Date: 20011107
Docket: CA 174427
NOVA SCOTIA COURT OF APPEAL
[Cite as: Fiske v. Nova Scotia (Attorney General, 2001 NSCA 159]
BETWEEN:
THE ATTORNEY GENERAL OF NOVA SCOTIA,
representing HER MAJESTY THE QUEEN in right of NOVA SCOTIA
and THE NOVA SCOTIA GAMING CORPORATION
Appellants
- and -
RALPH F. FISKE
Respondent
DECISION
Counsel: Robert L. Barnes and Brian C. Curry for the appellants
Bruce T. MacIntosh, Q.C. and Joel G. Sellers for the respondent
Application Heard: October 30, 2001
Decision Delivered: November 7, 2001
BEFORE THE HONOURABLE CHIEF JUSTICE GLUBE, IN CHAMBERS
GLUBE, C.J.N.S.: (In Chambers)
BACKGROUND
[1] On February 23, 1995, Ralph F. Fiske was appointed Chair of the Nova Scotia Gaming Corporation by an Order in Council of the Province of Nova Scotia. On September 30, 1997, Mr. Fiske resigned his position effective October 3, 1997. In May of 1998, he sued the Province and the Gaming Corporation claiming constructive dismissal. Following a 46 day trial in 2000 and 2001, Justice David W. Gruchy awarded Mr. Fiske $302,792.83 for lost salary and benefits. He was also awarded prejudgment interest at a rate of 7.0% and costs which have not yet been determined. There was no award of aggravated or punitive damages.
[2] The Attorney General, representing the Province, and the Gaming Corporation have appealed; Mr. Fiske has cross-appealed. April 3 and 4, 2002 have been set to hear the appeal and cross-appeal.
[3] In his order dated September 24, 2001, the trial judge confirmed his award and agreed that execution on the judgment was to be stayed until October 8, 2001, allowing the appellants the opportunity to consider whether they would file an appeal and a stay application because of concerns about recoverability of any amounts paid to Mr. Fiske in the event of a successful appeal.
[4] The notice of appeal and application for a stay of execution were filed on October 4, 2001.
[5] This decision deals with the application for a stay of execution by the appellants pursuant to Civil Procedure Rule 62.10.
FACTS ON THE STAY APPLICATION
[6] With this application, the appellants filed the affidavit of Marie T. Mullally, C.A., the President and Chief Executive Officer of the Gaming Corporation, in which she states in part:
... I do verily believe if the amount of the judgment was paid now and the Appellants were successful in their appeal they would be unable to recover the monies from the Respondent. (Para. 4.)
[7] Ms. Mullally bases her belief on the following:
(a) a copy of a letter to Canada Customs and Revenue from Mr. Fiske “... authorizing that no income tax be withheld on the sum of $288,542.33 if the Respondent deducts that amount as legal fees from his income for the year 2001” (para. 5), and her belief that any monies paid to Mr. Fiske will go to his solicitor for legal fees;
b) a copy of a newspaper article dated July 29, 2001 from the Sunday Daily News, in which Mr. Fiske stated the full amount of the judgment could be used to pay legal fees to his solicitors;
c) statements by the respondent’s solicitor about Mr. Fiske’s impecuniosity in a letter to the trial judge dated October 3, 2001 (which Mr. Fiske corrects to 2000) and on one page of his post-trial brief; and
d) an order for judgment in England on March 11, 1998 by the Society of Lloyd’s for £323,730.28 with costs.
[8] Mr. Fiske filed a lengthy affidavit, parts of which the appellant seeks to have struck from the record as being irrelevant, scandalous and improper. I shall deal with that later in this decision as parts should be struck. However, some paragraphs of the affidavit which are in order, advise the court that Mr. Fiske is now in business again as president of Business Loans Consultants Inc.; that his annual budget for living expenses is $54,000 per year; that he expects considerable growth in his income; that he has “no debts other than those incurred and paid in the normal course of daily living”; and, that he has paid and fully discharged the judgment of Lloyd’s.
