Can Civil Procedure Rules Limit Inherent Jurisdiction?
This was an appeal by Burton Canada Company (“Burton”) of the decision of the Chambers Judge, Justice Gregory M. Warner, dismissing Burton’s application for summary judgment. The decision of Justice Warner was upheld, and the appeal dismissed. This decision may have far-reaching implications, as the majority of the Nova Scotia Court of Appeal holds that changing the Civil Procedure Rules can restrict the inherent jurisdiction of a Court. Although the decision was not made on this basis, this dicta may have radical implications for the inherent jurisdiction of superior courts to deal with their procedural rules.
This case stems from a 16 year old boy (“Coady”) being paralyzed when he fell and broke his neck while snowboarding, using a borrowed board from Burton. Coady sued the ski hill owners, Wentworth Valley Developments Limited (“Wentworth”) and Burton, alleging negligence in failing to maintain the hill and enticing him to try a high-end snowboard.
Burton and Wentworth sought summary judgment arguing that: (i) there were no facts in dispute; and (ii) Coady’s claim had no chance of success. Justice Warner dismissed the application for summary judgment, holding that there were contested questions of fact, mixed law and fact or inferences that would require a trial.
Burton (but not Wentworth) appealed. The appeal was dismissed. Four of five judges agreed that, based on the record, the disputed facts gave rise to genuine issues including (among many others listed) duty of care, causation and whether Coady was adequately warned. Since all of these issues required a trial to determine, Burton and Wentworth had not proved that there were no material facts in dispute. The majority therefore determined that they did not need to consider whether Coady meet the burden of proving his claim had a real chance of success.
This judgment contains a fascinating discussion of the Nova Scotia Civil Procedure Rules. Rule 13.04 is the “new” rule addressing summary judgment applications. Rule 13.04 does not explicitly reserve any residual inherent jurisdiction to the judge, as did the old rules, to grant or refuse summary judgment. The “new” rule 13.04 provides in relevant part:
13.04(1) A judge who is satisfied that evidence, or the lack of evidence, shows that a statement of claim or defence fails to raise a genuine issue for trial must grant summary judgment.
(4) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge.
(6) The motion may be made after pleadings close. (Underlining mine)
The Majority wrote at paragraphs 71-72 with respect to the decision of the chambers judge that:
…Justice Warner rejected Burton’s submissions [with respect to whether or not there was sufficient evidence for a trial]. He decided, in the alternative, that Burton’s motion was premature and that he retained and inherent judicial discretion, notwithstanding the new wording of the test for summary judgment under CPR 13.04, to refuse the motion for other reasons. Justice Warner stated the issue concisely as:
 …whether the wording of the new Rule for summary judgment on the evidence still permits the motions judge to exercise discretion to refuse motions, apart from application of the Guarantee test, on the basis that the plaintiff has not yet had a fair opportunity to put his best foot forward or for other juridical reasons.
After citing at some length the decision of the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, Warner, J. reasoned that notwithstanding the differences in wording between the old 1972 Civil Procedure Rules, and the new January 1, 2009 Civil Procedure Rules […] he could still decline to grant summary judgment in cases where he thought the justice of the situation required it.
The majority found at paragraph 74 that Warner, J. erred in determining that he still had residual authority to grant summary judgment where required by the justice of the situation. The majority goes on to state at paragraph 77 that “…there is nothing in our new Rule to suggest or imply that any remnants of an overarching inherent jurisdiction to refuse summary judgment, are retained.”
Although, in this case, nothing turned on Justice Warner’s finding regarding his residual authority, the discussion by the majority may have far-reaching implications for the decision-making authority of superior court judges. Indeed, it is a venerable common law principle that superior courts control their own process. As pointed out at paragraph 71 by Justice Duncan Beveridge in his strong dissent, earlier Nova Scotia Court of Appeal authority makes it clear that Rules of Court do not oust the authority of a judge to make procedural decisions:
…I have no hesitation in saying that the inherent jurisdiction of a judge of the Supreme Court is not ousted by rules of court. Chief Justice MacDonald in Central Halifax Community Association v. Halifax (Regional Municipality), 2007 NSCA 39 provided the following definition of inherent jurisdiction:
Every superior court in this country has a residual discretion to control its process in order to prevent abuse. Procedural rules, however well intentioned, cannot be seen to stand in the way of basic fairness. This overriding judicial discretion is commonly referred to as the court’s inherent jurisdiction. It is a jurisdiction sourced independently from any rule of court or statute.
Beveridge, J. is careful to clarify at paragraph 73 that he does not advocate the idea that inherent jurisdiction gives “…a judge carte blanche to change the substantive law”. Rather, that such authority should be exercised cautiously. Still, it must be recognized that Rules of Court are meant to assist the Court in administering justice. As succinctly stated at paragraph 78 of the dissent, “[s]uch rules may well have a status as subordinate legislation by virtue of the Judicature Act, R.S.N.S. 1989, c. 240, s. 46, but the rules are meant to assist, not handcuff.”
Lawyers and judges alike will want to watch the treatment of this decision carefully. It may signal an erosion of the long-held rule that superior court judges have a wide discretion when it comes to dictating procedure. While such erosion of inherent jurisdiction may help ensure uniform application of the rules, one cannot help but wonder whether such uniform adherence to procedural rules may impede a judge’s ability to ensure efficient and cost-effective justice is carried out.
Burton Canada Company v. Coady, 2013 NSCA 95
Nova Scotia Court of Appeal Docket No: CA 407433
Date of Decision: August 28, 2013
Civil Proceudure Rules Nova Scotia Court of Appeal residual authority summary judgment