N.L. – court’s efforts to case manage procedure and focus dispute overlap with arbitration’s benefits – #417

To assist the parties to reach the merits and perhaps resolve related issues not squarely before the court,  Mr. Justice Glen L.C. Noel in Oleynik v. Kachanoski, 2021 NLSC 4 wielded four (4) different procedural tools when adjudicating a procedural dispute: (i) assume case management; (ii) encourage elimination of preliminary procedural initiatives; (iii) ‘direct’ alternative dispute resolution; and, (iv) caution costs.  Only (i) and (iv) were within Noel J.’s express jurisdiction to order. Lacking jurisdiction under (ii) to prevent Respondent altogether from presenting its preliminary application or (iii) to impose mediation, Noel J. did expressly urge or “direct” consideration of the options.  Noel J.’s efforts reflect the courts’ genuine interest in assisting parties to either reduce or focus their disputes and incur less time and cost.  Those efforts overlap with the benefits commonly expected in arbitration and expressly urge litigants to seek out those benefits.

Applicant, a professor, applied for judicial review (“Application”) of the response/non-response given by Respondent, a university, to Applicant’s access requests made under the Access to Information and Protection of Privacy Act, 2015, SNL 2015, c A-1.2 (“ATIPPA”).  Noel J. noted without endorsing that Applicant chose to proceed by judicial review on the basis that the ATIPPA offers no adequate, alternative remedy. Noel J. commented that Applicant relied on the determination made in Beverage Industry Association of Newfoundland and Labrador v. Newfoundland and Labrador (Minister of Finance), 2019 NLSC 222 paras 68-75 that the ATIPPA does not preclude judicial review and its availability must be decided on a case-by-case basis.

Respondent applied to strike the Application under Rule 14.24(1)(a), (b) and (d) of the Rules of the Supreme Court, 1986, SNL 1986, c 42, Sch D (“Rules”) for the grounds Noel J. itemized at para. 17 (a) to (f) of the reasons.  In support of its application to strike, Respondent filed affidavit evidence. Respondent’s grounds appear to focus on the merits of the Application and not on whether Respondent lacked the right to seek judicial review per se.

In receipt of Respondent’s affidavit material, Applicant (i) served a notice of inspection and, (ii) served interrogatories on Respondent related to documents produced. Respondent and its counsel refused to answer the interrogatories. Applicant applied under Rule 31.04 for an order to compel answers.

The style of cause notes the status of the Information and Privacy Commissioner of Newfoundland and Labrador as an intervenor.

At para. 29, Noel J. summarized the relief sought by Applicant and at para. 31 identified the issues: are interrogatories appropriate in the context of a judicial review application; is the use of interrogatories contrary to the principle of proportionality in the circumstances of this proceeding; can counsel be compelled to give answers and evidence in the proceeding; are alternative remedies available to Applicant; and, what are the implications for moving forward in case management of the proceedings?

Noel J. then proceeded to wield four (4) different procedural tools available to him as a justice of Newfoundland and Labrador’s Supreme Court, General Division: (i) assume case management; (ii) encourage elimination of preliminary procedural initiatives; (iii) direct alternative dispute resolution before professional learned in the subject matter; and, (iv) caution costs.  

(i) case management – Noel J. wielded the most common tool available to the courts, namely having jurisdiction to assume consistent oversight over the dispute resolution brought to their attention. 

Noel J. acknowledged a gap in the practice by which the parties complete the record for judicial application.  Despite the “normal course”, and faced with “some uncertainty over who has responsibility for preparing and filing the Record”, Noel J. cut to the chase and, using his inherent authority over the procedure and the parties, ordered Applicant and Respondent to coordinate completion of the necessary task.

[48] I am ordering the filing of the Record.  Any records pertaining to a claim of privilege under section 30 of the ATIPPA shall be identified as such and redacted from the Record, and subject to further order of the Court.  In the normal course of an appeal of a public body’s decision on an access to information request, the head of the public body is responsible for preparing the record for the appeal:  section 56(7) of the ATIPPA.  Since this is a judicial review, there is some uncertainty over who has responsibility for preparing and filing the Record.  Both Counsel for [Respondent] and the Commissioner are to coordinate the preparation and filing of the Record on or before 8 February 2021.

[49] The parties are to make contact with the Court through my judicial assistant for arranging a further Case Management Meeting, and to provide their available dates in January and the first week of February.  I will convene a Case Management Meeting via teleconference prior to the hearing dates scheduled for 22-26 February 2021.  The purpose of the Case Management is to resolve procedural steps in the various proceedings that remain in controversy between the parties”.

(ii) encouraging elimination of preliminary procedural initiatives – Noel J. invited Respondent to “give consideration” to the efficacy of eliminating a step which risked duplicating much of the merits or otherwise delaying adjudication of the actual merits.