STAY
[9] The well-known test to be applied on an application to stay is set out in Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R. (2d) 341. It consists of three steps: (1) whether there is an arguable issue; (2) on the facts of this application whether the applicants will suffer irreparable harm in that they will be unable to collect if the stay is not granted and the appeal is successful; and (3) that the appellants will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted. (Fulton, para. 29.)
[10] Counsel for the respondent seeks to add a fourth step. I understand that submission to be as follows: Even if the balance of convenience is weighed in favour of the appellants, the court should ask itself the question, “Will the stay achieve justice?” In dealing with this additional step, it is suggested that not only the conduct of the appellants should be examined but also whether or not there is a public interest found in the grounds of the cross-appeal.
(1) Arguable Issue
[11] The respondent agrees the appeal raises an arguable issue.
(2) Irreparable Harm
[12] The second stage of the test requires the applicant to establish irreparable harm based on the circumstances of this case. As noted by Cromwell, J.A. in MacPhail v. Desrosiers [1998] N.S.J. No. 37:
[12] Irreparable harm is not a term capable of exact definition. As Justice Sharpe notes in his treatise, Injunctions and Specific Performance (2nd, 1997):
It is exceptionally difficult to define irreparable harm precisely ... The important point is that irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case. (at para 2.440 to 2.450)
[13] In the authoritative discussion of the principles relating to stays pending appeal, RJR - MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311, Justices Sopinka and Cory describe irreparable harm as follows:
It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. ... The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration. (Citations omitted)
[Underlining added.]
[13] The appellants submit that they have an obligation to provide evidence which raises a prima facie case and then the onus is on the respondent to provide information to dispel the facts put forward by the appellant. They suggest that Mr. Fiske should have included in his affidavit information relating to his net worth or listing his assets.
[14] The respondent submits purported facts in the Mullally affidavit are outdated and no longer relevant; that Mr. Fiske is not insolvent and he has no debts. Also, that he has included sufficient information in his affidavit to support his position.
[15] In my opinion, the burden is on the appellants and they have failed to meet that burden. It is their obligation to establish on a balance of probabilities that they will suffer irreparable harm if the stay is not granted.
[16] As stated by Clarke, C.J.N.S. in Pentagon Investments Ltd. v. Canadian Surety Co. (1992), 112 N.S.R. (2d) 86 (in Chambers) at para. 11:
The beginning point is that Pentagon is entitled to the “fruit” of its litigation and the onus is on Canadian Surety to show on a balance of probabilities that it will suffer irreparable harm if it pays out the $150,000 awarded by the Court to Pentagon. This is not a shifting burden. As Mr. Justice Freeman wrote in his decision dealing with a stay application in Anwar Construction Ltd. et al. v. Phillips (J.R.) Electrics Ltd. et al. (1991), 108 N.S.R. (2d) 324; 294 A.P.R. 324 (C.A.) at p. 326:
“... A judgment creditor does not as a rule have to prove its financial stability as a condition of collecting on its judgment.”
[Underlining added.]
[17] In my opinion the appellants have not shown they would suffer irreparable harm unless a stay is granted. The Lloyd’s judgment has been paid; I could not accept an article in the Daily News as evidence of Mr. Fiske’s finances; he is working and meeting his living expenses; there is no evidence he is insolvent or unable to pay the applicants if the appeal is successful. Although it might be helpful in many cases for the respondent to supply much more information about his financial position, in this case there is sufficient information to show that the basis for the appellants’ submissions in the Mullally affidavit are not accurate or relevant. They have failed to show irreparable harm on a balance of probabilities.
(3) Balance of Convenience
[18] As the second part of the test has not been met, I do not have to deal with the balance of convenience.
(4) Fourth Ground
[19] It is unnecessary for me to deal with the suggested fourth ground in the context of this application.
SECONDARY TEST
[20] According to Fulton (supra, at para. 30), if the appellants fail to meet the primary test then they must satisfy the court that there are exceptional circumstances making it fit and just that the stay be granted.
[21] I find there are no additional circumstances than those already considered under the primary test that would make it fit and just to grant a stay in this case.
