nova Scotia (1993), N.S.R. (2d) 46, Justice Davison stated at para 15: [15] Although affidavits used in applications such as the proceeding that is presently before the court can be based on information and belief, the source of the belief must be specifically identified and the source should be the original source of the information. [7] In Gordon v. N. S. Teachers’ Union (1983), 59 N.S.R. (2d) 124 (N.S.C.A.), MacKeigan, C.J.N.S. (as he then was) stated at p 126: [6] ... I agree with Mr. Justice Richard that the affidavits in large part violated the basic rule that affidavit evidence must be confined to facts known to the deponents personally or learned by them from identified persons. Indeed, the portions admitted by the judge fall close to the line, but I would not on this interlocutory appeal assume to question his exercise of discretion in admitting them. [8] See also MacDonald v. WCB (1995), 145 N.S.R. (2d) 301. [9] It is clear from the authorities and Civil Procedure Rule 38.02(1) that on applications of which statements are based on the belief of the deponent, provided the sources and grounds are stated, can be expressed by affidavit. Subject to the discretion of the court, an affidavit at trial shall contain only facts that the deponent is able of his/her own knowledge to prove. (b) Specific objections to paragraphs in affidavits - [10] Ms. Carolyn R. Newbery, a legal assistant employed with the Department of Justice filed three affidavits. The first June the 19th, 2003; a supplementary affidavit August the 15th, 2003; and a further supplementary affidavit at the hearing on August the 21st, 2003. [11] Mr. Dunlop takes exception to paragraph 2 of her affidavit which is as follows: 2. I am advised by counsel for the Defendant in this proceeding, and do verily believe, that from the time of the initial RCMP investigation of the allegations of abuse at the hands of Patrick MacDougall until March 31, 1997, excepting for her two-year secondment to the Clerk of the Executive Council office, Alison Scott was employed as a litigation lawyer with the Department of Justice and that through that employment, Ms. Scott provided legal advice to the Province of Nova Scotia in handling civil actions arising out of allegations of abuse against Mr. MacDougall and in civil actions by a large number of other former residents arising out of allegations of abuse by former and current employees of the Province of Nova Scotia. Further, I am similarly advised and do verily believe that Ms. Scott was also the lead lawyer giving advice on setting up the Institutional Abuse Program and gave legal advice to a number of people, including the then Deputy Minister of Justice and to the first Program Director, Paula Simon. [12] Mr. Dunlop states his objections as being: 1. That Ms. Newbery was simply putting down information given to her by Mr. Gores. 2. That Ms. Newbery indicated Mr. Gores has not been employed at the Department of Justice during the period of time for which he was providing her with the information about Ms. Scott’s alleged activities. [13] The position adopted by Mr. Dunlop is that the source of information and belief is hearsay or alternatively, the documents supporting Ms. Newbery’s conclusions have not been put before the court. He takes the position that it must be struck in its entirety, as it is merely the opinion of Mr. Gores and Mr. Gores opinion cannot form, in his view, the bases of Ms. Newbery’s knowledge and belief. [14] Mr. Gores contends the paragraph is admissible under CPR 38.02 and takes the position that Ms. Newbery both identifies the source of the facts and that she believes the information be true. In addition, he says that Ms. Newbery gave evidence, in part, from her own personal knowledge as to Ms. Scott’s employment as follows: 1. That Ms. Scott was employed by the Department of Justice until March, 1997 excepting her two-year secondment to the Clerk of the Executive Council. 2. That Ms. Scott provided legal advice to the Province of Nova Scotia in civil actions, arising out of allegations of abuse against one MacDougall and in other civil actions by former residents. In addition, he says Ms. Newbery was personally aware of Ms. Scott having acted on files in respect of claims of institutional abuse against employees and former employees. Ms. Newbery’s knowledge he says is from her preparation of correspondence, receipt of demands under the Alternate Dispute Resolution Program and that she knew Ms. Scott was responsible for settling some requests for compensation with settlement payments. [15] Ms. Newbery states her evidence as to the employment of Ms. Scott with the Department of Justice by way of information and belief and in her testimony under cross-examination by Mr. Dunlop states: Q. Yeah. There’s no question she was an employee, she was a lawyer with the Department, she was involved with the Institutional Abuse Compensation Program? A. Yes. Q. And Ms. Simon? A. Yes. Q. Oh, it was Mr. Gores advised you. Okay. So the source of your information in paragraph 2 all comes from Mr. Gores? A. Well, actually I was aware of part of it because I worked with the Department of