March 31, 2009

Clarification Decision Released– an “Oliphant” Approach?

Filed under: 1 — ruleswatch @ 5:36 pm

Justice Oliphant has restricted the scope of his earlier decision on standards to make clear that he will use the statutes he cited as broad guideposts at best as the evidence leads him and that he expects that if the Criminal Code is of any assistance it will be on a “trifling basis” at best.

The Commissioner also sought to make it clear that he would use the statutes to ensure that he does not inadvertently use statutory language to characterize the actions of actors the subject of his own inquiry and so avoid running afoul of clear direction from the Supreme Court of Canada.

What may be much more interesting – on an ongoing basis – to lawyers than the ruling’s substantive result, however, is the factors that the Commissioner found and took into account in exercising his authority to respond to the request for clarification of his ruling.

The Commissioner found, that although there is a general rule against a statutory decision-maker revisiting a final decision which it had made within its own jurisdiction, he had such authority. He did consider four factors which led him to conclude that a Commission of Inquiry, at least, was to be less bound than perhaps other authorities might suggest.

Firstly, [para 11] citing SCC authority, (Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848) he concluded that the fact that there is no right of appeal from his decisions (albeit there is the possibility of judicial review) suggests that the idea of having exhausted its authority to make the decision (functus officio) be applied less strictly in a commission context.

Secondly, [para 12] he found this conclusion supported by the proposition that his terms of reference authorized him to adopt procedures he felt efficient to achieve the objects of the inquiry.

Third, [para12] he characterized the decision as “interlocutory” rather than final.

Finally, he noted significantly [para 12] “…I am of the view that no party to this Inquiry or the public interest will be prejudiced by my clarifying the standards ruling.”

This authority may well turn out to be handy. While factors 1 and 3 particularly including the fact that this is a public inquiry were significant to this particular decision, they may be of less importance, and hence less durability compared to the other two in the longer run.

Factors 2, being the general authority to exercise jurisdiction to effectively reach a conclusion, and 4, that the clarification poses no prejudice to either the parties or to the public interest, suggest that they could have potential as the foundation for a more general, future administrative “clarification” test.

The decision is clear and crisp and unadorned. Mercifully, it does not contain a single instance of the use of either of the word, “functional” or “functionalism”. There is not a wisp of a hint of pragmatism.

Perhaps, therefore, in gratitude and quiet homage, if the test applied by this judge in this unlikely context does spread more broadly into Canadian administrative law, we can take a rest from the usual practice of naming an approach after the participants, label it simply “the Oliphant approach,” and be done with.

By the way, odds of a responsible admin law challenge? < 10%; odds of success: negative.


More on the Oliphant Inquiry — Clarification v. Reconsideration

Filed under: 1 — ruleswatch @ 11:08 am

On February 25th the commission released a decision (“Ruling on Standards of Conduct”) directing itself to consider specified statutes and the Criminal Code as setting standards for aspects of its inquiry into the dealings between the former Prime Minister and Mr. Schreiber.

Last Tuesday (March 24,2009) the commission heard counsel on Mr. Mulroney’s efficiently resulting motion for clarification of the Commissioner’s ruling (opponents have described it as an effort for “reconsideration”). Although the commission ruled orally on the motion two days later, it is about to be released when the transcript of the hearing is posted on the Inquiry’s website.

The areas in which the Commssion had ruled outside statutes are to be considered touch on the following points of its mandate:

11. Were these business and financial dealings [Mulroney-Schreiber] appropriate considering the position of Mr. Mulroney as a current or former prime minister and Member of Parliament?

12. Was there appropriate disclosure and reporting of the dealings and payments?

13. Were there ethical rules or guidelines which related to these business and financial dealings? Were they followed?”

The Commissioner’s questioned ruling expressed the available use of the statutes as follows, “I will be informed by these statutes … not for the purpose of assessing criminal or civil liability, but for the purpose of understanding what is considered to be inappropriate conduct.”

