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Facts of the case
Rapid Camp Ltd. is a company that, through one of its directing minds, Peter Ghosn, claims to have developed in 2011–2012 a preliminary architectural and business concept for a “stackable” residential home battery storage system. The technology was intended to operate alongside the local electricity grid, relieve peak electricity usage and provide backup power during outages. Rapid Camp asserts that it combined early technical design work with a business model for developing, licensing, marketing and selling a home battery system branded “Peak Battery Systems.”
In early 2013, Rapid Camp’s representatives, including Mr. Ghosn and Mark Yazbek, met with Nova Scotia Power Inc. (NSPI), and later with Dalhousie University’s Dr. Lukas Swan, to explore using such a home battery system in Nova Scotia. During a February 2013 meeting, Rapid Camp says it disclosed key technical and business aspects of its concept in confidence. The pleading labels this information “Proprietary Information,” but the court notes that this label is not defined and must instead be understood through the specific factual allegations: the architectural and technical design of a residential, stackable battery system; its intended role in grid-levelling and outage mitigation; and an associated business model involving local partners and staged research and commercialization steps.
A central feature of the alleged business model was pursuit of grant funding. The parties discussed applying for an NSERC “Engage” grant to support feasibility work on residential energy storage. According to Rapid Camp, Dr. Swan assisted Mr. Ghosn in drafting an NSERC application (referred to in the decision as the Plaintiff’s NSERC Application), which described the technical concept and business aims that Rapid Camp considered proprietary. The plaintiff alleges that this draft application, signed by Mr. Ghosn on Rapid Camp’s behalf, embodied critical elements of its Proprietary Information.
The Engage grant application that was ultimately submitted to NSERC and approved in July 2013 bore the number 265921201. Rapid Camp claims that, without its knowledge or consent, its draft was altered before submission: references to Rapid Camp were removed, and the final application was signed instead by David McGregor on behalf of NSPI. The plaintiff alleges that, aside from this change, the application was effectively a “word for word” copy of Rapid Camp’s Proprietary Information, thereby misappropriating the concept and falsely presenting NSPI as owner of the underlying ideas and any resulting intellectual fruits of the research.
Rapid Camp further pleads that, for about two years after the grant was awarded, Dr. Swan led it to believe Dalhousie researchers were working on the plaintiff’s project and that endorsement by NSPI would improve the chances of funding. The resulting work under NSERC Grant No. 265921201 generated reports, including “Energy Storage Systems for Residential Load Levelling” and allegedly a “Techno-Economic Study of Residential Battery Storage.” Rapid Camp says these documents, the grant application itself, and subsequent communications all use or expand upon its Proprietary Information.
Several years later, around 2015–2019, Rapid Camp says it discovered that Tesla’s “Powerwall” residential battery was being sold through NSPI in Nova Scotia using marketing language that the plaintiff claims was lifted directly from its confidential materials. It alleges that the defendants used its Proprietary Information in various ways, including in the NSERC grant process and later commercial efforts, without consent and to Rapid Camp’s detriment.
The defendants categorically deny these allegations. Dalhousie University and Dr. Swan maintain that the discussions with Rapid Camp concerned information already in the public domain and Dr. Swan’s prior research, not genuinely confidential or proprietary material originating with Rapid Camp. They say the Engage grant and ensuing feasibility study were focused on assessing the economics and performance of residential battery storage using generally known technology and did not depend on, or exploit, any unique information claimed by the plaintiff. NSPI and Mr. McGregor similarly assert that the concepts at issue were already widely known or public, that no proprietary interest arises, and that technologies like the Tesla Powerwall were independently developed without using Rapid Camp’s ideas.
Procedural posture and relief sought
Rapid Camp commenced its action in October 2021 in the Supreme Court of Nova Scotia against Dalhousie University, Dr. Lukas Swan, NSPI, and David McGregor. The claims include breach of fiduciary duty, misrepresentation, misappropriation and exploitation of confidential and proprietary information, and several economic torts such as intentional interference with contractual relations and business interests. Rapid Camp also seeks declaratory relief over its alleged Proprietary Information and an accounting of profits earned by each defendant in connection with that information.
