SUPREME COURT OF Nova Scotia
Citation: Raymond v. Halifax Regional Municipality, 2020 NSSC 316
Date: 20200228
Docket: Halifax, No. 467138
Registry: Halifax
Between:
Michele Hovey Raymond
Appellant
v.
Halifax Regional Municipality
Respondent
DECISION
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The Honourable Justice John P. Bodurtha |
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Heard: |
November 26, 2019, in Halifax, Nova Scotia |
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Oral Decision: |
February 28, 2020 |
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Written Release Date: |
January 12, 2021 |
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Counsel: |
Michele Hovey Raymond, Self-Represented Appellant Karen E. MacDonald, Counsel for the Respondent Matt Saunders, Counsel for the Moving Party, Halifax Regional Water Commission
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By the Court:
Overview
[1] This motion arises out of Michele Hovey Raymond’s (“Raymond”) Appeal of a decision of the Halifax Regional Municipality’s (“HRM”) Access & Privacy Officer’s decision under the municipal Freedom of Information and Protection of Privacy regime (“FOIPOP”). That Appeal is brought pursuant to section 494(1) of the Municipal Government Act, S.N.S. 1998, c.18, (“MGA”) and is about the adequacy of HRM’s search.
[2] This motion is about the power of subpoenas under Civil Procedure Rule 50.13. Raymond has issued subpoenas to two Halifax Regional Water Commission (“Halifax Water”) employees to bring documents and give evidence at the Appeal against HRM, but Halifax Water is not a party to that Appeal.
[3] While the Appeal moves forward, Raymond has also made a request of Halifax Water under the freedom of information regime for the same documents she wants to access under the issued subpoenas.
[4] Halifax Water seeks an Order:
(a) setting aside and quashing the subpoenas issued to Halifax Water employee, Kevin Gray, first on June 11, 2018, and revised and re-issued on August 10, 2018, requiring him to bring certain documents to the hearing of the Appeal in court file Hfx. No. 467138 (the “Appeal”); and
(b) Setting aside and quashing subpoenas issued to Halifax Water employee, Steve Skinner, on July 27, 2018, requiring him to attend the hearing of the Appeal.
[5] For the reasons that follow, I find that the subpoenas issued to Kevin Gray (“Gray”) and Steve Skinner (“Skinner”) ought to be quashed because, as employees of Halifax Water, neither Gray nor Skinner is able to produce material evidence that is relevant and necessary to Raymond’s appeal. Secondly, Raymond has not exhausted the legislative process regarding her access request of Halifax Water. I find her attempt to circumvent the legislative procedure by issuing subpoenas to Gray and Skinner, two Halifax Water employees, in an appeal of an HRM action an abuse of process.
Background
[6] Halifax Water is an autonomous, self-financed utility created by the Halifax Regional Water Commission Act, S.N.S. 2007, c. 55. It is the municipal water, wastewater and stormwater utility serving the residents of the HRM within its service boundary. Halifax Water is also a public utility under the Public Utilities Act, R.S.N.S. 1989, c. 380, and its business and operations are regulated under that statute by the Nova Scotia Utility and Review Board.
[7] On May 8, 2018, Raymond submitted an application for access under Part XX of the MGA to Halifax Water’s Access & Privacy Office. Similar to her requests for information to HRM, Raymond sought the following records:
Any and all Halifax Water records related to the ‘Boscobel-on-the-Arm’ subdivision (‘Hope Estate’ lands), which referenced P/D#40774127 (‘Boscobel’, 85 Boscobel Road, 93 Boscobel Road, Lot AC) and/or Michele Raymond and/or Russell MacKinnon, from 2011 to the present day.
Please supply records of all forms of communication, including emails, letters, phone logs, text messages, meeting notes, proposals, reports, site visit reports, inspection reports, maps and plans.
(see Affidavit of James G. Spurr, Tab B)
[8] On June 6, 2018, Halifax Water responded to Raymond’s access request granting partial access to the requested records. Some records or information were held back, based on a number of exemption provisions, in accordance with subsection 465(2) of the MGA.
[9] On July 16, 2018, Ms. Raymond filed the necessary paperwork, and formally requested a review of Halifax Water’s decision by the Office of the Privacy and Information Commissioner (“OPIC”).
[10] Despite the ongoing OPIC review, on June 11, 2018, Halifax Water received an incomplete subpoena addressed to its employee, Gray, who is the Manager, Engineering Approvals. The subpoena seeks to have Gray attend the Appeal, and bring the following documents and other evidence (which are similar to the original access request made to Halifax Water on May 8, 2018:
All Halifax Water records related to ‘Boscobel-on-the-Arm’ development, which make reference to ‘Boscobel’, 85 Boscobel Road, PID# 40774127, Michele Raymond and/or Russell MacKinnon, including but not limited to: files, file notes, meeting notes, logbooks, phone logs, plans, letters, text and email messages and other communications.