The stakes in the decision and the reconsideration are high. Statute law, the Commission found it could consider consists of the Parliament of Canada Act, the Financial Administration Act, the Income Tax and the Criminal Code, as they were at the time of the events giving rise to the Inquiry.

The use of the statutes is said to be contentious because, as an Inquiry, the Commission is strictly precluded from touching upon matters of criminal or civil liability. On the other hand, expressed and explicit standards of conduct at the time are otherwise lacking.

The former Prime Minister’s challenge to the ruling seeks clarification, it says, because among other things, it did not specify the parts of the statutes to be referred to, and drift that the motion says it detects, in the scope of how and to what extent they can be accessed.

One expects the decision to be closed reviewed for the purposes of judicial review.

(With many thanks to Barry McLoughlin, of McLoughlin Media, communications consultants to the Commission for prompt and helpful information on this.)

March 30, 2009

Borderwatch? — Galloway Exclusion Injunction

Filed under: 1 — ruleswatch @ 11:29 am

“Slaw ( has the “eyewitness post” of Omar Ha-Redeye who attended yesterdays Toronto Federal Court injuction application on Government’s refusal to admit U.K. M.P. George Galloway into the country.

Ha-Redeye has Barbara Jackman, counsel to the applicants, noting, ” that in her 30 years of immigration practice she had never seen a case like this, or one which so closely resembled the Supreme Court decision in Roncarelli v. Duplessis…”

Its worth reading.The decision is due about 2:00 Atlantic Time March 30.

UPDATE: The application has been dismissed: “The arguments raised by the applicants are not frivolous or vexatious,” Judge Martineau ruled. “However, a proper factual record and the benefit of full legal argument … are lacking at the present time.” the Globe and Mail reports.

One of the conditions [for he award of an injunction] is called “irreparable harm,” the CBC says, which is — in this case, whether or not the rights of Canadians will be infringed if they don’t get a chance to hear Galloway.”The judge argued because Mr. Galloway is going to broadcast speeches into the cities that Canadians can hear him that way,” said James Clark, a peace activist with Stop the War and one of the organizers of Galloway’s speaking tour. Clark was speaking with CBC’s Newsworld on Monday in Toronto,” the CBC website reports.
The National Post adds that the applicants had argued that hearing the speaker on video is not the same as as hearing the speaker in person. So, the argument apparently went, supported by American case law, the freedom of expression of Canadian audiences would be restricted by a video appearance only. And, that would amount to irreparable harm were the MP not allowed entry.
Mr. Galloway will now be appearing to Canadian audiences by video.


FURTHER UPDATE (WHEW!) : Justice Martineau’s decision is now on the Federal Court Website. (See: Toronto Committee to Stop the War et al v. Minister of Public Safety and Emergency Preparedness et al 2009 FC 26) Albeit satisfied that the applicant had an arguable case to be tried, (the first qualification for injunctive relief, of course), the Court found the application stumbled on irreparable harm (the second test).


Galloway had announced his intention to get his message into Canada, by loudspeaker “over the bridge” (from the USA) if necessary and by video – an announcement made in major news organizations effectively from Vancouver to the east coast of the UK if he should not gain admission. On this, the Court found it could not conclude that were was irreparable harm should the injunction be refused. The American case law on the freedom of expression implications of hearing a speaker in person versus by some medium, referred to in yesterday’s Globe did not make its way into the judgement.


In considering the factual framework for the application, Martineau, J. noted, intriguingly,Moreover, some hearsay evidence upon which the applicants intend to rely, may be invoked to support their claim of external lobbying and political influence leading to the making of the impugned decision, which is alleged to be one made in bad faith and politically motivated.”

