Brad Cabana Plaintiff And: His Majesty the King in Right of Newfoundland v. Labrador, 2023 NLSC 125

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Cabana v. Newfoundland and Labrador , 2023 NLSC 125 Date : September 26, 2023 Docket : 201201G5779 Between: Brad Cabana Plaintiff And: His Majesty the King in Right of Newfoundland and Labrador First Defendant And: Kathy Dunderdale Second Defendant And: Terry French Third Defendant Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 25, 2023

Summary:

The Court refused an application by the Plaintiff to recall the Second Defendant as a witness. Appearances: Brad Cabana Appearing on his own behalf G. Todd Stanley, K.C. and Kyle Mercer Appearing on behalf of the First Defendant John F.E. Drover Appearing on behalf of the Second and Third Defendants Authorities Cited: CASES CONSIDERED: Griffi v. Lee (2007), 156 A.C.W.S (3d) 803, 2007 CarswellOnt 2231 (Sup. Ct.); R. v. Bussey, 2014 NLCA 18;R. v. Hayward (1993), (ON CA), 86 CCC (3d) 193, 1993 CarswellOnt 1162 (C.A.); R v.

Cloutier, (SCC), [1979] 2 S.C.R. 709 RULES CONSIDERED: Rules of the Supreme Court of Newfoundland and Labrador, 1986, S.N.L. 1986, c. 42, Sch. D STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] In 2012, Mr. Cabana issued a statement of claim against the respondents alleging defamation, negligence and breach of hisrights under the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act1982 (U.K.), 1982, c. 11. The claims arose from comments made during a call-in radio show by the third defendant, Terry French (amember of the Newfoundland and Labrador House of Assembly at the time), and the subsequent response of the second defendant,Kathy Dunderdale, who was then Premier of the Province. He claims damages for defamation and psychological injury. [2] This decision addresses an application by Mr. Cabana to recall Ms. Dunderdale who testified in the trial of this matter onFebruary 16, 2016. [3] Upon being called as a witness by Mr. Cabana, Ms.

Dunderdale testified on her role and responsibilities as leader of the PCParty, Member of the House of Assembly (“MHA”) and Premier of the Province. She was also questioned on her role and responsibilityin relation to Mr. French and comments he made about Mr. Cabana on the VOCM Open Line call-in radio show (“Open Line”). [4] On March 8, 2019, during the adjournment of the trial, Ms. Dunderdale appeared on the CBC television program Power &Politics (“Power & Politics”), along with other current and former female premiers, to discuss issues of women in politics.

Ms.Dunderdale and the other panelists discussed an item then in the news relating to what was known as “the SNC-Lavalin affair” and thetreatment of the former Attorney General for Canada, Jody Wilson-Raybould, by members of her own caucus and cabinet. [5] Mr. Cabana seeks to question Ms. Dunderdale further because he alleges that her comments on Power & Politics contradict hertestimony at trial. He also claims that he was denied procedural fairness during his examination-in-chief of Ms. Dunderdale.

issues [ 6 ] I must decide the following issues: a. Should Ms. Dunderdale be recalled for further examination because of her comments on Power & Politics? b. Was Mr. Cabana denied procedural fairness during his examination-in-chief of Ms. Dunderdale? discussion and analysis The Law [ 7 ] The issue of whether a witness can be recalled for further examination is governed by Rule 46.01(2) of the Rules of the Supreme Court of Newfoundland and Labrador, 1986 , S.N.L. 1986, c. 42, Sch.

D , which states: Evidence by a witness 46.01(2) The Court may at any stage of the trial direct that a witness be recalled for further examination. [ 8 ] No cases from this jurisdiction commenting upon Rule 46.01(2) were cited by the parties. [ 9 ] In Griffi v. Lee (2007), 156 A.C.W.S (3d) 803, 2007 CarswellOnt 2231 (Sup. Ct.), at paragraph 12 , Justice Quinn of the Ontario Superior Court of Justice set out a list of factors a court should consider when deciding whether to permit the recall of a witness: In Griffi v.

