Scotian Materials Ltd. v. Nova Scotia (Environment)

Scotian Materials Ltd. v. Nova Scotia (Environment) Court Supreme Court Date 2016-03-25 Citation 2016 NSSC 62 Docket Hfx 445978 Judge/Registrar/Adjudicator Murray, Patrick J. (Honourable Justice) Document Type Decision Relations Library Sheet - Scotian Materials Ltd. v. Nova Scotia (Environment) - 2016 NSSC 62 - 2016-03-25 - Library Sheet Decision Content SUPREME COURT OF Nova Scotia Citation: Scotian Materials Ltd. v. Nova Scotia (Environment), 2016 NSSC 62 Date: 20150225 Docket: Hfx. No. 445978 Registry: Halifax Between: Scotian Materials Limited Appellant v. Minister of Environment for the Province of Nova Scotia Respondent Judge: The Honourable Justice Patrick J. Murray Heard: February 18, 2016, in Halifax, Nova Scotia Oral Decision: February 25, 2016 Counsel: Peter M. Rogers, QC, for the Appellant, Scotian Materials Limited Paul B. Miller, for the Appellants, Shubenacadie Watershed Environmental Protection Society, and Stacey Lee Rudderham and Dwight Ira Isenor Alison Campbell, for the Respondent Minister of Environment Robert Grant, QC, for the Halifax International Airport Authority, Intervenor By the Court: Introduction [1] This is a motion to introduce fresh evidence on an appeal. The Appellant, Scotian Materials Limited, (Scotian), is appealing a decision of the Minister of Environment for the Province of Nova Scotia, (Minister), cancelling the industrial approval for the operation of a quarry and associated works at Goffs, Halifax Regional Municipality, Nova Scotia. [2] Scotian argues it had little or no notice of the Minister’s decision and pleads a breach of natural justice. They did not know what evidence would be relevant to the Minister’s decision and now fresh evidence is needed to supplement the record for the appeal. While acknowledging the general rule that admitting fresh evidence on an appeal is the exception, Scotian submits the new evidence meets the test for admission. [3] The Respondent Minister, argues that the record should simply remain as it was before the Minister when he made his decision and the motion should be denied. Moreover, the motion should be denied because the evidence contained in the affidavit is already contained in the record. [4] The Minister submits that Mr. MacPherson’s affidavit is nothing more than “an extraneous narration of what is already contained in the record”. [5] The Minister submits that the Appellant has not met the test for the introduction of fresh evidence, and that the introduction is something which Courts exercise sparingly on appeal. [6] It is not appropriate for this Court to decide the merits of the appeal. Pursuant to Civil Procedure Rule 7.10(g), a motion to determine the record shall be made at the same time as the motion for directions. This was the case here. [7] Some assessment and consideration of the grounds of appeal however is necessary to determine if the evidence is relevant and admissible. The criteria for the admission of fresh evidence is as set out in the leading case of Palmer v. The Queen, [1980] 1 S.C.R. 759 and recently by our Court of Appeal in Patient X v. College of Physicians and Surgeons of Nova Scotia, 2015 NSCA 41. [8] It is common ground between the parties that where the rules of natural justice are concerned, evidence may be admitted to add to the record where the circumstances warrant. The Appellant says the present circumstances warrant the admission of the affidavit of Robert MacPherson on behalf of the Appellant. [9] The Minister argues the opposite, that admission is not warranted, in these circumstances. Issue [10] The sole issue to be determined on this motion is, should the affidavit of the Appellant’s representative be admitted to supplement the record for the purposes of the appeal scheduled for April 4 and 5, 2016? [11] With this background I turn to discuss the law. The Law [12] As stated, some assessment of the Appellant’s grounds of appeal is required in order for me to determine the motion to admit fresh evidence. Evidence related to a denial of natural justice, as is alleged here, is one of the exceptions to the general principle that the admission of affidavits on appeal is exceptional. [13] The Appellant relies on IMP Group International Inc. v. Nova Scotia (Attorney General), 2013 NSSC 322, for authority that fresh evidence may be admitted in situations where bias, fraud or jurisdiction is at issue. [14] The juris prudence is clear that where a breach of natural justice is alleged in the grounds, fresh evidence can be admissible to demonstrate