Please bring full size copies of all plans.
(see Affidavit of James G. Spurr at Tab E)
[11] On July 27, 2018, Raymond served a further subpoena on a Halifax Water employee, Skinner, its Design & Construction Project Manager to attend the hearing of the Appeal.
Issues
[12] The issues before the Court on this motion are:
(a) Does the court have jurisdiction to quash the subpoenas?
(b) If the Court does have jurisdiction, is this an appropriate circumstance to quash the subpoenas because Raymond has not met the onus of showing the witnesses can present material evidence in the Appeal? and;
(c) Do the subpoenas constitute an abuse of process given that the legislated FOIPOP regime is presently engaged between Raymond and Halifax Water?
Analysis
Jurisdiction
[13] In these circumstances, there is no express provision in the Civil Procedure Rules (“CPR”) to quash subpoenas but the Court has inherent jurisdiction to set them aside based on its ability to control and prevent abuses of its own processes. Justice Rosinski summarized this inherent jurisdiction in Howatt v. Chandler, 2016 NSSC 216, at paras. 16-17:
16 Where there have been applications to quash a properly issued subpoena, though the Rules are silent on the quashing of subpoenas, our Courts have held that the evidentiary burden is first on the party who requested issuance of the subpoena to establish a link of relevance between the proposed witness and an issue in the proceedings; once satisfied, the burden shifts to the opposing party to show good cause, such as oppressiveness or abuse of power, as to why the subpoena should be quashed - Ocean v. Economical Mutual Insurance Co., 2010 NSSC 20, per Associate Chief Justice Smith, citing Justice Tidman's decision in Bowater Mersey Paper Co. Ltd. v. Nova Scotia (Minister of Finance), [1991] N.S.J. No. 114.
17 As Justice Tidman observed in Bowater Mersey, this Court's power to quash subpoenas arises under common law. More specifically, it arises under this court's inherent jurisdiction to control the court's process, in order to ensure the just determination of legal disputes. Surely, if this court has the jurisdiction to compel a non-resident witness to testify within Nova Scotia, it must also have the jurisdiction to compel a residentparty to litigation in Nova Scotia to attend for an IME outside Nova Scotia, but within Canada.
[14] In Bowater Mersey, supra, Justice Tidman stated at para. 10:
... if the issuer establishes a link of relevance between the proposed witness and the issue in the proceedings, he is entitled prima facie to have a subpoena issued. The burden then shifts to the attacker to show good reason, such as oppressiveness or abuse of power, why the subpoena should be quashed.
Material Evidence on Appeal
[15] This Court has the inherent jurisdiction to quash an issued subpoena on the ground that information sought is not relevant to the live issues in dispute (see Kent v. Kent, 2010 NLCA 53 and Bowater Mersey, supra). The initial onus requires the issuing party to establish a connection of relevance between the proposed witness and the issue(s) of the proceeding.
[16] This connection of relevance was analyzed in R. v. Harris, [1994] O.J. No. 1875 (ONCA), where the Ontario Court of Appeal held that it was insufficient for the party issuing the subpoena to claim that the witness “may have” material evidence, the issuing party must establish that “it is likely” that the witness would have material evidence to the issues raised. This threshold is meant to restrict parties from engaging in fishing expeditions by issuing multiple and unnecessary subpoenas (see paras. 4 and 5).
[17] Before me, Raymond must establish that the witness is likely to give evidence that is relevant and necessary to the issues in the proceeding. What is at issue on the Appeal is the adequacy of HRM’s search.
[18] If a link of relevance is established, the burden shifts to the party challenging the subpoena, who then must show “good reason, such as oppressiveness or abuse of power" to have the subpoena quashed (see Bowater Mersey, supra, at para. 10).
[19] The issue in Raymond’s appeal is HRM’s decision in response to the OIPC findings. Gray and Skinner were not involved in HRM’s decision. Gray and Skinner are employees of Halifax Water – not HRM. The subpoenas relate to matters at issue in the HRM Appeal, an appeal where Gray and Skinner are not likely to provide material evidence.
[20] Raymond is attempting to use the issued subpoenas to obtain information in her appeal against HRM while that information is under review through an access request of Halifax Water, a completely separate and independent public utility. This is the type of fishing expedition discussed and prohibited in Harris, supra. Gray and Skinner are not able to give evidence that is relevant and necessary to the Appeal.