March 29, 2009

Of Suicide Missions and the Oliphant Inquiry

Filed under: 1 — ruleswatch @ 8:17 pm
Tags: , , ,
Manitoba Justice Jeffrey Oliphant, sitting as the Commission of Inquiry into aspects of Karlheinz Schreiber’s dealings with former Prime Minister Mulroney is scheduled to begin to take evidence Monday, March 30 (for two days, to start). In the meantime there’s been some interesting tactical sideplay.More visibly a dispute of over a request for clarification or reconsideration of scope of the Inquiry’s use use of criminal and regulatory statutes as standards in assessing the conduct of the actors is before the Commissioner.
But behind this  question as one of the legally more spectacular aspects of the Inquiry’s procedural process is what seems at first a rather strange request on behalf of the Commissioner.

The request and to whom it was made adds a bit of interesting tactical sideplay before the House of Commons’ Standing Committee on Ethics.

Early this month, the Commission approached the Commons Committee. The Committee, you will recall, had conducted its own hearings, under oath and exercising summonsing power on a broad range of the Schreiber affair through often raucous, CPAC-televised hearings last year.

Now, Commission counsel had formally notified the Commons Committee that they were seeking Parliamentary permission to make evidence taken before the Committee available for use before the Commission in its own hearings.

The request immediately raised the issue of parliamentary privilege over the evidence along with the practical ramifications of assurances of parliamentary protection the Committee had given to each witness who had appeared before it.

As anyone who has taken a look at the law on the issue would have told you, at the time of the Commission ‘s request, it had all the markings of a suicide mission.

Just over three years before the Gomery commission had denied former federal Public Works Minister Alfonso Gagliano the opportunity to cross-examine the intrepid Chuck Guite on evidence the latter had given to Public Accounts Committee. Mr. Gagliano’s counsel said they had identified contradiction in the witness’ evidence before the two bodies.

The Commissioner’s ruling was subsequently upheld. In 

Gagliano v. Canada (Attorney General) (F.C.) [2005] 3 F.C. 555) the Court gave an apparently thorough review of the law of parliamentary privilege, starting with the 1682 Bill of Rights and moved forward from there. Included in its analysis was a further set of advice on why it would be wise for Parliamentarians not to seek to begin giving waivers.

So why then would the Commission’s lawyers, no slouches, have made the effort?
The answer appears in the transcript of the Commons’ Committee’s own proceedings for its March 11, 2009 meeting as law clerk and Parliamentary counsel for the House helped committee members work through the question.

He was surprisingly blunt according to the Committee’s transcript. “I might just add, ” Mr. Walsh told the committee, “that I have reason to believe–and I guess it is speculative–that what the commission counsel is trying to do here is get this issue off the table, in effect, so that it doesn’t come up and take up the time of the commission with lawyers arguing about wanting to use parliamentary testimony for purposes of cross-examination. I suspect the commission counsel, in preparing for the start of hearings…wants this issue closed off and dealt with. In anticipation of that, they’ve started this process…”

Who’d a’ thought it?

The Commission of Inquiry into Certain Allegations Respecting Business and Financial Dealings Between Karlheinz Schreiber and the Right Honourable Brian Mulroney. Its proceedings will be televised on CPAC starting 9:30 EDT March 30, 2009.




Occam’s Razor

Filed under: 1 — ruleswatch @ 9:04 am

Occam’s razor is an analytical proposition developed by a 14th century English friar, William of Ockham (Occam): “Entities should not be multiplied unnecessarily.” (The simplest answer is the preferred solution to any problem.) Over time the razor has been filed and stropped into a series of competing alternatives. They include (pick one):The simplest answer is usually/probably/often/sometimes/perhaps could be the best solution to any analytical problem.”

Use at your own risk.