a denial of natural justice. Such evidence must be relevant and is admissible for the limited purpose of showing for example a lack of jurisdiction or a denial of natural justice. [15] In those instances, fresh evidence can be introduced to establish the grounds of appeal. Further, in cases where the error alleged is on the face of the record fresh evidence is not admissible unless the affidavits show the record to be incomplete. (Canada Life Assurance Co. v. Nova Scotia( Minister of Municipal Affairs) (1996),150 N.S.R. (2nd) 360); (IMP at paragraph 41 in reference to the Waverly principle. Waverly (Village Commissioners) v. Kerr, (1994), 129 NSR (2d) 289 (C.A.) [16] The Minister states it is important to recognize that the power to admit such evidence must be used sparingly. Judicial review is traditionally conducted on the record. The general rule does not favour admission of evidence that was not before the tribunal. Fresh evidence on the merits is generally not permitted. [17] The Minister argues that admitting the evidence is an invitation for a trial de novo. There is also the concern that if admitted, the evidence is entered essentially unchallenged. As a result, the Minister submits the affidavit evidence ought not to be admitted. The Minister says, the Appellant is seeking to alter the record by challenging the facts relied upon by the Minister. The Minister says record should remain as it was before the Minister without being altered. [18] These arguments of the Minister are compelling. [19] The Minister further argues the principle referred to in the IMP, citing White v. Alberta (Workers’ Compensation Board, Appeals Commission), 2006 ABQB 359. At paragraph 42 of IMP the court stated: 42. Affidavits are not generally permitted to show that a different decision would have been better than the one made. [20] The Appellant submits that while IMP was a judicial review case, it held that the same considerations apply in respect of a statutory appeal. Further at paragraph 42 of, the court stated: 42. Assuming that fresh evidence would occasionally be admitted on an application for judicial review, it would likely be subject to the same test as fresh evidence on appeal. The use of affidavit evidence on judicial review is exceptional. They can be introduced when they are needed to establish the grounds for the application, but not when they are intended to alter or supplement the factual record used by the tribunal to decide the issue on the merits... [21] With these principles in mind I have considered other authorities submitted by counsel for the parties. In this regard I have found the case of TG v. Nova Scotia (Minister of Community Services), 2012 NSCA 43, to be instructive. [22] In TG, Fichaud, JA, provided a clear explanation of the application of the test in the leading case of Palmer. Further he discussed the application of the test in cases where the “process” involved in the decision is being challenged or is in issue. [23] I equate “process” to natural justice and the manner in which the decision under appeal was reached. Natural justice, is being argued here by the Appellant. In TG, the court stated at paragraphs 77 – 79 as follows: [77] Moving to the fresh evidence motion itself, the test stems from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. Admission is governed by four factors: (1) whether there was due diligence in the effort to adduce the evidence at trial; (2) relevance to the issue at trial; (3) credibility of the new evidence; (4) whether the evidence could reasonably have affected the result. The test applies to civil as well as criminal cases: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2 (CanLII), [2000] 1 S.C.R. 44, para 8; United States of America v. Shulman, 2001 SCC 21 (CanLII), [2001] 1 S.C.R. 616, para 44; May v. Ferndale Institution, 2005 SCC 82 (CanLII), [2005] 3 S.C.R. 809, para 107. [78] The evidence must be in admissible form. If it is inadmissible, obviously it could not affect the result under Palmer’s fourth criterion. R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, per Dickson, J. at page 602; R. v. Dell, 2005 CanLII 5667 (ON CA), [2005] O.J. 863 (C.A.), per Sharpe, J.A., at para 85; R. v. Kelly, 1999 CanLII 13120 (NB CA), [1999] N.B.J. No. 98 (C.A.), at para 71; R. v. Assoun, 2006 NSCA 47 (CanLII), para 302. A motion to admit fresh evidence isn’t just a generic preview of the type of evidence that would be offered, in admissible form, at a future new trial. [79] The four-branched Palmer test applies to issues that were decided at the