Halifax (Regional Municipality Pension Committee) v. State Street Global Advisors Ltd.

Halifax (Regional Municipality Pension Committee) v. State Street Global Advisors Ltd. Court Supreme Court Date 2012-03-12 Citation 2012 NSSC 160 Docket Hfx 309063 Judge/Registrar/Adjudicator Duncan, Patrick J. (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Halifax (Regional Municipality Pension Committee) v. State Street Global Advisors Ltd., 2012 NSSC 160 Date: 20120312 Docket: Hfx. No. 309063 Registry: Halifax Between: The Halifax Regional Municipality Pension Committee Plaintiff v. State Street Bank and Trust Company and State Street Global Advisors Ltd./Conseillers En Gestion Global State Street, Ltée Defendant _________________________________________________________________ Decision re: Defendant’s Motion to Adjourn Summary Judgment Motion Hearing _________________________________________________________________ Judge: The Honourable Justice Patrick J. Duncan Heard: March 12, 2012, in Halifax, Nova Scotia Written Decision: April 24, 2012 Counsel: George MacDonald, Q.C., Jane O’Neill, and Peter Rogers, Q,C, for the plaintiff Michael Ryan, Q.C. John Keith, Christopher Zimmerman, Andrea Robinson, and Michael Dube for the defendants By the Court: (Orally) [1] This is a motion that has been brought by the defendants seeking to adjourn a hearing of a Summary Judgment motion brought by the plaintiff, which hearing is scheduled to be heard on March 29 and 30, 2012. [2] The motion has been brought in accordance with the authorities relied upon by the defendants as Rules 2.03 (General Judicial Discretion) , 22.18 (Adjournment) and 26 (Case Management). I have been provided with the affidavits of Amy Blue in support of the motion to adjourn as well, as indicated earlier, the various correspondence of counsel and the transcript of the hearing held on January 26, 2012. I, as well, have now had an opportunity to look very quickly at the written submissions of the defendants that they filed on March 9, which was intended as their response to the Summary Judgment motion. I will say in particular that I have read carefully “Issue 6", which is the portion that deals with the plaintiff’s “consent and ratification” issue and which, now that I have read it, restates in some detail the complaints that the defendant has with being pushed to respond to a Summary Judgment motion in the absence of complete disclosure by the plaintiff. [3] The underlying motion brought by the plaintiff that has triggered today’s proceeding is one pursuant to Rule 13.04 seeking summary judgment on evidence. It is common ground and understood by the parties that the law is that the respondent to the motion is required to put their best foot forward in response. [4] The defendants say that they are unable to do so because the plaintiff has not met its obligation to provide complete disclosure or production, specifically by the date of February 29, 2012, which had been the date that I had previously set when arriving at a schedule for the various steps of the litigation to be undertaken in order to allow for the March 29, 2012 hearing to proceed. [5] The defendants argue that in the absence of that disclosure their ability to respond has been substantively prejudiced. There is a letter on file that the plaintiff’s counsel sent to the defendants’ counsel, dated February 14, 2012, saying that it was not able to complete its disclosure until at least March 22, 2012. Even at that point the defendants were taking the position that March 22 would not have permitted it adequate opportunity to review the materials that it expected to receive from the plaintiff and to make the necessary assessments as to how it might impact, if at all, on the summary judgment motion. [6] Now based on the submissions of Mr. Rogers, it appears quite evident that the March 22 date cannot be satisfied either, and indeed Mr. Rogers candidly acknowledges that given the difficulties that he is encountering with getting production of HRM mailboxes that he can’t even say confidently at what date he will know the date by which disclosure would be complete. [7] In its submissions of February 24, 2012, the defendants outlined five deficiencies that it found in the plaintiff’s production and it has elaborated on those and what it says is significant to their ability to put their best foot forward. [8] The motion for Summary Judgment in this case is potentially determinative of liability in what has already been observed, repeatedly, to be a complex piece of litigation for both parties. The backdrop to the motion, I think, has been properly characterized in that while there is no obstacle under Rule 13 for the plaintiff to bring the motion for summary judgment at any time, the defendants respond that it has to yield and it has not been phrased this way, but that it has to yield to the Rule 14.08 presumption that disclosure or production would be complete. [9] So that, to some extent, creates the tension between the parties. You can bring a Summary Judgment motion anytime, but disclosure is presumed to have been completed, although nothing in the Rules says that production has to be complete before the Summary Judgment motion is heard. That is the essence of the dispute that I have to resolve. [10] So, the question in my mind became one of perhaps not just an issue of how it plays out on the facts of this case, but trying to adopt a more principled approach that would have broader application to these types of concerns. It is, suffice to say, an entitlement of the defendant to production and that the law has always recognized that there is a right to make full answer and defence. [11] In my view, it is not appropriate to permit a plaintiff to decide for the defendant what use, if any, could be put to materials yet to be disclosed. This would be an unacceptable proposition if the materials were already in the hands of plaintiff’s counsel but not yet disclosed to the defendants’ counsel. In the circumstances of this case, the plaintiff’s counsel themselves don’t have all of the materials that it is seeking and that it understands it will need to review for relevance and possible production. For either party at this time to suggest that there is nothing of use or relevance to the Summary Judgment motion is one of speculation for either party. Each are responding to what they think may or, in the case of the plaintiff, may not exist. [12] I will comment in a moment on the question of what probabilities there are of finding something that may be germane and how that should impact on the decision today. [13] I will say as an aside that the defendants say that they have met their disclosure obligations, while of course pointing out that the plaintiff has