The decision under discussion is not a trial judgment on liability, but an interlocutory ruling by Justice John A. Keith on a contested motion dealing with disclosure and discovery. Rapid Camp sought orders compelling answers to refused questions from discovery examinations of several witnesses, as well as disclosure of documents and information from two non-parties: the Natural Sciences and Engineering Research Council of Canada (NSERC) and Emera Inc., NSPI’s parent company. The timing of this motion was driven in part by a scheduled defendants’ summary judgment motion set for April 2026, for which the plaintiff wanted the requested information well in advance.
The defendants, NSERC, and Emera opposed the requested relief, arguing that many of the demands were irrelevant, disproportionate, or barred by Crown immunity and privilege. The Attorney General of Canada, on behalf of NSERC, raised statutory provisions and common law principles limiting the ability of a provincial superior court to compel a federal Crown agent to produce documents or answer discovery-type requests when it is not a party to the litigation.
Key legal framework on disclosure and discovery
Justice Keith began by situating the motion within the structure of a typical civil action: pleadings, disclosure, discovery examinations, and trial. The decision focuses on the second and third stages. Under the Nova Scotia Civil Procedure Rules, parties must make full disclosure of relevant documents and electronic information, but this duty is bounded by key constraints: relevance, the more limited obligations of non-parties, and rules respecting privilege and Crown immunity.
On relevance, the court drew from cases such as R. v. Candir, R. v. Calnen, and R. v. L.S., noting that evidence is relevant if it logically makes a material fact more or less probable and if it bears on a live issue in the proceeding. The pleadings are the starting point for assessing what facts are material and thus drive the scope of disclosure. Marginal or artfully framed allegations that go beyond material facts do not broaden the disclosure obligation. Moreover, the question of relevance is ultimately judged from the perspective of the trial judge under Rule 14.01.
With respect to non-parties, the Rules create a mechanism under Rule 14.12 for litigants to compel production of relevant documents from persons who are not parties, but only where specific conditions are met: the moving party must be in compliance with its own disclosure obligations, must show that the non-party production would promote the just, speedy and inexpensive resolution of the proceeding, and must pay reasonable costs unless directed otherwise. Even then, proportionality under Rule 14.08 plays a central role: a judge may limit or tailor the scope of required production to balance cost, burden, and delay against the probative value of the evidence and the importance of the issues. This is especially significant where non-parties “who are strangers to the litigation” should not bear the same burden as parties, and production from them is to be considered a “last resort.”
Privilege and Crown immunity further constrain disclosure. Rule 14.05 confirms that privileged information is not subject to ordinary disclosure obligations, though parties must list such documents in a way that allows them to be identified without undermining the privilege. Beyond privilege, the rule acknowledges the court’s role in adjudicating claims under sections 37–39 of the Canada Evidence Act, which allow a minister or other official to object to disclosure on public interest grounds in specified circumstances. In relation to NSERC, the Attorney General relied primarily on the doctrine of Crown immunity, as informed by that Act, the Crown Liability and Proceedings Act (CLPA), and the Interpretation Act.
Crown immunity and NSERC’s position
NSERC, as a federal Crown agency, argued that it could not be compelled, as a non-party, to produce documents or answer the plaintiff’s information requests. The Attorney General accepted that where the Crown is a party—because it has been named and is subject to the CLPA—federal entities must follow the same provincial rules of disclosure as other litigants. However, NSERC was not a party here.
Relying heavily on the Supreme Court’s decision in Canada (AG) v. Thouin, the Attorney General submitted that the CLPA does not eliminate Crown immunity in situations where the Crown is not a party. Section 27 of the CLPA, which requires the Crown to follow provisions of provincial law relating to practice and procedure, applies only when the Crown is sued. In the absence of clear and unequivocal legislative language to the contrary, long-standing Crown immunity from being compelled to provide evidence in proceedings to which it is not a party remains intact. Section 17 of the Interpretation Act reinforces the principle that legislation does not bind the Crown unless it expressly says so.