trial that is under appeal. When the fresh evidence relates to the process of the tribunal whose decision is appealed, Palmer’s criteria recede and are replaced by a test that asks whether the evidence is “credible and sufficient, if uncontradicted, to justify the appellate court making the order sought”: R. v. Wolkins, 2005 NSCA 2 (CanLII), at para 61, per Cromwell, J.A.. See also R. v. Assoun, paras 297, 316, and cases there cited. [24] In TG the fresh evidence being tendered was in respect of an issue “decided” at trial, namely the reasons under appeal. The Palmer test therefore applied. [25] There is also the case of Islam v. The Nova Scotia Human Rights Commissions, 2012 NSSC 67, where the court ruled the applicant was denied procedural fairness by not being given an opportunity to respond to his opponents submissions. By not being provided with this opportunity the applicant argued he was denied the ability to respond to any issues that would assist the Commission in its determination and therefore the record was compromised and incomplete. [26] The court in Islam held that while the tribunal was free to determine its own procedures, those procedures must meet minimal standards of procedural fairness. The court was not satisfied that denying the right of reply in the circumstances accorded with the standard of procedural fairness. [27] In IMP, the court referred to a case entitled Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment), 2013 ONCA 310. In that case fuel oil spilled onto the property of the appellant Municipality after a spill on a neighbouring private property. The appellant was ordered by the Ministry of the Environment to remediate the effects of the oil spill on its property. The initial appeal by the appellant was by way of trial de novo to the Environmental Review Tribunal. [28] The tribunal refused to allow fresh evidence to be introduced to show that other involved parties were at fault for the spill. The tribunal held that fault was irrelevant to their task of determining whether the legislation’s purpose and objective of environmental protection had been met. [29] The appellant appealed the ruling to the Ontario Court of Appeal. The appellant argued on appeal that the procedural order excluding evidence denied it natural justice and prevented it from fully making its case, that it should be relieved of the director’s order because it was not at fault for the spill. [30] The Court of Appeal in Kawartha found that the question turned entirely on whether the evidence was relevant. The court held that fault was not in issue. The case did not turn on who was at fault but whether the person ordered to remediate the property had complied with the purpose of the legislation which was protection of the environment. [31] The evidence therefore was not admitted. [32] The Minister argues that a similar situation exists here. Whether there was a name change from Northern Construction Enterprises Inc. to Scotian does not matter. The Minister’s decision that Scotian was a new applicant is a finding of fact that cannot be challenged by evidence that was not before the Minister. [33] The Minister further argues the finding that the Applicant did not undertake a consultation process is a finding of fact, stating that fresh evidence, cannot be introduced to challenge findings of fact. The Minister submits new evidence can be admitted only when there is no evidence to support the findings. That is not the case here argues the Respondent, Minister. Analysis [34] I find the circumstances here similar to what Fichaud, J.A. described in TG as “process”. The Appellant argues the purpose of the affidavit evidence is to demonstrate a violation of procedural fairness and natural justice in the Minister’s decision making process. [35] In paragraph 20 of its brief the Appellant submits as follows: 20. The affidavit contains clear and highly germane evidence that Scotian Materials was never shown the appeal documents or given information that the Minister might cancel the approval on a basis relating to alleged inadequacy of consultation arising from a corporate name change or a technicality of no interest to the public relating to related by different “Northern Construction” companies having been involved in the history of the quarries. [36] The Appellant therefore argues that the evidence could not have been previously adduced due to a lack of knowledge that the Minister considered it material. [37] In IMP at paragraph 46 the court in referring the case of Brar v. College of Veterinarians of British Columbia, 