Justice at that time as well. Q. Uhm-mm. And how would you be aware of that advice Ms. Scott was given regarding any particular files? A. How would I be aware? Q. Yes? A. I don’t really know how to answer that. Just if Mr. Gores advised me or I did do some correspondence for her at the time. I don’t recall whether there was advice in that correspondence or not, but ... Q. Okay. Now, you were aware that Ms. Scott left in 1997? A. Uhm-mm. Q. March of ‘97? A. Uhm-mm. A. Uhm, I searched for any files where Alison Scott was the solicitor and in the subject field I would have picked up any that dealt with abuse-Shelburne, abuse-Truro. Those files. Q. Okay. Now, the information that went in would have been inputted by who? A. Ah, whoever her assistant was at the time. Q. Do you know who that was? A. Uh, at the time? It may have been Darlene Wilson and I know I did some of it. Probably mainly Darlene Wilson. [16] Under re-direct examination by Mr. Gores, Ms. Newbery testified as follows: Q. In response to a question from Mr. Dunlop, you indicated that to your personal knowledge Ms. Scott was a file reviewer for a period of time? A. Yes. Q. What is a file reviewer? A. When the claims come in she would ... or any of them would review what was claimed. You know, they usually set out the abuse they allegedly suffered and then she would review that ... and there were categories, you know, different categories of abuse were worth different amounts and then they would decide what that was and do a letter setting that out. Q. And you indicated that you yourself typed letters of offers that Ms. Scott made? A. I do ... I do recall doing that. I don’t recall how many. Q. And those who ... letters would have been to claimants in that Alternate Dispute Resolution Program? A. It probably was before the program itself was set up. I mean ... you know, while they were getting ready for that. Q. And Ms. Scott was doing that in her capacity as a lawyer with the Department of Justice? A. Yeah. Q. In your knowledge of her activity in regard to making offers of settlement to these individuals who have made claims within the program or the Compensation Program, that comes to you as a result of your employment with the Department of Justice? A. Right. [17] Considering Ms. Newbery’s personal knowledge, combined with the fact that it is a matter of record that Ms. Scott was employed as indicated, I do not find the first sentence of paragraph 2 offensive with the exception that I would strike the word “large”, as that is very much a relative term and there is no foundation for such by way of a source of personal knowledge or Mr. Gores’ expression of opinion. [18] With respect to the remainder of paragraph 2, Mr. Dunlop is correct that Mr. Gores was not employed at the Department of Justice during the period in which he advises Ms. Newbery the opinion in her affidavit that Ms. Scott was the “lead lawyer”. The source, being Mr. Gores, is not an original source of information and if it were intended to establish that Ms. Scott was the “lead lawyer”, there would have to be more of a foundation and source, probably by someone of authority within the Department of Justice with personal knowledge of such. Accordingly, this second sentence of this affidavit is struck. [19] Mr. Dunlop asks that paragraph 3 of Ms. Newbery’s affidavit be stricken and her paragraph is: 3. On a review of the files opened by the Department of Justice in respect of alleged abuse by former and current employees as made by former residents of the Province’s residential institutions, it appears that Ms. Scott was solicitor of record for at least 729 claimant files. [20] Mr. Dunlop takes the position that Ms. Newbery’s testimony was that her initial review of documents was limited to a computer search and that Ms. Kidson’s cross-examination made it clear that the Institutional Abuse Compensation Program claimant files were kept in a separate area and apart from the Justice files and that neither she nor Ms. Newbery had access to them. Mr. Dunlop suggests that Ms. Newbery’s paragraph 3 does not have an evidentiary foundation. Secondly, he objects to the terminology, “solicitor of record”. [21] Mr. Gores in response suggests that Mr. Dunlop’s clients misunderstand both paragraph 3 and the testimony of both witnesses. Mr. Gores advances that the review of the files and reporting thereon comes within ss. 22, 23 and 24 of the Evidence Act. [22] It seems to me that an employee of Government or business as indicated in the Evidence Act can review files and records and state clear findings such as that the name of Alison Scott is present in a number, even a specific number, of files. What is objectionable is to go further and express the opinion that Ms. Scott appears to be “solicitor of record”. I address the terminology, “solicitor of record”, in my determination of the admissibility of Ms. Kidson’s affidavit and my remarks thereon apply as well to paragraph 3 of Ms. Newbery’s affidavit and the terminology, “solicitor of record” is struck, leaving the evidence by Ms. Newbery’s affidavit that she checked databases, that is business records, and found Ms. Scott’s