Lee , supra, at paras. 13-27, I listed factors that a court should consider when deciding whether to permit the recall of a witness. I will summarize them here for convenience: (

a) It is fundamental, under subrule 53.01(3), for the moving party to clearly explain why it is proposed that a witness be recalled. (

b) In the presumably rare event that counsel for a moving party fails to explain why it is necessary to recall a witness, leave should not be granted. (

c) Where counsel for a moving party has made a conscious and informed decision to conduct his or her case in a certain fashion and then, perhaps because things are going badly, wishes to take a different approach requiring additional evidence from a witness who has already testified, a court probably should not grant leave particularly where the decision is rooted in tactics. (

d) When considering an explanation as to why a witness is to be recalled, the court must be mindful of maintaining the integrity of the Rules of Civil Procedure. (

e) In circumstances where counsel for a moving party misapprehends the law and conducts his or her case consistent with the misapprehension, leave is likely to be granted so long as irreparable prejudice is not caused to the other side. (

f) If recalling a witness is necessary to correct some other mistake, such as a misapprehension of the evidence, leave should be granted, however, again, only where there will be no irreparable prejudice to the opposite party. (

g) Where counsel for a moving party, through inadvertence, omits to ask a question or questions of a witness, leave should be granted if, to do so, will not cause irreparable prejudice to the other side. (

h) Has an intervening event rendered further questions of a witness necessary? (

i) It is not sufficient that counsel for a moving party desires to put a few more questions to a witness. Recalling a witness is not meant to allow a litigant to polish his or her case. Instead, it is intended to cure a material omission in the evidence of a party such that, to refuse leave, will create the reasonable risk of a complete failure of justice based upon the court record as it stands at the time (in other words, a miscarriage of justice).

(

j) What will be the effect upon the opposing party, if leave is given to a moving party to recall a witness? Costs and an adjournmentwill cure most instances of prejudice to the opposing party. (

k) In the end, after all factors have been considered, one should step back, look at the whole picture and ensure that a proper balanceis struck between the accountability of counsel and the interests of justice. Will the decision of the court be fair overall? [10] It appears that Ontario’s Rule 53.01(3) is substantively the same as our Rule 46.01(2), in that it provides trial judges with widediscretion to recall witnesses at any stage of the trial. [11] In R. v. Bussey, 2014 NLCA 18, the Newfoundland Court of Appeal affirmed the test set out in R. v.

Hayward (1993), (ON CA), 86 CCC (3d) 193, 1993 CarswellOnt 1162 (C.A.), for situations in criminal matters where the defence appliesto reopen its case before a decision has been rendered. Although the case at bar is a civil matter and the application is one to recall awitness and not to reopen a case, the situations are analogous and the test in Bussey provides assistance when deciding whether to recall awitness. [12] Bussey sets out a three-pronged test for reopening a case: a. The trial judge "should first be satisfied that the proposed evidence is relevant to a material issue in the case" (page 197); b.

If so, "the trial judge must consider the potential prejudice to the other party should he or she permit the reopening of the evidence"(page 198); and finally, c. The trial judge "must also consider the effect of permitting a reopening of the evidence on the orderly and expeditious conduct ofthe trial" (page 198). This component must be considered in the context of ensuring the defendant's right to make full answer and defencewhile taking into account fairness to both the defendant and the Crown. [13] Subject to the proviso that the explanation provided under factor (

a) above discloses that the proposed re-examination willadduce evidence relevant to an issue at trial, I adopt the factors listed by Quinn J. in Griffi for the purposes of this decision. They are,perhaps, distilled down to three factors in the Bussey test. [14] Relevance is the starting point. To be relevant, evidence must assist the trier of fact in determining whether a material fact inissue is more or less likely to have occurred (R v. Cloutier, (SCC), [1979] 2 S.C.R. 709, at paras. 72 and 87). The Nature of the Proposed Further Questioning [15] What is the material fact in question that Mr.

Cabana wishes to prove through further questioning of Ms. Dunderdale? As Iunderstand it, he hopes to show that her comments on Power & Politics contradict her evidence at trial, thereby undermining hercredibility. He also seeks to establish that government leaders have a responsibility to discipline members of their house, bolstering hisclaim in tort. [16] Mr. Cabana contrasts Ms. Dunderdale’s statement on Power & Politics with her testimony at trial. During the interview, Ms.Dunderdale stated, “people in the caucus were purported to be saying well, [Jody Wilson-Raybould] was difficult to get along with.

Youknow she… they started a bit of character assassination”. She then noted “… and the Prime Minister should’ve shot that down rightaway because that’s what happens to women” (see Transcript of Power & Politics interview, attached as Exhibit A to the Affidavit ofJohn Drover, sworn July 31, 2023). [17] At trial, Ms. Dunderdale was asked by Mr. Cabana if she was responsible for the conduct of the MHAs while she was Premierof Newfoundland and Labrador.

She responded that she was not responsible for the conduct of MHAs (see Transcript of examination-in-chief, attached as Exhibit B to the Affidavit of John Drover sworn July 31, 2023). [18] Mr. Cabana has pleaded that Ms. Dunderdale owed him a duty of care to comply with the Code of Conduct that applies toMHAs. That Code requires MHAs to perform their duties with, among other things, “courtesy, honesty and integrity”. That is, Mr.Cabana alleges that by failing to sanction Mr. French for his comments about him, Ms.