2011 BCSC 215, cited its own decision in Nechako Environmental Coalition v, British Columbia (Minister of Environment, Lands and Parks), [1997] BCJ No. 1790 (SC), stating at para.46: [w]here the existence of relevant documents is known, the Court will not deprive itself of access thereto if there is no other bar to their production. [38] This Court is cognizant of the risk of a trial de novo on the merits in admitting new evidence. For example, in paragraph 11 of its brief the Appellant argues that the affidavit is also intended to show that the Minister erred in fact or in law or both. [39] These arguments in my view, are submissions that should be made at the appeal hearing itself. I turn now to my decision on the motion. In doing so I am reminded of the principle that the Court’s power to admit evidence beyond the record of a proceeding must be exercised sparingly and only in exceptional cases. Decision: [40] Having carefully considered the oral submissions and written briefs I have decided to admit some but not all of the paragraphs in Mr. MacPherson’s affidavit. I am not going to belabour my reasons, but will explain in a summary way my decision as follows: [41] Paragraphs 1 through 4 are in my view introductory and contain the proper averments for an affidavit. The fact that Mr. MacPherson is the President of Scotian is in the record. When he became President may be less obvious, but it speaks to his authority to give affidavit evidence at the relevant time. I am therefore going to admit these paragraphs to inform the record. I note the Minister has said paragraph 4 is not in dispute. [42] Paragraph 5 is essentially a summary of the Minister’s decision which is contained both in the record at Tab 38, and in the Notice of Appeal at Tab A. It is therefore not necessary to supplement or complete the record. [43] Paragraph 6 summarizes those who filed appeals to the Minister with respect to the Administrator’s approval. Copies of these appeals are contained in the record as the paragraph itself states. The paragraph in fact identifies the Tabs in the record where these can be found, Tabs 27, and 29 - 32. I shall rule on paragraph 6 and 7 together. [44] Paragraph 7, in my view clearly deals with “process”. The opening sentence speaks to a lack of notice of the appeals and the closing sentence states the Appellant was not given an opportunity to respond to what it says was the cancellation of the Industrial Approval. As stated in the case law such evidence may be admitted for the limited purpose of showing a denial of natural justice. [45] The Minister argued it is apparent on the face of the record there was no notice and is therefore not necessary to add to the record, stating the lack of notice is not disputed. The Appellant states it went a step further and confirmed in fact, there was no notice. [46] For the reasons stated, I believe the Appellant is entitled to take that extra step, on the basis that it is not only admissible but is necessary, as it concerns natural justice. I am therefore going to admit paragraph 7. [47] Paragraph 6 would ordinarily not be admitted, as the information can be found in the record. I am however going to admit it as an introductory paragraph to paragraph 7. Paragraph 6 goes hand in hand with paragraph 7. I see little harm or prejudice in admitting it. At worst admitting paragraph 6 is repetitive. [48] Paragraph 8, I am not going to admit, because it adds nothing to what is already contained in the record, and in particular the Minister’s letter of November 3, 2015. [49] Paragraph 9, while acknowledging paragraph 9 is a substantive paragraph, I am not going to admit it. While it could clearly be relevant on appeal, I am satisfied that the facts referenced in paragraph 9 are contained, in the record as the paragraph itself states. [50] Paragraph 10, as has been stated by the Minister, does contain new evidence, providing as it does an explanation for the Northern Group of Companies and an affiliate company. [51] The Minister argues that by including paragraph 10, the Appellant is trying to alter the record. The Appellant is trying to show the Minister made a factual error. In its brief at paragraph 27 the Minister argues that findings of fact cannot be challenged with evidence that was not before the “tribunal” or in this case the Minister. [52] Having considered this argument it seems to me that the Appellant is not so much challenging the finding of fact, that Scotia is a different company, as they are the use that was made of that fact by the Minister in reaching his