March 26, 2009

Worlds in Collision: Windsor and Toronto (SCC declines Ontario procedural appeal accomodating change of venue order with order to bear travel expenses of opposition)

Filed under: 1 — ruleswatch @ 9:38 pm
The Supreme Court of Canada Visic v. University of Windsor yesterday (March 26, 2009) has rejected leave to appeal where the would-be appellant sought to appeal an order that, having successfully obtained a change of venue in a civil proceeding, the appellant nevertheless bear travel and accommodations expenses to be incurred.*
The decision is useful because it acknowledges flexibility in the applicable Ontario rule to make such an order and because it raises questions of when impecuniosity might influence the terms of such an order. It may also be of interest to those who labour in the vineyard of disability litigation.
Visic, a former University of Windsor law student, sued in Toronto where she lived. The University applied for a change of venue to move the action to Windsor under Ontario Civil Procedure Rule 13.01(2) (b) – which sets up a detailed series of criteria to consider in adjudicating a challenge to the place of trial, the last of which was “(ix) any other relevant matter.”
The court of first instance [Visic v. University of Windsor [2006] O.J. No. 3727] awarded the change of venue on the grounds that the subject matter of the action had arisen in Windsor and the proximity of witnesses favoured it as the place for trial. The decision further provided however, that, because of Visic’s difficult financial circumstances, the university would have to provide her reasonable travel and accommodation expenses for occasions requiring her to be in Windsor.
On application for leave to appeal to the Divisional Court, [ [2006] O.J. No. 4730] the chambers judge on the latter, along with other doubts, questioned the granting of a change of venue conditional on the payment of expenses of the opposing party. He described that disposition as “novel” and granted leave for the appeal.
In a terse judgement, the panel of the Divisional Court [2007 CanLII 21126 ] modified the original Order by including with the condition that the University undertake to pay Visic’s expenses, be expressly subject to any further Order ordering Visic to reimburse them..
The Ontario Court of Appeal, refusing to accept second place in the terseness category, pointedly affirmed the Divisional Court’s disposition [2008 ONCA 731]. The Supreme Court of Canada (not saying anything at all) has now refused leave to appeal.

The result is that, at least under the Ontario rules, the flexibility to treat severe financial imbalance in the respective positions of the parties in the context of venue, seems clearly affirmed. How much farther that flexibility might go, procedurally and geographically, remains to be seen.

The Divisional Court leave decision may invite further consideration of how Ontario rule 13.01(2)(b) is to be read, in the sense of how much flexibility it gives the hearing judge on its own to craft the order to fit individual circumstances. The analysis may also raise an interesting question of how a rule calling for “any other relevant matter” is to be read, in the context of an apparently ejusdem generis set of factors, in going so far as effectively to allow the imposition of such a separate condition as the accommodation of the opposing parties expenses resulting from a change of venue.



* Visic was a graduate lawyer who had failed courses in her first year of law school because the law school had not adequately accommodated a disability in writing examinations. She had long before successfully internally overturned a decision by the University to have her leave law school and had then completed all three years of her degree. The University, however, continued to insist that it show the academic results for the first year on her transcript. Visic had sued the University contending that the fact that the first year results, being the result of insufficient accommodation should not appear and that in the result, she was unable to advance in the profession. 


March 25, 2009

UK Green Paper on proposed, written (!) British “Bill of Rights!”

Filed under: 1 — ruleswatch @ 11:58 am

The government of the United Kingdom has just released a Green paper entitled “Rights and Responsibilities: Developing Our Constitutional Framework” intended to move the country toward a documented Bill of Rights. The idea of a written UK Bill of Rights has formed part of broad government moves, since at least the fall of 2007, toward reform of institutions fundamental the rule of law. Legal change has been increasingly organized through steps in the administration of Justice (a Justice Ministry has been established) and basic changes are coming to the organization of the country’s court system.


“Rights and Responsibilities” makes extremely useful reading. In clearly setting out the ground work for the shape of its own proposals, the paper brings together discussion of fundamental liberal democratic constitutional and rights theory. It does so, citing lessons learned and ideas generated from the Magna Carta to the Constitution of South Africa, and from Edmund Burke to the House of Lords’, Lord Hoffman.


The paper also points out the symbolic and political utility of declarations of rights from the US Declaration of Independence and the 1680’s English Bill of Rights. Our own Charter for example is said “…[s]ince its inception ..[to have]…become a symbol of Canadian identity.”