[21] Raymond asserts that the evidence from Gray and Skinner will demonstrate that HRM’s search of records under the FOIPOP regime was inadequate. This assertion is not supported by any convincing evidence or authority. The evidentiary record in this case is similarly lacking, as was found by Justice Brothers in Raymond v. Halifax Regional Municipality, 2018 NSSC 149 at para. 26:
26 Ms. Raymond stated in oral argument that her purpose in having the subpoenas issued was that she would receive ‘answers’ and ‘records would appear’. What underscored this motion was the appellant's belief that the HRM was hiding documents or not adequately searching for records requested. The appellant stated that she wanted to feel assured disclosure was complete. The Appellant stated that she was concerned the HRM would not bring all the necessary records to court and would not comply with its statutory obligations under s. 495(2) of the MGA. Her suspicions concerning the HRM's actions, or lack thereof, punctuated the motion. These are serious allegations made without any evidential foundation.
[22] In support of my finding that I am not satisfied that subpoenas of Gray and Skinner seek material evidence on the issue on appeal, I reference paras. 30 and 31 from Raymond, supra:
30 Tully's report, attached as Exhibit A to the affidavit of Amanda George, is 21 pages long and concludes with thirteen specific findings and fourteen recommendations concerning access to records. Tully rendered no decision, and legislatively could not render a decision. The decision of the responsible officer, Dempsey accepts some of the Tully recommendations and rejects others. Dempsey, the Privacy Officer at the HRM, could accept, reject, or partially accept any recommendations. The Tully report, with recommendations, is before the court on this statutory appeal, not as the subject of the appeal but as background information and speaks for itself.
31 The appellant seeks to know whether Tully had access to all documents in reaching the recommendations in her report. There is no nexus drawn between this issue and the issues on the appeal. Given the Tully report is not subject to appeal, I am not satisfied the subpoena seeks relevant information.
[23] The evidence sought with the subpoenas is from individuals who are not involved in the adequacy of the search and are not even employees of HRM. Gray and Skinner are not able to provide material evidence regarding the adequacy of HRM’s search. Raymond has not met her onus to demonstrate that the subpoenas are likely to provide material evidence to the issues on appeal regarding HRM’s decision.
[24] Raymond has not provided one authority to support her position and I am not persuaded by her argument. The question as to what is relevant and necessary arises directly from the Respondent’s appeal which involves access to HRM records. Gray and Skinner are not employees of HRM, nor are they involved in the Access to Information Program at HRM; therefore, I am not convinced that they would have any material evidence regarding Raymond’s appeal.
Abuse of Process
[25] Should I be wrong in my analysis regarding quashing the subpoena on issue (b), I would quash the subpoenas on the basis that they constitute an abuse of process. I would add that the Court agrees with the decision of the Ontario Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, that unless exceptional circumstances exist, a Court should not interfere in an administrative proceeding until it has run its course (see paras. 68–71). I find no exceptional circumstances on behalf of Ms. Raymond that would justify this Court interfering in the administrative process.
[26] Raymond had previously received a portion of the materials with redactions under Part XX s. 466(a) of the MGA and sought a review of that decision. However, rather than wait to obtain documents under a review of her FOIPOP request with Halifax Water, Raymond issued subpoenas in an ongoing appeal of an access request of HRM to obtain records that relate to Halifax Water. These are two separate and distinct government entities with separate records at issue.
[27] CPR 88.01 speaks to the Court’s inherent authority to protect its own processes from abuse. CPR 88.01 reads as follows:
88.01 (1) These Rules do not diminish the inherent authority of a judge to control an abuse of the court's processes.
(2) This Rule does not limit the varieties of conduct that may amount to an abuse or the remedies that may be provided in response to an abuse.
(3) This Rule provides procedure for controlling abuse.
[28] The remedies available to the Court are addressed in CPR 88.01(2) as follows:
88.02 (1) A judge who is satisfied that a process of the court is abused may provide a remedy that is likely to control the abuse, including any of the following:
(a) an order for dismissal or judgment;
(b) a permanent stay of a proceeding, or of the prosecution of a claim in a proceeding;
(c) a conditional stay of a proceeding, or of the prosecution of a claim in a proceeding;
(d) an order to indemnify each other party for losses resulting from the abuse;
(e) an order striking or amending a pleading;
(f) an order expunging an affidavit or other court document or requiring it to be sealed;
(g) an injunction preventing a party from taking a step in a proceeding, such as making a motion for a stated kind of order, without permission of a judge;
(h) any other injunction that tends to prevent further abuse.
[29] In Canada Metal Co. Ltd et al and Heap et al, (1975), 7 OR (2d) 185, at para. 18, the Ontario Court of Appeal laid out principles for the proper use of a subpoena and the need for quashing a subpoena when it abuses the Court’s processes:
The evidence sought to be elicited must be relevant to the issue on the motion. If it is, there is a prima facie right to resort to Rule 230. That right must not be so exercised as to be an abuse of the process of the Court. There will be such an abuse if the main motion is itself an abuse, as by being frivolous and vexatious, or if the process under Rule 230, while ostensibly for the purpose of eliciting relevant evidence, is in fact being used for an ulterior or improper purpose, or if the process is being used in such a way as to be in itself an abuse (as for example, by issuing subpoenas to every member of the House of Commons to prove a defamatory statement shouted out by a spectator in the gallery). The list is not exhaustive.
