New World Dairy Inc. Plaintiff And: John Gerard (Gerry) Pumphrey First Defendant And: Madore Enterprises Ltd. Second Defendant v. Between:, 2022 NLSC 63

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : New World Dairy Inc. v. Pumphrey , 2022 NLSC 63 Date : April 06, 2022 Docket : 201004T0210 Between: New World Dairy Inc. Plaintiff And: John Gerard (Gerry) Pumphrey First Defendant And: Madore Enterprises Ltd. Second Defendant AND Between: John gerard (gerry) pumphrey Plaintiff by counterclaim And: new world dairy inc. First Defendant by counterclaim And: chaffey’s dairy farm inc. second Defendant by counterclaim

And: brent chaffey third Defendant by counterclaim Before: Justice Peter N. Browne Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: March 29, 2022 Date of Oral Judgment: March 29, 2022

Summary: The Plaintiff made application to bifurcate the trial issues of liability and remedy. The remaining parties consented to the application. The Court held the Plaintiff had established the burden of demonstrating it was just and convenient to order separate trials. Appearances: Dean A. Porter Appearing on behalf of the Plaintiff and the First, Second and Third Defendants John Gerard (Gerry) Pumphrey Appearing on his own behalf Deanne M. Penney Appearing on behalf of the Second Defendant Authorities Cited: CASES CONSIDERED: Elliott (guardian ad litem of) v. Western Health Care Corp. , 2003 NLSCTD 147 ; Nauss v. Rushton , 2001

NSSC 167; John Doe (GEB #36) v. Roman Catholic Episcopal Corp. of St. John's, 2015 NLTD(G) 81; Winter (c.o.b. Atlantic WasteManagement) v. Newfoundland, 2005 NLCA 66; and Furlong Estate v. Newfoundland Light & Power Co. (2000), (NL SC), 195 Nfld. & P.E.I.R. 120, 586 A.P.R. 120 (Nfld. S.C.(T.D.)) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] The Plaintiff, New World Dairy Inc. (“New World”), seeks bifurcation of the issues of liability and remedies pursuant to Rule38.01(1)(

f) of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D (“different . . . issues to be tried by different modes . . .”). [2] The Second Defendant, Madore Enterprises Ltd. (“Madore”), supports the application. The First Defendant/Plaintiff byCounterclaim, John Gerard (Gerry) Pumphrey (“Pumphrey”), is self-represented and did not make written submissions. Following oralargument from counsel, he indicated his support for the application.

The Defendants by Counterclaim, New World, Chaffey’s DairyFarm Inc. (“Chaffey’s Dairy”) and Brent Chaffey (“Chaffey”) also support the application. [3] Counsel argue the facts of the case lend themselves to the exercise of judicial discretion to grant the application on the basis ofthe “just and convenient” test. [4] The pleadings describe the liability issue as one of ownership regarding a parcel of land approximately 91 acres in size locatedin the community of Maidstone, NL. [5] The remedies sought by New World are: a. permanent injunction restraining the First and Second Defendants from selling the land; b. a declaration that the deed from Pumphrey to Madore is fraudulent and void; c. special damages to be assessed for the development of the land; and d. general, exemplary and punitive damages for depravation of rights to the land. [6] The remedies sought by Pumphrey by counterclaim are: a. diminution in value of the land; b. rent for the use of the land for the period of 2002 - 2010; c. an accounting; and d. punitive and exemplary damages.

ISSUE [7] The sole issue for determination is whether New World has met the burden of establishing that it is just and convenient toorder separate trials. POSITION OF THE PARTIES New World/Chaffey’s Dairy and Chaffey [8] New World alleges that in the fall of 2001 Pumphrey made an “oral agreement” with Chaffey (CEO of New World) to transferthe property to New World. The agreement was subject to New World clearing the land and determining an amount suitable foragricultural purposes.

Once determined, it would pay Pumphrey $325 per acre and stumpage fee of $7 per cord of wood. [9] In 2002 New World went on the property and harvested the wood which it subsequently sold. Afterwards, it developed theproperty for agricultural purposes. It alleges that, by agreement, the conveyance of the land was delayed. During this delay, New Worldclaims it sold Pumphrey a Hough Loader for $2,500 and a 48 foot refrigerated trailer for $10,000, both of which were to be deductedfrom the purchase price. [10] New World occupied the property continuously from 2002 - 2010.

In early 2010, New World noticed a high bed trailer parkedon the property by Madore stating it was private property. On April 29, 2010, New World sent an email suggesting the sale be concludedby May 1, 2010. They did not receive a response but were later told by Pumphrey the property was sold to Madore. New World says it

invested $275,000 in developing the property during the time period it occupied the property [ 11 ] A deed registered May 6, 2010 conveyed the property to Madore. New World has not been able to farm the property, with the exception of 2017 and 2018 when it was granted an interim injunction and had to pay monies into court. Madore [ 12 ] Madore claims it is the legal owner of the land as it paid Pumphrey $41,112 on April 23, 2010. Accordingly, New World has no claim at law. It disputes the depiction of the facts provided by New World in its application.