name in at least 729 of the claimants files, but it goes no further. As to “solicitor of record”, at best, Ms. Newbery is expressing her opinion or the opinion of the person who dictated the affidavit and such is not appropriate in the contents of an affidavit. [23] With respect to the further supplementary affidavit, the objection is that certain portions of the affidavit are blacked out and I understand they are done for reasons of confidentiality/privacy and this is not an uncommon occurrence. The court relies upon counsel who are officers of the court; therefore, the mere fact that portions of the letter are blacked out does not render it inadmissible. Mr. Dunlop is entitled to reserve an argument that he must be privy to a clean copy and he has whatever reasonable time is necessary to make that determination and hopefully, this will not be necessary. [24] The affidavit of Susan Kidson, a legal assistant, employed by the Department of Justice indicates that she was asked by a departmental solicitor to review a list of an answer to demand for particulars. The list represents persons who the plaintiff, Terrence L. Smith, alleges committed fraud and Ms. Kidson was asked to determine from the Department of Justice database which of these claims were files assigned to Alison Scott as solicitor of record. [25] Ms. Kidson proceeds to note on a substantial and probably majority of the seven-page list of names the notation “Scott” where she determines from the database Alison Scott was, as she says, “solicitor of record”. [26] Solicitor of record is not defined in the Civil Procedure Rules. Guidance can be found in the Civil Procedure Rules and in particular: Personal service of a document 10.03 (2) Where a solicitor indorses on a copy of a document that he accepts service on behalf of a person, the document shall be deemed to have been personally served on the person on the date on which the endorsement was made. Other documents: Effecting service 10.12 (4.1) Where a solicitor or a party agrees to accept service of a document by email or electronic document exchange, service is effected when the document is sent. [27] CPR 44 which deals with the change of solicitor commences in CPR 44.01(1) with the terminology: Notice of change of solicitor 44.01(1) A party who sues or defends by a solicitor may change his solicitor without an order, but until notice of the change is filed with the prothonotary and served on every other party, the former solicitor shall, subject to rules 44.05 and 44.06, be considered the solicitor of the party until the conclusion of the proceeding. [28] The remainder of CPR 44 indicates a solicitor acting on behalf of a party in a proceeding. Proceeding is widely defined in CPR 1.05(w). It relates to the activities in and of the court. [29] For the purposes of court proceedings, a solicitor on record must be a lawyer or self-represented party who sues or defends or acts for a party in a proceeding. [30] This does not preclude a wider connotation for the terminology “solicitor of record”. For example, a solicitor who represents someone before a board, commission, etc. would quite likely be termed “solicitor of record”. The context of which Ms. Kidson is speaking is within Supreme Court proceedings. It is clear from Ms. Kidson’s evidence that she acted on the instructions of Dale Darling, a solicitor with the Department of Justice, to review the database and see which files the name Alison Scott was noted. She did not review any hard copies and what she expresses as “solicitor of record” is merely an opinion and it is clear that her opinion is simply based upon the name Alison Scott being within files. She did not review any hard copy files and her evidence under cross-examination is as follows: Q. And I gather that you did not review any hard copy files? A. I did review hard copy files as well, double-checking to make sure that there was in fact the same person that we were looking at. Q. Okay, we’ll get back to that. So you look at the database initially? A. Yes. Q. And that would be the Department of Justice database? A. Yes. Q. That was not the ADR database? A. No it wasn’t. Q. You’re aware that the great majority, if not all of the persons who appear in Schedule ‘A’, were processed through the ADR, the Institutional Abuse Compensation Program? A. I assume that they were, yes. Q. But you did not go to that program’s database? A. No, we no longer have access to it. Q. When did that happen? A. When the program closed down and it was transferred to the Victims and Policing Services Division. Q. And where’s that? A. Located at Department of Justice. Q. So what you had access to, is it fair to say it’s the input when somebody first went into this program, a file would be opened at Department of Justice? A. In legal services case tracking, yes. Q. And then the file would eventually..a new file would be opened at the Institutional Abuse Compensation Program? A. They..the program had started before I started in the Legal Services Division, but it..in most cases, they were the same file. It was initially opened by a lawyer that when they developed the program, it was switched over