The Green Paper matches these broad functional contributions a Bill can serve with current, urgent needs:

Expressing …freedoms and duties in a Bill of Rights and Responsibilities and the values which give rise to them (in a Statement of Values potentially serving as a preamble to such a Bill), could act as an anchor for people in the UK as we enter a new age of anxiety and uncertainty.

Equally interesting, in calling for Responsibilities to be recognized side by side with Rights in a prospective Bill, the policy paper acknowledges what it describes as the effect of broad based shifts in fundamental legal-social values:

“ and economic change has altered public attitudes. It has encouraged the rise of a less deferential, more consumerist public. In this more atomised society people appear more inclined to think of themselves and one another as customers rather than citizens. People are more independent, more empowered. But these developments can pose problems too, especially when viewed in the context of liberal democracy and the way people look upon rights. To an extent, rights have become commoditised. This is demonstrated by those who assert their rights in a selfish way without regard to the rights of others.

Some commentators have suggested that an over-emphasis on rights, to the exclusion of notions of responsibility, can lead to a ‘me’ society rather than a ‘we’ society, in which an unbridled focus on our own individual rights and liberties risks overtaking our collective security and wellbeing, and respect for others.

The observation primes the pump for what seems to be a major new development in how Rights are to be presented. “Responsibilities and rights are equally necessary for a healthy democracy.” The Green Paper sets out. “…it may be desirable to express succinctly, in one place, the key responsibilities we all owe as members of society, with a view to reinforcing the imperative to observe them…Responsibilities relating to the criminal justice system extend beyond an implied duty to obey the law. There are a number of duties that may be said also to imply an obligation to uphold the law.”

“Rights and Responsibilities: Developing Our Constitutional Framework,” highly readable and well-presented is worth a close and considered read.

Go to:


Response to the proposal has not been universal acclaim. The Independent newspaper’s “lead article” (editorial) of March 23 sees politics at work. It growled, in part, “For all the grand constitutional clothing of this Green Paper, it is essentially a political exercise. The idea of a new Bill of Rights and responsibilities was first proposed by Mr Brown when he was Chancellor, to counter a Tory criticism that the Human Rights Act was impeding Britain’s ability to deal with illegal migrants and imposing unacceptable costs on business.

Yet what has emerged from this political calculation looks like a half-baked – and possibly dangerous – attempt to create a legacy by a struggling government. Our freedoms, stated or unwritten, should not be used as party political weapons.”

More on UK Human Rights Act, complaints later

Nova Scotia: mandamus precludes prevarication

Filed under: 1 — ruleswatch @ 10:27 am

In Carl Smith v. The Department of Community Services (Income Assistance) 2009 NSSC 86, Scaravelli J., has scuttled the Department of Community Services’ apparent attempts to stonewall the decision of its own Appeal Board by asking for yet further information – and consequently delaying relief – to an appellant who had overturned a denial of support before the Board.The department’s brief saw its actions quite righteously. Its brief said:

While the appeal board may have determined the applicant’s eligibility within the context of the information before it, the appeal board decision does not conclude the issue of eligibility. In this case, the department clearly had the right to request additional information from the applicant; especially when presented with new information at the appeal hearing that raised questions about the applicant’s finances.


The Court disagreed. Observing that, “[12] The Respondent’s position appears to be that it can ignore an Appeal Board decision simply by demanding further information even when the Appeal Board has made a finding on eligibility. ..” it granted mandamus.

