Healy v. Halifax (Regional Municipality)

Healy v. Halifax (Regional Municipality) Court Supreme Court Date 2015-01-30 Citation 2015 NSSC 29 Docket 32808, 328084, 328086, 328092-101, 328105, 328132, 328133, 333639, Hfx. 328081 Judge/Registrar/Adjudicator Pickup, Arthur W. D. (Honourable Justice) Document Type Decision Relations Library Sheet - Healy v. Halifax (Regional Municipality) - 2015 NSSC 29 - 2015-01-30 - Library Sheet Decision Content SUPREME COURT OF Nova Scotia Citation: Healy v. Halifax (Regional Municipality), 2015 NSSC 29 Date: 20150130 Docket: Hfx. No’s. 328081, 328082, 328084, 328086, 328092, 328093, 328094, 328095, 328096, 328097, 328098, 328099, 328100, 328101, 328105, 328132, 328133, 333639 Registry: Halifax Between: Robert Healy and Anna Healy Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Robert F. Healy Insurance Agency Incorporated Plaintiff v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Douglas Tamlyn and Deborah Tamlyn Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Tamlyn Construction Limited and Aspen Resources Limited Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Donald Saunderson and Eileen Saunderson Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Martin Wexler and Cheryl Wexler Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Herman Hugenholtz and Beverley Ruth Hugenholtz Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Peter Hall Plaintiff v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Richard Bendor-Samuel and Stephanie Ouderkirk Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Brian Perry and Kelly Skelhorn Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Lyndsay Hugenholtz Plaintiff v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Eric Slone and Catherine Slone Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Beverley Sweetman Plaintiff v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants James Spurr and Valerie Spurr Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Robert Daniel Selkirk and Sonja McVeigh Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Aspen Resources Limited Plaintiff v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Miles Edward Gallagher Plaintiff v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Lara Ryan and Brett Ryan Plaintiffs v. Halifax Regional Municipality and Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants Judge: The Honourable Justice Arthur W.D. Pickup Heard: January 23, 2015, in Halifax, Nova Scotia Counsel: Phillip Chapman and Christine Nault, for the Plaintiffs MichaMichael Dunphy, Q.C. and Sandra Arab-Clarke, for the Defendants Halifax Regional Municipality and Halifax Regional Fire and Emergency Service Michael Pugsley, for the Defendant the Attorney General of Nova Scotia By the Court: [1] This is a motion by Halifax Regional Municipality ("HRM") and Halifax Regional Fire and Emergency Services ("HRFES"), hereinafter referred to as “the defendant HRM”, for an order revoking a non-party discovery subpoena issued on November 18, 2014 for Brian Conrad, a retired employee of HRM/HRFES. [2] The main action arises out of a forest fire which occurred on April 30, 2009 damaging or destroying several homes. The plaintiffs are the owners of these properties and allege gross negligence on the part of HRM and HRFES, and the Department of Natural Resources which provided assistance in suppressing the fire. Procedural Background [3] Discovery of eleven witnesses for the Attorney General of Nova Scotia (AGNS) took place in March, April and December 2013. Eight HRM/HRFES witnesses have also been discovered. [4] According to the defendant HRM, there have been approximately thirty-three days of discovery involving these witnesses. Of these days, twenty-six and a half days were conducted by counsel for the plaintiffs, including eighteen days of HRM/HRFES witnesses. [5] The plaintiffs say this is not a normal case involving one single incident, but rather a series of incidents involving dozens of people whose actual observations, as well the decisions they made during the time-frame of the fires, are highly relevant. The plaintiffs also say that this is a document intensive case, as the parties have exchanged over fifty-three hundred documents on liability, comprising over thirteen thousand pages. [6] Counsel for the plaintiffs, by email dated November 12, 2014 advised that he intended to subpoena Brian Conrad who was employed by HRFES as a district captain at the time of the fire. A discovery subpoena for Mr. Conrad was issued on November 18, 2014. The defendant HRM seeks revocation of this discovery subpoena (non-party), submitting that the discovery of Mr. Conrad is neither necessary or useful to advance the plaintiffs’ claims. They say he is a peripheral witness whose involvement has no bearing on the issues