NSERC also pointed to provisions of the Access to Information Act and the Privacy Act as statutory bases for redacting or withholding certain records, including personal and third-party confidential information. It argued that forced production could undermine the confidentiality needed for NSERC’s research funding processes and expose it to liability for misuse of confidential material received in confidence.
Rapid Camp countered by pointing to s. 14(4) of the NSERC Act, which provides that actions, suits or other legal proceedings “in respect of any right or obligation acquired or incurred by the Council” may be brought by or against NSERC in any court that would have jurisdiction if NSERC were not an agent of the Crown. The plaintiff argued that its disclosure motion fell within the phrase “other legal proceedings” and that NSERC was sufficiently “involved” in the underlying dispute (through Grant No. 265921201) that it should be subject to the court’s disclosure and discovery jurisdiction. It also invoked s. 34(a) of the CLPA—which refers to proceedings “by, against or involving the Crown”—to support a broad reading of when the Crown can be drawn into litigation procedures.
Justice Keith rejected the plaintiff’s interpretation. Applying Thouin, he held that Crown immunity continues to shield NSERC from non-party production in the absence of an express and unequivocal legislative waiver. He reasoned that reading s. 14(4) of the NSERC Act as an implicit waiver for disclosure motions where NSERC is not a party would effectively nullify the Supreme Court’s reasoning in Thouin and amount to a general, unintended surrender of Crown immunity. The reference to “right or obligation acquired or incurred by the Council” in s. 14(4), in the court’s view, presupposes an existing right or obligation, not a waiver of immunity that would create those obligations in the first place in relation to non-party disclosure.
The decision also concludes that mere extensive reference to NSERC or its grant in the pleadings does not override Crown immunity. Neither the NSERC Act nor NSERC’s research-ethics frameworks contained language that could reasonably be read to abrogate immunity for non-party disclosure. Consequently, the motion compelling NSERC to produce a broad range of documents—unredacted access-to-information records, internal discussions, portal notes, and communications with a long list of individuals—was dismissed in its entirety.
Importantly, the court acknowledged that defendants who hold NSERC-related documents in their own possession, custody, or control are not protected by Crown immunity simply because those documents relate to NSERC. To address that gap, during the hearing the defendants’ counsel undertook that their clients would disclose all communications to and from NSERC specifically related to Engage Grant Application No. 265921201, including the application, amendments, and decision or award documents, subject only to redaction of NSERC’s internal communications. Justice Keith treated that undertaking as binding. If the defendants later claim privilege or Crown immunity as grounds to withhold specific documents, they must still describe the withheld records sufficiently to allow them to be identified and, if necessary, challenged.
Non-party disclosure requests to Emera Inc.
Rapid Camp also sought broad disclosure from Emera Inc., the parent company of NSPI and a non-party to the action. Requests included all documents, correspondence, and emails regarding NSERC Engage Grant No. 265921201, materials concerning the “Energy Storage Systems for Residential Load Levelling” report, and wide-ranging particulars about Emera’s involvement in various energy storage projects and partnerships, including Tesla Powerwall installations in Barbados and Nova Scotia.
The court emphasized that compelling comprehensive production from Emera would not satisfy the “last resort” standard articulated in NSCA cases such as Intact Insurance v. Malloy and Laushway v. Messervey. Justice Keith noted that the primary obligations remain with the parties—NSPI and Mr. McGregor—and there was no evidence Emera was resisting, or would resist, reasonable searches performed by Mr. McGregor using his Emera email accounts. As a result, the broad non-party disclosure requests directed at Emera were largely dismissed.
Instead, the judge accepted a more targeted approach proposed by Emera’s counsel: Mr. McGregor must search his Emera email account for specific, reasonably framed search terms closely tied to the alleged Proprietary Information and NSERC Grant No. 265921201, including combinations such as “NSERC” with the grant number and the title “Energy Storage Systems for Residential Load Levelling.” These searches, along with others outlined in Emera’s draft order, were found to be reasonable, proportionate and consistent with the defendants’ existing disclosure obligations, without burdening Emera itself with wide-ranging non-party production.