CONCLUSION
[22] The application of the appellants for an order to stay execution of the order for judgment dated September 24, 2001, is dismissed.
AFFIDAVITS
[23] Counsel for the appellants objected to many of the clauses of Mr. Fiske’s affidavit as irrelevant, scandalous and improper. Civil Procedure Rule 14.25(1) allows the court to order that an affidavit be struck or amended on the ground that it is false, scandalous, frivolous or vexatious. Civil Procedure Rule 38.11 appears to be the more appropriate Rule to apply. It reads as follows:
Scandalous, etc., matter in affidavit
38.11 The court may order any matter that is scandalous, irrelevant or otherwise oppressive to be struck out of an affidavit. [E. 41/6]
[24] Whether or not I should ignore offending paragraphs or expunge them from the record is a matter to be decided. The appellants request the offending paragraphs and passages be expunged citing three cases: Waverley (Village Commissioners) et al. v. Nova Scotia (Minister of Municipal Affairs) et al. (1993), 123 N.S.R. (2d) and 340 A.P.R., 46 at p. 50; Adelaide Capital Corp. et al. v. Smith’s Field Manor Development Ltd. et al. (1994), 129 N.S.R. (2d) and 362 A.P.R., 241 at 246; and MacDonald v. Workers’ Compensation Board (N.S.) (1995), 145 N.S.R. (2d) and 418 A.P.R., 301 at 314. I also refer to Hillcrest Development Co. v. Nova Scotia (Attorney General) [1997] N.S.J. No. 501 (N.S.C.A. Chambers).
[25] In my opinion, certain paragraphs or words in some paragraphs must be expunged. In Mr. Fiske’s affidavit it was inappropriate for him to deal with the conduct of the parties during and after the trial or to include personal opinions, commentary and allegations which are scandalous and irrelevant to the stay application.
[26] I shall deal with each paragraph where a problem exists.
[27] Paragraph 8: The words “unnecessarily protracted” and “as a consequence of the Appellant’s conduct in the proceedings” are struck as scandalous.
[28] Paragraph 9 is struck. It contains vexatious statements without factual basis and does not state who informed him allowing him to form his belief as to the amounts of the purported billable legal time or the disbursements of his legal counsel.
[29] Paragraph 10: Delete the word “protracted” as it is opinion and not relevant.
[30] Paragraph 12 is an opinion and a conclusion. It contains no facts in support. It is struck.
[31] Paragraph 13 contains scandalous words which are not relevant to this application. It is struck.
[32] Paragraph 14 contains argument, opinion and is scandalous and irrelevant. It is struck as is Exhibit “D”.
[33] Paragraph 17: The first sentence including the quote is struck as being irrelevant.
[34] Paragraph 18 is allowed to remain only up to and including the words “as word of my services spread”. The balance of that sentence is struck as scandalous and vexatious.
[35] Paragraph 20 is struck. It is irrelevant to this application.
[36] Paragraph 21 is struck. It is irrelevant and scandalous.
[37] Paragraph 22 is struck. It is irrelevant and scandalous.
[38] Paragraph 23 is struck as personal opinion which is irrelevant and scandalous.
[39] Paragraph 25 does not include who advised him of the contents and is struck.
[40] Paragraph 26 is struck from the beginning of the third sentence to the end of the paragraph as irrelevant and containing no source for his belief.
[41] Paragraph 27: The first sentence is struck as irrelevant.
[42] Paragraph 28 and Exhibit “F” are struck as irrelevant, argumentative and scandalous.
[43] Paragraph 30: The word “aggressive” in the first line and the words “Given such stridency” in line 6 are struck as irrelevant and scandalous.
[44] Paragraph 31: The paragraph is struck except for the first sentence as it is irrelevant.
[45] I have removed from the affidavit filed with the court those Exhibits which are struck as well as the impugned words.
DISPOSITION
[46] The application for a stay of execution is dismissed. The appellants have achieved some success in having parts of the affidavit struck. I have considered this and award costs of $800.00 to the respondent, including disbursements to be paid forthwith.
Glube, C.J.N.S.