to..they were basically their own division, it was the Compensation for Institutional Abuse Division. Q. Okay and that.. A. Which were.. Q. I’m sorry? A. Which were not permanent Justice employees, they were contract or term employees specifically hired to deal with that program. Q. And Ms. Scott was a permanent employee? A. Yes she was. Q. The people..these were the people that we call file assessors, the temporary employees? A. Yes. Q. And they worked physically at a different location than where you were? A. Yes. Q. And they were the ones who actually processed and negotiated the settlements? A. I can only assume that they did everything unless it..unless they chose not to go through the ADR Program and to sue civilly. Q. But anyone who went through the ADR Program would have been directed to this separate division of the Department of Justice, correct? A. Yes. Q. And those negotiations and settlements would have been done by the file assessors? A. Yes. Q. Of which Ms. Scott was not one, as far as you’re aware? A. I can’t answer that question cause I’m not aware if she was or not. Q. Okay. So the documents that you..well, you reviewed your database and identified Ms. Scott’s name? A. Yes. Q. And then what did you do? A. Once I went through the list, I then checked with our central registry to see if the files were upstairs. If they weren’t upstairs, then they were requested. Q. Okay and did you get all the files? A. Yes. Q. And in each one you’ve gone through and added the name “Scott”? A. Yes. Q. That’s in your writing? A. Yes. Q. And that would indicate that Ms. Scott’s name appeared in the file? A. Yes, when it was initially opened. Q. So you reviewed the files? A. I..I went to the beginning of the files to see where..where things started. Q. Now, of the files that you’ve identified Ms. Scott has been involved in, how many ended up being ADR files? A. I don’t have a breakdown of all of them. I would assume that all of them originally started as ADR files. Q. And..I don’t want to confuse you here - would it not be the case that they would start with the Department of Justice and end up becoming ADR files? A. When they were initially opened. Q. Can you tell me the type of material that you reviewed in these files? A. It was the letter, Notice of Intended Action, correspondence back and forth between the file reviewer who was assigned to the file and the solicitor representing the plaintiff. Q. Okay, let me get this correct - there were Notices of Intended Action, correct? A. Yes. Q. I’m going to suggest there was notices in virtually every file you looked at? A. Yes. Q. And Ms. Scott acknowledged receipt of those, correct? A. Actually I guess the proper name of them were Demands. Q. And those..receipt was acknowledged of those? A. Yes. Q. Then they were forwarded to the file assessor? A. Then they went into the hands of the compensation program, the file assessor, yes. Q. Of which Ms. Scott was not one, as far as you’re aware? A. As far as I’m aware. Q. But she was physically in the Department of Justice on Terminal Road, correct? A. Yes. Q. And the program was somewhere else, wasn’t it? A. Yes, due to space. Q. So you know, so the files were shipped over to this completely separate department and processed from there? Q. The files that you reviewed were closed files, were they not? A. We don’t have all the files. There were two separate databases when the compensation program was developed; they kept their own program files. Q. Yes? A. They had their own system. That system wasn’t available to Department of Justice Legal Services Division, so therefore they kept their separate records and Legal Services kept their separate database. We didn’t have all of the same files. Q. And Ms. Kidson, I’m gonna suggest it was the ADR Program, those were the ones who negotiated the settlement and dealt with the lawyers for the plaintiffs? A. Yes, if they were completed, yes. Q. If they were completed um.. A. If for any reason they decided to opt out of the program, then it would become a litigation and they would file a Notice of Intended Action, an Originating Notice and go civilly. Q. And how many of those did you see in the files that Ms. Scott was taking care of? OBJECTION - MR. GORES (Dealt with) MR. DUNLOP: Ms. Kidson, are you able to tell the Court of the files that came back from ADR and resulted in litigation, how many of those Ms. Scott was..continued to act as solicitor? A. That was before my time, I don’t know. Q. Well, did you see any in your review? You said you looked at the files, right? A. Yes, I looked at the files. Q. And you went through them, I presume, in their entirety? A. At the beginning to see where they started, where they originated at. Q. Okay. A. If..if..it did not come back to us ah civil litigation and it was dealt with and closed. Those files went directly to Central Registry; they were sent directly by the Compensation Program - they didn’t come back to Legal Services. THE COURT: But the ones that did come back, you didn’t make a note as to who..who individually handled it.. A. No I didn’t. Q. I.e., whether Ms. Scott did or somebody else? A. No I didn’t. [31] On