which are relevant to the determination of the allegation of gross negligence and, therefore, discovery will not promote the "just, speedy and inexpensive resolution of the proceedings". [7] The plaintiffs' position is that the information being sought from Mr. Conrad is relevant and not available from other witnesses including the designated manager for the defendant. [8] Prior to the hearing of this matter, the defendant HRM objected to portions of an affidavit filed on January 16, 2015 by counsel for the plaintiffs. The objection was heard at the beginning of the hearing, and a number of paragraphs in whole or in part were struck. The plaintiffs’ counsel is to file an amended affidavit deleting the struck portions. Civil Procedure Rules [9] The overall objectives of the Civil Procedure Rules are set out in Rule 1.01: Object of these Rules 1.01 These Rules are for the just, speedy, and inexpensive determination of every proceeding. [10] The process for discovery of both party and non-party witnesses is set out in Rule 18. Rule 18.02 provides, in part: Duties of party in an action 18.02 (1) After pleadings close in a defended action, a party must do all of the following: (a) in deciding whether a witness needs to be discovered, consider whether the discovery would promote the just, speedy, and inexpensive resolution of the proceeding; … Discovery subpoena in an action (non-party) 18.05 (1) A party to an action who provides required representations and undertakings may obtain a discovery subpoena directed to a witness who is not a party, an officer of a party, or an employee of a party. (2) A party requesting a discovery subpoena directed to a non-party witness must provide both of the following representations to the court and file all of the following undertakings: (a) representations that (i) the party is in compliance with Rule 15 - Disclosure of Documents, and Rule 16 - Disclosure of Electronic Information, (ii) the party believes the discovery would promote the just, speedy, and inexpensive resolution of the proceeding, including a concise statement of the grounds for the belief and an explanation of why a discovery subpoena is required instead of, or in addition to, an interview or a discovery by agreement; ... [11] The circumstances in which a judge may revoke a discovery subpoena is set out in Rule 18.08: Revoking a discovery subpoena in an action 18.08 (1) A judge may revoke a discovery subpoena that results from, or would lead to, an abuse of process in an action. (2) A judge may revoke a discovery subpoena (party) issued in an action to an officer or employee of a corporate party, if both of the following apply: (a) two of the corporate party’s employees or officers have already been discovered; (b) the further discovery would not promote the just, speedy, and inexpensive resolution of the proceeding. (3) A judge may revoke a discovery subpoena (non-party) that would lead to a discovery that does not promote the just, speedy, and inexpensive resolution of an action. [Emphasis added] [12] The grounds for revoking the subpoena by the defendants appear to be those arising under Rule 18.08(3). [13] Rule 18.24 gives guidance with respect to circumstances in which holding a discovery would promote the object of the Rules: Examples of just, speedy, and inexpensive discovery 18.24 (1) The following are examples of circumstances in which, depending on the circumstances as a whole, holding a discovery would promote the just, speedy and inexpensive resolution of a proceeding: (a) a non-party witness has information properly obtained by discovery and there are no other reasonable means for obtaining the information, such as conducting an interview; (b) a designated manager was ill-informed on discovery and discovery of other corporate officers or employees is necessary to obtain information the designated manager should have provided; (c) a party gave undertakings at a previous discovery that have not been fulfilled as promised and, as a last resort, the information is sought through further discovery; (d) because of illness, the court will not be able to compel a witness to attend trial or to answer questions, and commission evidence is inappropriate without discovery. (2) The examples in Rule 18.24(1) are to assist both of the following: (a) a party who determines whether a discovery would promote the just, speedy and inexpensive resolution of a proceeding, for the purpose of Rules18.02(1)(a), 18.04(2)(b), or 18.05(2)(a)(ii); (b) a judge who hears a motion to revoke a discovery subpoena under Rules 18.08(2) or 18.08(3). [Emphasis added] [14] Pursuant to Rule 18.05(2) the discovery subpoena issued by counsel for the plaintiffs contained the following representation: I believe the discovery of Brian Conrad would promote the just, speedy, and