The Court said giving one or two observers a tinge of indigestion:

[6] Our courts have repeatedly adopted the criteria from

Rawdon Realties Limited v. Rent Review Commission (1982), 56 N.S.R. (2d) 403 (N.S.T.D.), where the court stated:


(Some people have argued that authorities apparently setting out and relying on preconditions to mandamus as a checklist, such as Rawdon can appear to attach a sense of restrictiveness to the remedy that it perhaps not so clearly should have)

March 20, 2009

Nova Scotia College of Physicians and Surgeons prompts “Nice” demonstration of Dunsmuir standards

Filed under: 1 — ruleswatch @ 4:14 pm

The just released Osif v. College of Physicians and Surgeons of Nova Scotia, 2009 NSCA 28 (Saunders J.A. for the Nova Scotia Court of Appeal), rejecting an appeal from a disciplinary decision of a hearing panel of the Nova Scotia College of Physicians and Surgeons, has given a handy and concise summary and application of the new, Dunsmuir standard of review (as some would have it “SOR”) analysis in a statutory appeal (under the new Nova Scotia Civil Procedure Rules  –and elsewhere– explicitly under the category of “judicial review”) of an administrative decision.* [Dunsmuir 2008 SCC 9; Pezim [1994] 2 S.C.R. 557]

The passage is particularly helpful because it presents the Dunsmuir process in a brief and organized way and, then, fits it into it a “reasonableness” assessment that combines the older Pezzim statement of the content of the reasonableness with the transparency and the line of reasoning statement of the test contributed by the Dunsmuir majority.

Justice Saunders writes:

[51] …there are now only two standards of review applicable to the decisions of administrative tribunals: correctness and reasonableness. Abandoning its customary model used to gauge the bandwidth of
appropriate judicial deference as being “too difficult to apply to justify its
retention,” the Court has adopted a framework referred to as the “standard of
review analysis.”

[52] The Supreme Court explained the steps to be followed in conducting such
an analysis:

[62] In summary, the process of judicial review involves two steps. First,
courts ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of deference to be accorded with regard to a
particular category of question. Second, where the first inquiry proves unfruitful,
courts must proceed to an analysis of the factors making it possible to identify
the proper standard of review.
. . .

[64] The analysis must be contextual. As mentioned above, it is dependent on
the application of a number of relevant factors, including: (1) the presence or
absence of a privative clause; (2) the purpose of the tribunal as determined by
interpretation of enabling legislation; (3) the nature of the question at issue, and;
(4) the expertise of the tribunal. In many cases, it will not be necessary to
consider all of the factors, as some of them may be determinative in the
application of the reasonableness standard in a specific case.

[53] The Court provided a working definition for “reasonableness” at ¶ 47:

47 . . . Tribunals have a margin of appreciation within the range of acceptable
and rational solutions. A court conducting a review for reasonableness inquires
into the qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law.

[54] The Court went on to define “correctness” as:

50 . . . When applying the correctness standard, a reviewing court will not show
deference to the decision maker’s reasoning process; it will rather undertake its
own analysis of the question. The analysis will bring the court to decide whether
it agrees with the determination of the decision maker; if not, the court will
substitute its own view and provide the correct answer. From the outset, the court
must ask whether the tribunal’s decision was correct.


[55] Dunsmuir explains that the reasonableness of a tribunal’s decision must be
tested from two perspectives: the first deals with transparency in the sense that the
tribunal’s reasoning path must be apparent; the second deals with outcomes, in
other words whether the conclusion fits within a tolerance or “margin of
appreciation” accorded the tribunal. In this case there is no challenge to the first
aspect, that being the transparency or intelligibility of the hearing committee’s
decision-making process. We are able to restrict our inquiry to whether the
committee’s findings and conclusions fall within a range of possible, acceptable
outcomes which are factually and legally defensible.

*The decision deserves to be well read on a series of other grounds as well. It gives a skillful analysis of what it ultimately dissects as the substantive issues on the appeal and it gives a “nice’ demonstration of h0w to integrate past authority into the standard of review analysis executing the SCC’s Dunsmuir direction. As first-rate by-products, the decision also gives a glimpse of both a nicely drafted College hearing notice and a solid and responsible penalty decision of the College’s hearing panel.

March 19, 2009

PRE-ACTION DISCOVERY: Fishing on both sides of the Altantic

Filed under: 1 — ruleswatch @ 9:06 pm

A recent post on a UK [Wordpress] blog (“Data – where is it”)– apparently maintained by an alliance of UK electronic discovery, forensic and like technical experts, with some interesting material– has just visited “pre-action” (before a court proceeding has been begun) disclosure of documents.