[50] [Respondent] ought to give consideration as to whether it still wishes to proceed with the application to strike.  The application to strike, based as it is on affidavit evidence, may take more time to hear, with the potential for lengthy cross-examination, than having the judicial review application heard and determined based on the Record and guiding authorities”.

(iii) directing alternative dispute resolution before professional learned in the subject matter – Reflecting Canadian courts’ support for resolving disputes outside of a courtroom or in lieu of a trial, Noel J. urged the parties to do more that just simplify their procedure.  He prompted the parties to consider alternative dispute resolution and, invoking a key promise of such processes, reminded that the parties could benefit from “a mediator experienced in workplace grievances and the ATIPPA”. By doing so, Noel J. pointed to the parties’ opportunity to use their necessary, upcoming exchanges in their present dispute as a means of “repairing the serious chasm in the employee-employment relationship that has developed”.

[51] [Applicant] and [Respondent] would benefit in repairing the serious chasm in the employee-employer relationship that has developed.  I am directing the parties to consider alternative dispute resolution by way of private mediation with a mediator experienced in workplace grievances and the ATIPPA, as a means of resolving some or all of the access requests and production disputes between them.  I realize it may not be appropriate for the Commissioner, as the independent investigative authority to be party to a mediation.  I also recognize the employment grievances are subject to the grievance and arbitration process set out in the Collective Agreement between [Respondent] and [Respondent Faculty Association]”.

(iv) costs cautioning – The Rules provide Noel J. with discretion over the allocation and calculation of costs.  Despite having limited authority over Respondent’s choice to pursue or abandon its application to dismiss or no authority to order the parties to undertake private dispute resolution, Noel J. telegraphed his thoughts on a potential costs consequences for “pursuing matters that are unproductive to timely resolution” or “for ulterior motives”.

[52] It behooves both [Respondent] and [Applicant] to minimize the demand on court resources and make every reasonable effort to resolve the proceedings before the Court on a cost-effective and efficient manner.  The parties have already spent several days in Court and there are at least nine more days scheduled.  If the Court has to adjudicate on a multiplicity of proceedings and interlocutory applications within the proceedings, I am serving notice there will be cost consequences for pursuing matters that are unproductive to timely resolution or for ulterior motives”.

urbitral notes – First, of the four (4) different procedural tools used – (i) case management; (ii) encouraging elimination of preliminary procedural initiatives; (iii) directing alternative dispute resolution before professional learned in the subject matter; and, (iv) costs cautioning – only (i) and (iv) were within his jurisdiction to order.  He had jurisdiction to resolve, but only once pleaded, the merits of the (ii) and no authority to impose (iii) only “direct”.  Nonetheless, as a fulsome set of efforts to assist Applicant and Respondent to reach a meaningful hearing on the merits of their dispute, Noel J.’s efforts reflect the courts’ flexibility and genuine interest in assisting parties to either avoid or focus the disputes with less time and cost. 

Part of those efforts involve ‘directing’ the parties to at least ‘consider’ a key benefit of alternative dispute resolution: retaining an independent, impartial third party “experienced in workplace grievances and the ATIPPA”.  That third party, serving as a mediator, would assist the parties in their discussions and not impose a solution like a justice.

Second, in assuming case management role, Noel J. took on the flexibility expected of arbitrators.  By the nature of their ongoing involvement in the procedural given-and-take, case management judges and arbitrators develop a fuller knowledge of the relevance and materiality of facts/issues and value of proposed procedural steps.  This privileged view is not a default of the court system but is inherent in the arbitral process.

Third, Noel J.’s remarks on costs consequences reflect a key tool exercised in arbitration when, at the end of the process, the arbitrator determines that particular procedural activity was unnecessary.  While not exclusively within the scope of an arbitrator’s jurisdiction or range of tools, costs awards in arbitration can be more accurate given that the arbitrator has been involved in all the procedural steps in the matter.  Having full knowledge of the why, when and how of all the steps, the arbitrator is presumed to have better information on which to allocate and calculate costs.

For a recent statement on the application and calculation of costs under the Rules, see Fong v. Rees, 2020 NLSC 69.

Fourth, the Rules give parties the choice to present an application to strike and, absent unusual reasons, task the court with deciding that application.  The range of options available to the court include summarily dismissing the application.  That said, in order for the court to exercise its option to dismiss the application, the Rules first entitle the parties to the application to engage in steps and to benefit from delays related to preparing, scheduling and presenting the application.  Those steps and delay can be taken if only to then allow the court to summarily dismiss the application or push it back to combine with the merits hearing. 

Fifth, for more on the role of case management masters and the value of ongoing involvement in a matter, see Zeitoun v. Economical Insurance Group, 2008 CanLII 20996 (ON SCDC).  Though given deference, such decisions by masters are subject to greater review than those of arbitrators engaged in consensual arbitration.