Pumphrey [ 13 ] Pumphrey claims he gave Chaffey, in his personal capacity, permission to enter on the land to develop it in exchange for payment for each acre developed and per cord of wood cleared. The sale of the land was to be determined at a future date once the precise boundaries were determined. At no point did he have negotiations with New World or Chaffey’s Dairy. [ 14 ] Negotiations between Pumphery and Chaffey continued over a number of years but were unsuccessful so Pumphrey sold the land to Madore on April 23, 2010.

Common ground between the parties [ 15 ] The parties agree on the following facts and considerations regarding the trial on liability: a. that Pumphrey was the legal title holder, therefore, the sole issue for the court to decide on liability is who is the successor in title, Madore or New World? b. that severing liability from remedy would shorten trial time and the costs for the parties; c. that evidence regarding liability would be limited to Chaffey, Pumphrey and Scott Madore, CEO of Madore (i.e. two to three days); d. that evidence regarding remedy will require substantially more trial time and cost including expert evidence (i.e. five to seven days); and e. that a decision on liability may lead the parties to a resolution without the need for a trial on damages.

THE LAW [ 16 ] A review of the jurisprudence from this province regarding the guidelines to be considered when exercising discretion on a request for bifurcation points to the reasons of my colleague LeBlanc, J. in Elliott (guardian ad litem of) v. Western Health Care Corp. , 2003 NLSCTD 147 , at para. 16 , where he referred to the Nova Scotia case of Nauss v. Rushton , 2001 NSSC 167 : [16] In Nauss v. Rushton , [2001] N.S.J. No. 466 (N.S.S.C.T.D.) , Hall J. summarized guideline criteria related to severance of liability and damages based upon various decided cases in Nova Scotia as follows:

(1) The general rule is to try all issues together. . . .

(2) It is a basic right of a litigant to have all issues in dispute resolved in one trial, particularly where the trial is by jury.

(3) The issues may be severed where it is just and convenient to do so. . . .

(4) The courts should now be more ready to grant separate trials than they used to. . . .

(5) In order to determine what is just and convenient, the court must consider the effect of a severance of the issues on all the parties as well as its effect on the court system. . . .

(6) The applicant for a severance has the burden of establishing by a preponderance of evidence that it is just and convenient to order separate trials. . . .

(7) Only in the rarest and most unique of situations where the trial is to be by jury should a severance be allowed. . . .

(8) Severance should not be ordered where significant issues are interwoven such as credibility. . . .

(9) Severance may be granted when the issue to be tried is simple. . . .

(10) Severance may be granted where there is some evidence that it is probable that the trial of the separate issue will put an end to theaction. . . .

(11) Severance should be considered where it appears that an application for an interim payment of damages under Civil Procedure rule33.01 would bejustified. . . . [17] In the more recent decision John Doe (GEB #36) v. Roman Catholic Episcopal Corp. of St. John's, 2015 NLTD(G) 81, mycolleague, Adams, J. citing Winter (c.o.b. Atlantic Waste Management) v. Newfoundland, 2005 NLCA 66, noted that in the rightcircumstances bifurcation can offer significant benefits especially where there is agreement among the parties (see John Doe at para.23).

ANALYSIS [18] As noted by LeBlanc, J. in Elliott, the starting premise for the exercise of the Court’s discretion begins with the principle that aparty has the right to have all issues tried at the same time and only in the exceptional case will bifurcation be granted (see FurlongEstate v. Newfoundland Light & Power Co. (2000), (NL SC), 195 Nfld. & P.E.I.R. 120, 586 A.P.R. 120 (Nfld. S.C.(T.D.)), at para. 9).

However, it is not necessary for the applicant to show exceptional circumstances (see Elliott at para. 20). [19] In the present case, there is common ground between the parties that the trial on liability will be simple and short (seeguideline (9) of Nauss). The parties also agree that it is probable severance will put an end to the action (see guideline (10) of Nauss). [20] In circumstances where the parties agree to a severance of liability and remedy, a court should be more inclined to grantseparate trials (see guidelines (4) and (5) of Nauss).

This approach was adopted by our Court of Appeal in Winter at para. 16: 16 Bifurcation of a civil trial, that is the separation of liability and quantum by agreement of the parties and with the consent of the court,is common in this Province where jury trials are not the norm. The benefits of separating liability and quantum can be considerable incases where the evidence respecting damages is not intertwined with that relating to liability: 1. It furthers the goal of judicial economy because the trial is shortened, if no liability is found.

Even if liability is found, the length ofthe trial may still be shortened as there may be a settlement once liability has been decided. 2. Costs to the parties are reduced, as the trial relating to damages will not proceed if no liability is found. Even if liability is found, theparties may settle some or all issues of damages. Thus, bifurcation can aid in the expeditious and economical resolution of civil cases. [21] In view of the above facts and analysis, I am prepared to exercise my discretion in favour of bifurcation.

New World hasdischarged its burden and established that it is “just and convenient” to the parties and the court system that there should be separatetrials on liability and remedy (see guidelines (5) and (6) of Nauss). DISPOSITION [22] The application by New World pursuant to Rule 38.01(

f) is granted. The issues of liability and remedy will be severed. Giventhe position of the parties on the substance of the application, there will be no order as to costs. _____________________________ Peter N. Browne Justice