re-direct examination by Mr. Gores, Ms. Kidson testified as follows: Q. And when..do you recall the time that you joined um..Legal Services? A. Legal Services, it was the end of June, first of July of ‘98. Q. 1998. So Ms. Scott had gone by the time that you joined? A. Yes she had. Q. And a Notice of Intended Action is what, to your knowledge? A. Formal notice that an individual is planning to bring an action against the Province or any individual and to give them, I believe it’s 60 days notice that they can in fact pursue it by an Originating Notice. Q. So the Demand initiates the ADR Program and compensation under the ADR Program and the Notice of Intended Action is something that is required to initiate a lawsuit? A. Yes. CONCLUSION [32] The statement in Ms. Kidson’s affidavit that Ms. Scott was “solicitor of record” may well be identifying terminology utilized for computer processing within the Department of Justice but in her affidavit filed in court proceedings, it represents nothing more than her opinion and opinion evidence is not normally acceptable in an affidavit. It is advanced by the Attorney General of Nova Scotia as if it were in the context of being at the level within the determination the court would make within the Civil Procedure Rules. In the result, the affidavit of Ms. Kidson is struck and removed from the application. ISSUE NUMBER TWO 2. Should the Affidavit of Harry Murphy sworn May the 25th, 2000 in S. H. No. 155707 be received in evidence in the application by the Attorney General to enjoin the law firm of Walker Dunlop for acting on behalf of the Plaintiffs? [33] Mr. Harry Murphy, a former superintendent of the Royal Canadian Mounted Police, acting as a licensed private investigator, President and sole owner of Fax-Probe Incorporated, was engaged in December 1994 by the Honourable Justice Stewart Stratton, Q.C. to assist in investigation of alleged physical and sexual abuse of former residents of several provincially operated youth residential schools. The Attorney General of Nova Scotia filed a detailed affidavit of Harry Murphy sworn August the 25th, 2003 in its application to enjoin Walker Dunlop and that affidavit is before me as part of the record. Mr. Dunlop chose to decline cross-examination of Mr. Murphy on his August the 25th, 2003 affidavit. Initially, he declined on the condition that Harry Murphy’s previous affidavit of May the 25th, 2000 would form part of the record before me; however, absent consent, the onus was upon Mr. Dunlop’s clients to satisfy the court that the affidavit, filed in an entirely different application, should be received in a subsequent application and that such receipt is authorized by 19(1) of the Nova Scotia Evidence Act. EVIDENCE ACT DOCUMENTS IN COURTS Copy of court document 19 (1) A copy of any document, writing or proceeding, filed in any court in this Province, shall be received as evidence to the same extent as the original, if it is certified under the seal of the court or by the proper officer under his hand. [34] The first objection raised by the Attorney General is that the copy sought to be introduced was not presented as certified under the seal of the Supreme Court or by a proper officer of the Supreme Court, as required by s. 19(1). This objection is sound; however, the court exercises its discretion to permit the late certification. [35] It is my view that s. 19(1) does not authorize the receipt of evidence, but simply authorizes the use of a certified copy of any document, writing or proceeding and when so certified, it shall be received as evidence to the same extent as the original. Once certified, the plaintiffs entitlement to file the affidavit is governed by the Civil Procedure Rules. If Mr. Dunlop wishes to file the certified affidavit of Harry Murphy, dated May the 25th, 2000, the filing of such is in the same position as the filing of any other affidavit in an application. It is not necessary for an affidavit to be from a party in order to be filed. [36] The filing of a certified copy of Harry Murphy’s May the 25th, 2000 affidavit does however carry with it entitlement by the Attorney General to oppose its filing due to delay in certification and carries with it the entitlement of cross-examination. I have already indicated that leave is granted to file a certified copy of the affidavit of Harry Murphy and I agree with the Attorney General’s position that it is a factor, but, in my view, an extremely minor one to be considered eventually on the issue of costs. I have stated that filing of any affidavit gives rise to the right of cross-examination, but by so stating, I am not necessarily inviting the Attorney General to do so and if cross-examination takes place by the Attorney General, then the court will have to consider a probable application by Mr. Dunlop, who likewise may seek the cross-examination of the deponent, whose evidence in a subsequent affidavit forms part of the Attorney General’s application. ORDER [37] The court requests that Mr. Dunlop prepare the order and seek Mr. Gores consent as to form. It is agreed that Mr. Barnes has no requirement of participating in the form of the order. J.