Health Quest Inc. Plaintiff/ Defendant by counterclaim And: Arizona Heat Inc. Defendant/ Plaintiff by counterclaim - v. -, 2018 NLSC 64

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Health Quest Inc. v. Arizona Heat Inc. , 2018 NLSC 64 Date : March 22, 2018 Docket : 201101G1080 Between: Health Quest Inc. Plaintiff/ Defendant by counterclaim And: Arizona Heat Inc. Defendant/ Plaintiff by counterclaim - AND - Docket : 201501G3070 BETWEEN: HEALTH QUEST INC. PLAINTIFF AND: ARIZONA HEAT INC. FIRST DEFENDANT AND: RATAN HOLDINGS INC. SECOND DEFENDANT Before: Justice Donald H. Burrage Edited Transcript of Oral Reasons for Judgment

Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 14, 2018 Date of Oral Judgment: March 15, 2018

Summary: The Plaintiff’s request for late filing of an expert report, contrary to a previous Order of the Court, was denied. The Defendants weregiven an extended time to respond to a Notice to Admit, served on them ten days prior to the trial. Appearances: Darren D. O'Keefe Appearing on behalf of the Plaintiff Megan C. Taylor John A. Bruce Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Consbec Inc. v. Newfoundland and Labrador (Minister of Transportation and Works), 2015 NLTD(G) 68;Tarrant v.

Manufacturers Life Insurance Co.(1993), (NL SC), 113 Nfld. & P.E.I.R. 162, 353 A.P.R. 162 (Nfld. S.C.(T.D.)) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] I have taken the evening to review the file, the case law provided by the Plaintiff, Health Quest Inc. (“HQ”), and to considerthe able submissions of counsel. [2] Suffice it to say that from a review of the file it is apparent that the matter before me has had a long and somewhat torturoushistory.

There have been multiple Court appearances, applications and Orders, on what is a relatively straightforward contract dispute, towhich negligence was thrown into the mix on the first day trial. These culminated in the 6 June 2017 Order of Justice Orsborn, whereinhe scheduled the trial to begin on 12 March 2018, this past Monday.

Justice Orsborn also directed that a pre-trial conference be held nolater than one month prior to trial. [3] Some six months prior to that Order, on 24 January 2017, the parties found themselves before Justice Butler on an applicationby Arizona Heat Inc. (“AH”) and Ratan Holdings Inc. (“RH”) to place the matter on the pre-trial list. Justice Butler adjourned thatapplication to 28 March 2017, but in so doing made the following Order: 1) The Respondent [H.Q.] shall have 30 days from the date hereof to serve Interrogatories on the Applicants;

2) The Respondent shall have 60 days from the date hereof to provide the Applicants with any expert report or reports that theRespondent intends to rely upon at trial; 3) The Applicant’s Application dated January 9, 2017 and heard on January 24, 2017 shall be set over until March 28, 2017 at10:00 a.m. [4] The Order of Justice Butler could not be clearer. It was an Order, to borrow from the language of Justice Marshall inConsbec Inc. v. Newfoundland and Labrador (Minister of Transportation and Works), 2015 NLTD(G) 68, that was solely for the benefitof the parties.

Deadlines were set for service of Interrogatories and the provision of expert reports by HQ. [5] In compliance with that Order, on 24 March 2017, HQ provided AH and RH, through its counsel, with a three-page reportfrom Ms. Pauline Downer. In the cover letter to the report, HQ wrote that it intended to rely on the report at trial.

However, the coverletter went on to read, as follows: While we do not expect any additional reports to be filed, we may have an update/addendum to this report which we will provide to youas soon as it becomes available. [6] With the greatest respect, this purported caveat flies in the face of Justice Butler’s Order. Without an amendment to thatOrder, HQ could not unilaterally extend the date for filing its expert report under the guise of an “update or addendum”.

No amendmentto the Order was sought, however, prior to trial. [7] Yet on 28 February 2018, just ten days prior to trial, HQ provided counsel for the AH and RH with what I am informed is a26 page “revised” expert report from Ms. Downer. There is an issue with how this report was served, via email, but as counsel for AHand RH acknowledges its receipt, I need not rule on the adequacy of service for the purpose of this decision. [8] Subject to Ms. Downer being qualified at trial, HQ now applies for a ruling on whether it may rely on the revised report,stating that it is critical to its case.

In effect, in the final hour of the third day of the trial, I am being asked to amend Justice Butler’sOrder. While HQ did not state its application in these terms, it cannot be otherwise, for to admit the report now would be contrary to itsexpress terms. That as the trial judge I have the discretion to amend the Order is not in issue. But should I? [9] Counsel for HQ related that in setting the matter down for trial on 7 June 2017, Justice Orsborn expressed some concernsregarding the three page expert report provided on 24 March 2017. (Let me be clear.

I offer no comment on the adequacy, or otherwise,of that report.) Therefore, according to HQ it was only natural to expect it to provide a revised report. This may be the case, but it doesnot explain the nine-month lapse between then and now and why an application to submit a revised report was not brought sooner. Ifsuch an application had been brought, timelines might have been set to provide AH and RH with an appropriate time to respond. [10] Nor is it an answer for HQ to say that at a pre-trial conference on 12 February 2018, AH and RH did not complain when theywere told that a revised report was coming.