inexpensive resolution of this proceeding because he was District Captain on duty the morning of the fire and he had command responsibility for all of the individual firefighters involved. An interview is not a sufficient alternative to discovery because his evidence is required under oath. Issue: Should the non-party discovery subpoena of Brian Conrad be revoked? Submissions: Position of the defendant HRM [15] The defendant HRM submits that the discovery of Mr. Conrad is neither useful nor necessary for the plaintiffs to advance their claim as he is a peripheral witness, and his involvement has no bearing on the issues which are relevant to the determination of the allegation of gross negligence. [16] In reference to the rules, the defendant HRM says that his discovery will not result in a “just, speedy and inexpensive resolution of these proceedings”. [17] In particular, the defendant HRM submits that the assessment of whether or not issuance of a discovery subpoena for Brian Conrad promotes the "just, speedy and inexpensive determination of the proceeding" must take into account the context of what has transpired to date in this litigation. [18] The defendant HRM submits as context: (a) That the plaintiffs have utilized the litigation process as a fishing expedition. (b) That in their pleadings the plaintiffs allege eighteen varieties of negligent action or conduct. (c) The plaintiffs have requested "massive" documentation, discovered nineteen witnesses and made one hundred eighty one requests for information and documentation from the HRFES designated manager. (d) They submit they have made eight witnesses available who are most directly involved in the events of April 29th and 30th, 2009. (e) That Mr. Conrad, as district captain, only held command for "a matter of minutes". (f) That the role of a district captain at a fire scene is primarily that of a safety officer. [19] The defendant HRM summarizes their position at para. 94 of their pre-trial submission as follows: 94. Accordingly, the Defendants submit that not only was District Captain Conrad's involvement in the operational aspects of the occurrence short-lived, by the time he assumed command, the fire had already been raging along the east side of the MacIntosh Run with no means of stopping it through ground fire attack of HRFES crews. In other words, District Captain Conrad's evidence will not involve issues which are relevant to determination of the allegations of gross negligence found in the Statement of Claim and will not be "crucial", or in any way significant to the Plaintiffs' ability to advance their case. There is no undue prejudice to the Plaintiffs in preventing them from taking discovery of Brian Conrad in the specific circumstances of this case. [20] And further at para. 99: 99. Accordingly, when the request for discovery of Brian Conrad is considered in conjunction with the multiple discoveries which the Plaintiffs have already conducted of HRM/HRFES witnesses and AGNS witnesses, and the volume of evidence which has been generated over 33 days of discovery and thousands of pages of documentation, together with the additional discoveries which the Plaintiffs have expressed an intention to pursue, the result will be an unwarranted burden on these Defendants in terms of exorbitant expense and delay, entirely out of proportion to any possible benefit to the Plaintiffs if these discoveries are permitted. This is exactly what the new Rules are intended to prevent. [21] The defendant HRM submit there are other reasonable means for obtaining the information sought, other than the discovery of Mr. Conrad. [22] HRM says that the discovery of its designated manager provided the necessary information that Mr. Conrad could provide, including a discussion of district captains and their involvement in woodland fires. [23] Moreover, HRM submits that counsel for the plaintiffs made a number of requests from one of its witnesses to direct inquiry to Brian Conrad for factual information pertaining to various aspects of his involvement. HRM also argue that the designated manager gave numerous undertakings, most of which will be fulfilled with the passage of time. [24] For all of these reasons the defendant HRM seeks revocation of the non-party subpoena issued to Brian Conrad. The Plaintiffs’ Position [25] The plaintiffs say that Mr. Conrad’s evidence is highly relevant. He attended at the scene of the fire on April 30, 2009 and assumed command from Captain Brackett. [26] They say that Mr. Conrad is one of several critical witnesses whose viva voce evidence will ultimately be required at trial, as he was an eye witness to events unfolding before him, there are no other means to obtain his evidence, and his evidence should not be required to be given through another person. Analysis [27] There are two reported cases dealing with Rule 18.05. The most relevant is Roué v. Nova Scotia, 2013 NSSC 326, [2013] NSJ No. 579. In Roué, Rosinski J. considered whether a subpoena should be issued requiring the attendance of an employee of the defendant at a discovery. Justice Rosinski provided some commentary on the question of determining whether the discovery of a particular individual would promote the “just, speedy and inexpensive resolution of an action”. Commencing at para. 47 of the decision, Rosinski J. stated: 47 …generally, a party seeking issuance of a Discovery Subpoena should establish that, in a case such as the one at Bar where Affidavits have been filed in advance of discoveries, there is a realistic possibility or "arguable grounds" that the discovery of an affiant will likely lead to relevant evidence or produce information that is likely to lead to relevant evidence (see "Scope of Discovery -- CPR 18.13). 48 I use the "realistic possibility" or "arguable grounds" standard because the nature and quality of the information or evidence obtainable by issuing a discovery subpoena is not precisely known. … 50 …in considering whether issuing the Discovery Subpoena would tend to promote the just, speedy and inexpensive resolution of the proceeding, Courts will balance those relevant factors that favour the issuance, and factors that do not favour the issuance, of the Discovery Subpoena. [28] As to the balancing of relevant factors Rosinski J. commented: 56 Bearing in mind the overall consideration that the Court should seek to act in that way that is most likely "to promote the just, speedy and inexpensive resolution of the proceeding", I ask myself firstly whether there is a realistic possibility that the discovery of Ben Millson will likely lead to relevant evidence or produce information that is likely to lead to relevant evidence? Surely it could. 57 But much will turn on an assessment of the nature and quality of the evidence that might be forthcoming from Marius Lengkeek as a designated Discovery Manager, and as one of two affiants who will testify on behalf of Lengkeek Vessel Engineering Inc. -- the other being Ben Millson. I ask myself, in order to make an assessment as best I can, based on the limited insight I have at this stage, whether there are discovery questions likely to be asked of Marius Lengkeek , which would "better" be answered by Ben Millson? I use the descriptor "better" as shorthand for a positive finding that the nature or quality of the information/evidence likely forthcoming from an individual in issue will specifically, and generally the requested discovery will, "promote the just, speedy and inexpensive resolution" of the proceeding. 58 I should point out that I do not wish to be taken to have said that Lengkeek and Millson cannot be asked the same questions if discovery of both is permitted, provided the parameters of CPR 18.13 are respected. 59 I bear in mind that one of the purposes of having a designated Discovery Manager is to avoid a plethora of minor witnesses being called on discovery. Such designations are intended to provide efficiency in the litigation process. Doing so can result however in lesser quality of information/evidence to the discovering party, for example: while the answers of the Discovery Manager bind the corporate party, they do not necessarily bind individual witnesses like Ben Millson who may testify at a hearing and who would testify from first-hand knowledge; or if undertakings need to be given by the Discovery Manager, which then create delays in the proceedings, etc. 60 In my view, Marius Lengkeek's role in Lengkeek Vessel Engineering Inc. and the restoration of the Bluenose II is much broader than Ben Millson's role, with the result that Mr. Lengkeek's discovery is likely to generate many more undertakings in response to discovery questions, than is Ben Millson's discovery. 61 Therefore, in part to preserve the timelines herein, I would prefer to err on the side of authorizing issuance of a Discovery Subpoena for Ben Millson, rather than unreasonably taking a chance that Marius Lengkeek, as designated Discovery Manager, may have to make numerous undertakings to get answers to discovery questions, which would likely come from Ben Millson, the only other designer materially involved in the design and reconstruction of the Bluenose II... … 63 Information or evidence that bears significantly on the credibility of key witnesses, where credibility is very much in issue, should generally favour discovery, even if their discovery could generate information/evidence that is otherwise not necessarily directed to obvious substantive issues of interest in the litigation. [29] From these comments and from a review of the relevant Rules, I am satisfied a discovery subpoena should