decision. [53] I am persuaded by the Appellant’s argument that it did not know what evidence the Minister considered material. There is a “process” component to this argument. The test in TG at paragraph 79 asks if the evidence is credible and sufficient to justify the appellate court making the order sought on appeal. [54] Further, the relationship between these companies is not apparent on the face of the record. The introduction of paragraph 10 in my view, is needed to complete the record and to provide necessary context. I have therefore decided to admit it. [55] Paragraph 11, I am not going to admit as the statement of whether the Golder Report is accurate is in the nature of a submission. The public consultation history is contained in the record. It should stand on its own, and speak for itself. [56] For similar reasons I am not going to admit paragraph 17. I find it is also in the nature of a submission. The information in Paragraph 17 is included in paragraph 18. Paragraph 11 and 17 contain statements similar to paragraph 7 which I admitted. The difference is that paragraph 7 goes clearly to the natural justice argument whereas paragraphs 11 and 17 go to prove a fact, in addition to being a submission. I am not satisfied these paragraphs are needed to complete the record. [57] Paragraph 18, I have decided to admit for reasons similar to those for admitting paragraph 7. The Appellant is attempting to establish that there are valid reasons for their concern that there has been a want of natural justice. That will be up to the appeal court, but the Appellant should be given the opportunity to make the argument. [58] The Appellant seeks to admit paragraph’s 19, 20 and Exhibit “A”. Exhibit “A” is a letter dated December 21, 2015 sent to Mr. MacPherson by Ms. MacLeod, P. Eng. of Nova Scotia Environment. This letter is in response to a request by the Appellant regarding the consultation process for a new application recently made. [59] Scotian argues there is nothing in the record that speaks to the Minister’s power to delegate and the scope of authority given to an Administrator, as contained in section 17 of the Environment Act, 1994-95, c. 1, s. 1. [60] The Appellant argues these paragraphs deal fundamentally with jurisdiction. Jurisdiction however was not the thrust of the Appellant’s submission. The Minister submits this letter was written after the Minister’s decision, when the person holding the post of the Minister had changed. [61] In Canada Life, the issue before the court was whether to admit correspondence written after the Minister’s approval in that case. The Appeal Court ruled that the letters could not be categorized as reasons for the Minister’s decision. The court held that correspondence by a decision maker should form part of the record in response to a request for additional reasons. The court held the letters were not written for that purpose. [62] The letter here was also after the fact and is in response to a separate application made subsequent to the Minister’s decision. The letter does not constitute the reasons for the Minister’s decision under appeal. [63] In the result, I concur with the Respondent. The fact that there was a new application is not relevant to whether the Minister erred in a decision on a previous application. [64] As I have stated, in respect of other paragraphs, the relevance of the fresh evidence is a criteria for its admission together with other criteria. [65] I have therefore decided not to admit paragraphs 19, 20 and Exhibit “A”. [66] The remaining paragraphs, which are 12-16, in my view deal with evidence already contained in the record, and shall not be admitted. Conclusion [67] The Appellant has submitted that Mr. MacPherson’s affidavit, at 20 paragraphs, and one exhibit is a modest one compared to the entire record. As counsel are aware the law does not favour admission of evidence going to the merits unless the record is shown to be incomplete. Natural justice and other procedural grounds such as bias and jurisdiction are exceptions. This applies to paragraphs 7 and 18 which I have admitted. Paragraph 10 I believe, is information that would inform the record for the decision maker on appeal. Paragraphs 1 to 4 and paragraph 6 contain either introductory paragraphs or matters not in dispute. The remainder of the paragraphs (12 - 16) deal with evidence already in the record. Those paragraphs I have not admitted. [68] Due to the partial success of the Appellant’s motion, costs in the amount of $500.00 are awarded to Scotian, payable in the cause. Murray, J.