As Justice Butler’s Order was for the benefit of the parties, it would have been open forthem to seek to amend it by consent, and as Justice Marshall observed in Consbec, it would be unusual for the Court not to agree in thosecircumstances. It may have been that upon receipt of the revised report AH and RH would have agreed. However, that is not the case. [11] If the revised report is critical to HQ’s claim, as it maintains, it logically follows that the ability of AH to respond must beequally critical to its defence.

To revise Justice Butler’s Order now, so as to open the door to the admission of this report today, wouldplace AH at a distinct disadvantage, a disadvantage that Justice Butler’s Order sought to avoid. That is not trial fairness, to coin a phrasefrom Chief Justice Green in Tarrant v. Manufacturers Life Insurance Co.(1993), (NL SC), 113 Nfld. & P.E.I.R. 162,353 A.P.R. 162 (Nfld. S.C. (T.D.)). [12] At the request of counsel, five days were set aside for this trial and we are now at day four with only one witness havingtestified.

I am advised by counsel that the evidence cannot be concluded in the two days remaining and that an adjournment of the trialto a future date is inevitable. [13] If the amendment to Justice Butler’s Order is granted, counsel for HQ has expressed the willingness to call other fact witnessesnow and leave its expert until the trial resumes, so as to give counsel for AH and RH time to prepare. This prospect has a superficialappeal, but is it sufficient to restore the balance of trial fairness?

After considered reflection, I have concluded that it is not. [14] Our Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D are designed to promote trial fairness through the process ofdocument disclosure, discovery, exchange of interrogatories, expert reports and so forth, not only prior to trial, but in most cases beforesigning the Certificate of Readiness and entry onto the pre-trial list. In this regard, I note that Justice Butler’s Order regarding expertreports was but one of several Orders directed towards trial fairness. Gone are the days of trial by ambush.

In reliance on the disclosurebefore trial, litigants strategically prepare their case, the introduction of exhibits, the line of questioning for the witnesses to come and soforth. In this case, both parties were entitled to rely on the disclosure ordered and provided. In particular, in its preparation, AH and RHwas entitled to rely on the expert report it had been provided in compliance with Justice Butler’s Order. [15] We are now at a juncture where HQ’s main fact witness has been subject to three days of questioning, apportioned equallybetween direct and cross-examination.

If the revised report is admitted, will AH and RH be entitled to discover the expert on the revisedreport? If so, what use may be made of the evidence already presented at trial? How might its questioning of that witness have beendifferent? May AH and RH prepare its own report in reply?

Where does it end? [16] It is not an answer to adjourn this trial, or to use a forced adjournment after critical evidence has already been called, to enableAH and RH to in effect play “catch up” on a report they should have had a year previous. [17] To permit the expert’s report to be filed mid-trial, when the trial resumes, would open a Pandora’s box where the preservation

of trial fairness is anything but certain. [ 18 ] For the foregoing reasons, the application of HQ to amend the Order of Justice Butler is denied. Any expert reports to be relied upon by it must be in conformity with that Order. [ 19 ] There is an ancillary matter raised by the parties regarding a Notice to Admit sent by HQ via email to AH and RH’s counsel on 1 March 2018, which I am advised is some 76 pages in length.

As counsel acknowledges receipt of the Notice, like the expert report, I leave for another day the adequacy of email service. [ 20 ] Rule 33.02(2) specifies that the responding party shall reply within the time specified in the Notice, which in any event shall be no less than 10 days, unless the Court otherwise orders. While there is nothing in the Rules to prohibit service of a Notice to Admit at any time, service in close proximity to trial, or even during trial, is surely to serve as a distraction to counsel preparing for trial.

Service of a lengthy Notice to Admit 10 days before trial, does nothing to promote trial fairness. I cannot help but observe that this claim dates from 2010, some eight years ago. THE COURT: Mr. Bruce, how long were you given in the Notice to Reply? MR. BRUCE: Ten days. THE COURT: And how long do you reasonably need in which to reply? MR. BRUCE: It’s difficult for me to answer that because I only scanned the thing to be quite honest with you. I would suggest to the Court that frankly a Notice to Admit is a bit late at this stage of the game because the factual evidence, as you pointed out, has been in there.

So let them prove their case, not – THE COURT: I’m not going to entertain argument – MR. BRUCE: I’m sorry. THE COURT: How long do you need in which to reply? MR. BRUCE: It’s difficult to say. As you have suggested, it’s not getting back to trial until the fall. So in the interim, can we have 60 days if need be? And if you’re going to order that it be done, could you ask counsel for Health Quest to provide a bound copy? THE COURT: You mean a hard copy? MR.

BRUCE: Yes, a hard copy, sorry. [ 21 ] It is further ordered with respect to the Notice to Admit that HQ shall provide counsel for AH and RH with a hard copy of the Notice and that AH and RH shall reply to that Notice to Admit no later than 27 April 2018. [ 22 ] As this matter arose during the course of trial, and there was no material delay in the trial as a consequence, there will be no Order as to costs. _____________________________ Donald H. Burrage Justice