Treatment of discovery refusals and relevance boundaries
A substantial portion of the court’s work involved evaluating individual refusals from discovery examinations of NSPI representative Jill Searle, defendant David McGregor, and Dalhousie witnesses Dr. Lukas Swan and Dr. Alice Aiken. The court assessed each question or request against the defined scope of the Proprietary Information and the Rules’ relevance and proportionality standards.
Some refusals were upheld. For example, Rapid Camp sought details about whether Dr. Swan had separate agreements with Dalhousie regarding research, student supervision, or external partnerships beyond the collective agreement. Justice Keith dismissed this as irrelevant: the live issue is whether Dr. Swan misappropriated and exploited the plaintiff’s confidential information, not the broader terms of his employment or academic contracts. Similarly, several Emera requests that essentially sought oral or narrative “particulars” of Emera’s commercial activities (such as confirming involvement and investment in Tesla or Novonix) were characterized as discovery questions, not document disclosure, and were denied because Emera is a non-party.
Other refusals were set aside or narrowed. The court held that NSPI and Mr. McGregor must produce any documents in their possession showing that Mr. McGregor’s transfer from NSPI to Emera was prompted by, or connected to, exploitation of the plaintiff’s alleged proprietary information. Mr. McGregor must also identify his employer and job title while working in Barbados and answer questions about his role there to the extent that work involved use of the Proprietary Information. NSPI and McGregor are required to search for and produce emails and communications (including from Emera accounts) relating directly to the defined Proprietary Information, using search terms that reasonably capture that scope.
In relation to Dalhousie and Dr. Swan, the court ordered production of documents in accordance with the defendants’ earlier undertaking concerning NSERC Grant No. 265921201 and indicated that, where redactions are maintained on the basis of Crown immunity, enough detail must be provided to make the withheld material identifiable. The same logic applies to NSPI’s obligation to search for other NSERC Engage grants involving companies like Tesla or Siemens: production is required only to the extent that those other grants incorporate the plaintiff’s Proprietary Information or replicate content from the core grant that is the subject of this litigation.
Outcome and implications
Justice Keith’s decision balances the plaintiff’s need for information to pursue its misappropriation and economic tort claims against the legal limits on compelling non-party participation and the overarching principle of proportionality in modern civil procedure. The court carefully narrows the contested concept of “Proprietary Information” to the specific technical and business features pleaded by Rapid Camp and uses that definition as the organising tool for determining what is relevant and what falls outside the permissible scope of disclosure and discovery.
On the key question of NSERC’s position, the court concludes that Crown immunity shields NSERC, as a non-party, from the plaintiff’s broad disclosure requests. The entire set of direct production demands against NSERC is dismissed, with the assurance that relevant information held by the defendants themselves will be produced pursuant to their undertakings, subject to recognized claims of privilege or immunity. As for Emera, the court declines to order sweeping non-party disclosure and instead places the search burden squarely on party-defendant David McGregor, who must mine his Emera email accounts for documents that directly relate to NSERC Grant No. 265921201 and the plaintiff’s alleged Proprietary Information. Various specific discovery refusals are upheld or relaxed in line with these principles and are set out in detail in Schedule “A” to the decision.
In formal terms, the motion for disclosure directly from NSERC is dismissed, and the court orders the defendants and Emera (through Mr. McGregor’s searches) to produce certain categories of documents and answers on or before January 30, 2026. The judge expressly refrains from characterizing any party as the “successful” or “unsuccessful” party on the motion and explicitly reserves the issue of costs for later determination. As there is no final adjudication of liability, no damages are awarded; and at this stage, no specific amount of costs or other monetary award has been ordered in favour of any party, meaning the total monetary award in this decision cannot yet be determined.
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Supreme Court of Nova ScotiaCase Number
Hfx, No. 509991Practice Area
Corporate & commercial lawAmount
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