Current UK civil procedure does provide a specific process for the disclosure of documents at the pre-proceeding stage, but the scope is limited. The governing English rules [Rule 31.16] provide for the possibility of court-ordered pre-action disclosure but only where there is likely to be an action and the disclosure sought would be effectively between parties to, and within the parameters fixed by the scope of, the likely action. The rule also explicitly preserves other common law (or presumably, equitable) rights of disclosure of documents [Rule 31.18].

But the extent to which the rule will be exercisable by any anxious applicant seems to be very tightly drawn. Black et al v. Sunimoto Corporation [2001] EWCA Civ 1819, a comparatively recent attempt to invoke the rule, sees sharp boundaries on how far the rule might go. The first instance court had allowed an order for disclosure of documents and Black seemed well on his way to constructing his claim. The court of appeal, however, seemed to feel that Black’s industrious case-building was simply going too far. Citing older and more conservative authority than one or two other cases that seem to be around, the court set out a principled basis for tight-fistedness in producing pre-action discovery of documents:

“It has to be remembered by all concerned that we do not have in this country an inquisitorial procedure for civil litigation. Our procedure is accusatorial. Those who make charges must state right at the beginning what they are and what facts they are based on. They must not use Anton Piller orders as a means of finding out what sort of charges they can make.”

Hytrac Conveyors Ltd v. Conveyors International Ltd [1982] 3 All ER 415 cited in the more recent Black et al v. Sunimoto Corporation [2001] EWCA Civ 1819

Nova Scotia’s old rules had made provision for court-ordered pre-action discovery (1972 Rule 18.02 provided:

Unless the court otherwise orders, an examination for discovery shall take place, …(c) where a proceeding has not been commenced, when the court orders.

but, to the extent there had ever been an attempt to access it, the judges who were approached on the point jealously guarded the door and instances of access granted, if any, were rare.

The new Rules appear to be much less generous in scope than the earlier rules in giving limited,specific direction as to where discovery can be ordered:

Rule 18.12 (2) provides:

A judge may order discovery before a proceeding has started in one of the following circumstances:

(a) the party who moves for the discovery wishes to start a proceeding but is prevented from doing so immediately, and evidence needs to be preserved;
(b) a proceeding is likely to be started against the party who moves for the discovery, and evidence needs to be preserved;
(c) a court outside Nova Scotia requests assistance.

So, on paper, it seems, the current Nova Scotia rules apparently restrict the broad scope of disclosure from what they used to be. In reality, however, by limiting the scope of the power to the preservation of evidence or to the request of an outside court, the practical effect will no doubt continue to be very much the same as it has been.

One last word on these insights from the UK: there is room to manoeuver. In another 2001 case, Bermuda International Securities Limited v. KPMG [2001] EWCA CIV 269, the Court of Appeal was more forthcoming than Black in a case of apprehended auditor’s negligence. (The theory of the applicant was that certain errors committed by Bermuda in remitting taxes ought to have been flagged when the firm’s accounts were being audited.) They ordered disclosure.

In doing so, however, the court made an extremely interesting observations as to costs. Although Bermuda’s efforts to obtain documents were successful, and even thought they overcame strong resistance by KPMG, the court made the following observation on costs following the application–

“In my view it is important that it is recognised that in relation to pre-action disclosure, the cost of the actual exercise will be paid by the applicant for that disclosure. But so far as the application is concerned if it has been unreasonably resisted, those are the very circumstances contemplated where the order for costs may be different.”

The lesson for us prctising in Nova Scotia courts under our rules, is that there is little scope for rule-based pre-proceeding disclosure, that the resistance to the idea is principle based and getting it, however stoutly resisted, will likely mean that the applicant will be left to bear his own costs.

Now in the meantime, there is the whole other ball game of equitable disclosure, pre-trial on which there is more to come.

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