Summary Judgment in Nova Scotia: Blunden Construction Ltd. v. Fougere

by John McKiggan

The Nova Scotia Court of Appeal recently released its reasons in Blunden Construction Ltd. v. Fougere. The case is important because it reviews the law regarding summary judgment and provides an analysis of the test for summary judgement outlined in the Nova Scotia Court of Appeal’s decision in Burton Canada Co v. Coady and reconciles it with the recent decision of the Supreme Court of Canada in Hryniak v. Mauldin.

Background Facts

The Plaintiff, William Fougere was a teacher who became ill with a lung condition that he claimed was caused by dust produced during construction of an elevator inside the school where Fougere worked. Fougere sued the construction company, Blunden Construction Limited who joined the architectural firm, Fowler, Bauld & Mitchell Limited as a third party.

The Defendant and third party moved for summary judgment and dismissal of Fougere’s claim. The Judge hearing the motion determined that there were facts and credibility in dispute which would require a trial to resolve.

Blunden appealed. The Nova Scotia Court of Appeal, in a decision written by Justice J. W. S. Saunders dismissed the appeal.

New approach to summary judgement?

There has been a great deal of debate across Canada as a result of the Supreme Court of Canada’s decision in Hryniak v. Mauldin which considered the application of Ontario’s new rule 20 regarding summary judgment.

That rule provides judges in that province with the power to weigh evidence, draw inferences based on the evidence and determine issues of credibility on summary judgment motions.

In the words of Justice Saunders “those powers are foreign to the well established procedures and settled law which operate in Nova Scotia.”

Saunders acknowledged the need to consider proportionality and fair access to affordable and timely justice when considering summary judgment motions.

In denying the appeal Justice Saunders emphasized the link between the Civil Procedure Rule 13.07 on summary judgment and Rules 5 and 6.

Justice Saunders stated at paragraph 12:

“While this court has repeatedly made it clear that the rules for summary judgment in Nova Scotia do not provide a forum in which to resolve conflicts surrounding material facts or credibility, that does not mean that the only avenue open to litigants in deciding such cases is resorting to the traditional, protracted and often expensive trial model for adjudication. On the contrary, our rules offer an assortment of agile implements intended to provide simpler, faster, fair and affordable access to alternative forms of dispute resolution.”

Justice Saunders went on to state at paragraph 14:

“From this plainly worded Rule, many things are obvious. Any judge who dismisses a motion for summary judgment is obliged to give directions, as soon as practical, as to how the case will proceed. CPR 13.07(2) presents a list of illustrations of the types of things a judge might incorporate in his or her directions. These broad powers include such measures as: restricting discovery; regulating disclosure and production; narrowing the issues; allowing evidence taken at the summary judgment hearing to stand as evidence at the trial; accelerating the pace by convening a speedy trial; or ordering that the case will be decided by a hearing, and not a trial.”

Judges to Play a More Active Role?

Given Justice Saunders directions we can expect the courts of Nova Scotia to play a more active role in managing ongoing litigation. Justice Saunders commended the comments of Justice Karakatsanis in Hryniak where she urged:

“…judges to play a leading role in finding alternative measures which will produce adjudicated outcomes that are proportionate, timely, less costly, accessible and fair.”

What that will eventually mean for litigants in the Nova Scotia courts remains to be seen.

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