[30] Similarly, the Newfoundland Court of Appeal found that a subpoena may be quashed when it was not issued in good faith for the purpose of obtaining relevant evidence to the live issues in dispute, and instead was issued for an ulterior or improper purpose, and/or its issuance itself is an abuse of process (see Kent, supra, at para. 78).
[31] In considering the relevant considerations for quashing a subpoena the Appeal Court in Kent, supra, said at para. 74:
74 Additionally, even if the material sought can be said to be relevant in this sense, there may be, as Re General Hospital Corporation indicates, other grounds on which a person subpoenaed may be able to quash the subpoena or at least postpone its execution. Aside from issues involving irregularity in issuance, and other grounds of inadmissibility, such as privilege and specific statutory exceptions, most other grounds are a manifestation of the jurisdiction of the court to control an abuse of its process. This involves taking into consideration the interests of the subpoenaed witness as well as the interests of the litigants by looking at the actions, motivations and purposes of the party issuing the subpoena as well as the impact on the person subpoenaed. Insofar as the litigant issuing the subpoena is concerned, the bona fides of the issuer may be inquired into with a view to determining whether the subpoena has been issued for an improper purpose. With respect to the subpoenaed person, the court could inquire into such issues as whether, given the significance of the evidence and the timing of the request for production, the request can be said to work an unnecessary hardship or would be oppressive as to the number, nature or breadth of the documents required, considering the time and expense involved in obtaining the information and the degree of private, personal information involved. This is essentially a balancing exercise, involving the application of the proportionality principle recognized by this Court in Szeto et al v. Field, 2010 NLCA 36.
[32] Absent exceptional circumstances, a court should not interfere with the ongoing engagement of the administrative regime until a party’s remedies under that regime have been exhausted (see Volochay, supra, at paras. 68-71). The rationale for the principle was summarised by Stratas, J.A., in Canada (Border Services Agency) v. CB Powell Limited, 2010 FCA 61, at paras. 31-32:
31 Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
32 This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway: see, e.g., Consolidated Maybrun, above, at paragraph 38; Greater Moncton International Airport Authority v. Public Service Alliance of Canada, 2008 FCA 68, at paragraph 1; Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798 (Div. Ct.). Further, only at the end of the administrative [page347] process will a reviewing court have all of the administrative decision-maker's findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience: see, e.g., Consolidated Maybrun, above, at paragraph 43; Delmas v. Vancouver Stock Exchange (1994), 119 D.L.R. (4th) 136 (B.C.S.C.), affd (1995), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians of Ontario (1991), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision makers who, like judges, have decision- making responsibilities to discharge: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 48.
[33] In this case, Raymond is attempting to avoid the FOIPOP review process by subpoenaing Gray and Skinner to give evidence in Raymond’s appeal of her access request with HRM. Although self-represented, Raymond is knowledgeable of the process and has initiated a number of actions regarding the same issues (see Raymond, supra; Raymond v. Nova Scotia (Freedom of Information and Privacy Commissioner), 2017 NSSC 322; Raymond v. Nova Scotia (Freedom of Information and Privacy Commissioner), 2019 NSCA 1). She knew that she had two separate access requests: one with HRM and one with Halifax Water (see Affidavit of Raymond, November 8, 2019, Tab F). She knew that she had an ongoing access request with Halifax Water for essentially the same documents requested under the subpoena. I find her actions in issuing the subpoenas to be an abuse of process, based on my earlier reasons regarding the relevance of their respective evidence about a live issue on appeal and, as well, on the basis that Raymond has not exhausted her rights of review and appeal of the original decision regarding her FOIPOP request of Halifax Water.
Conclusion
[34] I am not persuaded by Raymond that Gray and Skinner would likely provide material evidence at the Appeal. The issued subpoenas are quashed on that basis.
[35] If I am incorrect in this finding, I would quash the subpoenas on the basis that the issued subpoenas constitute an abuse of process because, absent exceptional circumstances, Courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. Raymond still has an ongoing review with Halifax Water, yet has issued subpoenas to two employees at Halifax Water to bring documents of Halifax Water and provide evidence in her Appeal regarding the adequacy of the search of HRM. This is an attempt to circumvent the legislative procedure. She has not exhausted the legislative process regarding her access request of Halifax Water. This constitutes an abuse of process and the subpoenas are quashed on this basis as well.
[36] If the Parties are unable to agree to costs, within 30 days of today’s date, I will receive submissions from the parties. The submissions will be no more than ten pages double-spaced.
Bodurtha, J.