not. Frankly, in the circumstances of this case, the fact that the defendant has met its disclosure obligation is not determinative of my decision. [14] In my view, the circumstances here do trigger a consideration of fairness. I do not accept the plaintiff’s argument that there is a burden on the defendants to show relevance or materiality to the Summary Judgment motion, of materials that neither plaintiff nor defence counsel have seen. It may be true, and I’ll concede this, it may be true that past disclosures are an accurate predictor of future disclosures. But that does not address the more fundamental concern of the right for the defendants to make full answer and defence which necessarily, in my view, implies the need to have that material disclosed first. [15] Both parties have pointed me to arguments tending to maximize criticism for the others’ compliance with disclosure obligations and that minimize their own problems with disclosure. I will qualify that by saying I do not think Mr. Rogers has minimized at all the problems that he is having with HRM. There has been, not surprisingly in this kind of a case, concerns expressed by both parties with what’s happening with the progress of production. [16] In my view, again, these debates are tangential to what I see as a fundamental right of the defendants. To recast the problem, I would consider it this way: the defendants, if this plays out the way the plaintiff suggests, the defendants could have judgment entered on the merits, although the plaintiff has not completed its own, or complied with its own production obligations required under our Civil Procedure Rules. To my mind that is an untenable proposition. It would set a precedent that I would think could cause justifiable concerns in the litigation bar if it was seen that this could happen. It’s not to say that Summary Judgment motions cannot proceed until production is complete, but in this case it says to me that there are real dangers present if that becomes the practice. [17] The plaintiff has reported to the court at some length on its efforts to meet production and disclosure obligations. I am satisfied that those problems they have encountered are real and legitimate ones. I have no reason to believe that anything except the best efforts are being made to fulfill its obligation. [18] I have a motion before me as well from the plaintiff seeking to extend the time by which their production obligation must be fulfilled. I’ll deal with that at the end of my comments. [19] The plaintiff’s counsel has taken issue with the role that its disclosure problems play in whether the Summary Judgment motion could proceed. It says, for example, that there is no air of reality to the proposition that there is undisclosed information that goes to the issue of “consent and ratification”. [20] I said a few moments ago that first of all, it’s not the plaintiff’s decision to determine whether the undisclosed material may be of assistance to the respondent. I have secondly pointed out the fact that we don’t even know what that material is, neither party does. Thirdly, the position put forward by the plaintiff would, to some extent, put a burden on the respondent that I don’t accept exists, i.e., to justify how information they haven’t seen might yet be of assistance to the court and to their position. So, that’s the air of reality concern. [21] The second argument of the plaintiff was the concern for what has been described as the inability or the unreality of expecting perfection in production, which I do think is a very legitimate concern and this case certainly would invite the possibility that that could be a problem. My attention has been drawn to the case of Canada (Attorney General) v. Lameman 2008 SCC 14 where the Supreme Court of Canada spoke to the problem of what is necessary to have before the Summary Judgment Motion Judge. The Court said at para. 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 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. This applies to Aboriginal claims as much as to any others. [22] In my view, the answer to this concern that the plaintiff has advanced is this, that if the plaintiff can get to that point where it can say “I am satisfied that I have met my production obligation,” then it would be very difficult for the defence, or the respondent, I should say, to a Summary Judgment motion to then get up and do what appears to have been done in the Attorney General of Canada case of saying “Well, there might yet be other things out there.” But we’re not in that position here. Until the plaintiff at least can say “I’m satisfied that I have fulfilled my disclosure obligations.” then, I don’t think we’ve gotten to that point yet that the Supreme Court of Canada was concerned about. [23] You can see very easily, and this may ultimately be one of those cases where the plaintiff does everything that it can possibly do to meet production and then the respondents to the Summary Judgment motion come back and say “What if ..., what if ...”? That is a matter that would have to be resolved on the circumstances presented to the court at the time, but you can see that the strength of that argument will diminish as the compliance of the plaintiff with production requirements is satisfied. [24] Another concern advanced by the plaintiff in written material was the delay, the fact that this has been outstanding for some time and what will be the consequence of the granting of the motion to adjourn the Summary Judgment motion. [25] With respect, I would suggest that the delay in this case is not measured by a clock. Rather, it is measured by the steps that have been taken, or are yet to be taken, in the litigation process and which would impact on the fairness of the hearing and the determination of the substantive issues. I am not, and I should not be taken to be seen as minimizing the urgency to the plaintiff Committee to resolve this question. That’s not what I am speaking about. They clearly have a desire, given the quantum of the funds that are involved, to have it addressed as soon as possible. And in fairness to the defendants, it is also something that, notwithstanding the fact that it is a large multinational corporation, it is one of those things that they have to deal with as well in their business. All parties benefit at the end of the day from “closure”, as the popular term says. [26] Having said that, in this case, we’re at a stage where, notwithstanding the time frames that have passed already, where there are still steps that in my view have to be completed before the Summary Judgment motion should go ahead. And so, as you’ve probably drawn from my comments, I am prepared to grant the motion to adjourn the Summary Judgment motion. J.