issue where: (a) the evidence of the witness has a realistic possibility of leading to relevant evidence; (b) the witness is in a “better” position to respond to questions than would be the designated discovery manager; (c) if the answers on discovery bind only the corporate party, and not the witness, it is preferable to have the discovery evidence of the witness; (d) if the asking of questions from the designated manager necessitate undertakings which will delay the proceedings, the discovery of the witness should proceed. [30] I am satisfied that Brian Conrad would have relevant evidence to offer, including his observations made at the scene when he attended the site on April 30, 2009. I emphasize that Mr. Conrad is not a “minor witness” whose discovery may be made unnecessary by discovery of the discovery manager or other employees of the defendant HRM. In my view he is a key witness who observed the events as they unfolded on April 30, 2009. [31] The relevance of Mr. Conrad’s evidence must be considered in the context of the nature of the actions before me. The plaintiffs are seeking to establish gross negligence based on a series of negligent acts. The actions of Mr. Conrad as one of the fire captains on April 30, 2009 is highly relevant as to whether or not the defendants should be held liable for the losses suffered by the plaintiffs. It must be remembered that on the very day of the fire, which is the subject of these proceedings, he was at the scene and had assumed command albeit only for a short period. I am satisfied that he is in the best position to answer questions as to his observations during that time, rather than the designated discovery manager. [32] Rule 18.24 provides specific examples of circumstances where the holding of discovery would promote the “just, speedy and inexpensive resolution of proceedings”. The provision in Rule18.24(a) and (b) is as follows: (a) a non-party witness has information properly obtained by discovery and there are no other reasonable means for obtaining the information, such as conducting an interview; (b) a designated manager was ill-informed on discovery and discovery of other corporate officers or employees is necessary to obtain information the designated manager should have provided; [33] I am satisfied that there are no other reasonable means to obtain the information from Mr. Conrad. I am not satisfied that an interview would suffice, as Mr. Conrad’s evidence is key, being one of the fire captains on scene on the day of the fire which gives rise to these proceedings. [34] Despite the able arguments of the defendants, I think it is unreasonable to suggest that an eye witness such as Mr. Conrad, who clearly has relevant evidence crucial to this proceeding, be required to give his evidence through the designated manager or others. It is only Mr. Conrad who, based on his observations, can provide relevant evidence as to his involvement and observations on April 30, 2009. [35] I am not satisfied that, as the defendant HRM maintains the volume of discoveries completed to date should have a substantial impact on whether or not Mr. Conrad is discovered. Many individuals on that date were involved in fire suppression, and virtually all of the persons discovered to date have been discovered by consent. The approach taken by the plaintiffs to prove gross negligence necessarily involves the discovery of those involved in the fire suppression activities on April 29 and 30, 2009, which allegedly led to gross negligence. [36] I am not satisfied based on the materials before me that the plaintiffs are on a “fishing expedition”. [37] Mr. Conrad is not a minor witness. The appointment of a designated manager, in my view, is meant to make unnecessary the calling of minor witnesses who have information that can be provided by a designated manager. [38] On the contrary, Mr. Conrad, although a non-party witness at this time, has possibly relevant information about the matters in issue, and I am satisfied that there is no other reasonable means to secure that information than by discovery. By allowing the discovery of Mr. Conrad to proceed, I am satisfied that it would provide for the “just, speedy and inexpensive determination” of this matter. [39] The application by the defendant HRM is dismissed. Costs under Tariff C are between $1000 and $2000, as the hearing went more than half a day, but less than one day. I award costs to the plaintiffs in the amount of $1500, but deduct from that amount $500 as a portion of the hearing dealt with the affidavit filed by the plaintiffs’ counsel and the defendant HRM was successful in having many of the paragraphs struck in whole or in part. [40] In summary, the application by the defendant HRM is dismissed with costs to the plaintiff in the amount of $1000. Pickup, J.