Dunderdale has breached a duty owed to him atlaw, the breach of which has caused him to suffer damages. It remains to be seen whether any such duty of care exists at law. For thepurposes of this application, however, it is sufficient to say that the evidence of what Ms. Dunderdale may or may not have said onPower & Politics is not relevant to the issues raised in this case. [19] More than three years after her testimony at trial, Ms. Dunderdale appeared on the broadcast.

There she provided commentaryas a private citizen, albeit as a woman with leadership experience in government, about a public matter concerning a woman serving atthe federal level in Canadian politics. [20] Ms. Dunderdale expressed an opinion as to what she thought the Prime Minister should have done when a female member ofhis caucus was being undermined by caucus members. That has no bearing on the matters at this trial. [21] The squabble between Mr. Cabana and Mr. French arose in the context of each vying for election. It did not arise out of Mr.French’s duties as an MHA or as a cabinet member. Ms.

Dunderdale answered Mr. Cabana’s questions exploring her role in the conductof MHAs. Her testimony was not contradicted by her opinions relating to the Prime Minister and his caucus. [22] Mr. French was a member of Ms. Dunderdale’s caucus; Mr. Cabana was not. In the context of the forum of Open Line, Mr.French and Mr. Cabana were political adversaries. Ms. Dunderdale responded to another question asked at trial by Mr. Cabana: There is a cut and thrust to politics, Mr. Cabana. You were in the political arena. There was a dialogue happening between you and Mr.

French, through the open Line show that was rancorous and certainly not tempered but you were equals in the arena, and in terms of impugning his [ sic ] integrity I didn’t feel that Mr. French had done that. [Transcript of Evidence appended to the Brief of the Second and Third Plaintiffs, at page 84.] [ 23 ] Ms. Dunderdale was clear in her evidence that she saw the contretemps between Mssrs. Cabana and French as belonging in the political arena and not being something for which she was responsible in her role as Premier. [ 24 ] Ms.

Dunderdale did testify, however, as to behaviour that she would not tolerate, presumably in her role as leader of the PC party or as Premier. Mr. Cabana has alleged that he was subjected to intimidation by members of the PC party relating to his decision to run for the leadership of that party. She testified that she had the matter investigated and was satisfied that no threats were made. In the media she was quoted as saying, “further to that, I would never tolerate that kind of behaviour”.

On the stand she clarified, testifying: What I was referring to was I would not have somebody on my campaign or supporting me that would use those kinds of tactics. In terms of MHAs, I am not the employer of MHAs. They’re responsible to their constituents and I have no ability to hire or fire an MHA. [Transcript of Evidence appended to the Brief of the Second and Third Plaintiffs, at pages 79-83.] [ 25 ] It is clear from the foregoing that Ms. Dunderdale understood her various roles and that, in the appropriate context, would not hesitate to “shoot down” offensive behaviour.

She saw her role vis-à-vis campaign worker and supporters as being different than her responsibility with respect to MHAs. Consequently, any view expressed by her as to what a different first minister should have done relating to alleged internecine strife within his caucus is not relevant to whether Ms. Dunderdale owed (and breached) a duty of care to Mr. Cabana. That is, further questioning of Ms.

Dunderdale on what she said on Power & Politics will not undermine her credibility and it will not assist me in determining the proof of any material fact in issue in this trial. [ 26 ] From Griffi and Bussey , we see that when exercising the discretion to require a witness to be recalled or for a case to be reopened, the judge is required to balance fairness to the applying party, the integrity of the Rules , and prejudice to opposing parties. In most instances, the last of these can be cured by some combination of an adjournment and costs. [ 27 ] Here, however, we have a trial that commenced in 2016.

It has been unduly delayed for various reasons. Eventually, it was scheduled to be completed over five days commencing on September 25, 2023. Subsequently, Mr. Cabana raised the prospect of recalling Ms. Dunderdale. I required that an application be filed and that the parties provide briefs, with the matter to be heard on the first day of the rescheduled trial. Thus, one of the scheduled five days has already been consumed by the hearing of the application and me providing this decision. [ 28 ] Mr.

Cabana’s case is scheduled to be concluded with the completion of the cross-examination and the re-examination of his psychologist (which is anticipated to be lengthy). She will be followed by his wife testifying as to the damages he has allegedly suffered resulting from the Defendants’ wrongful behavior. Mr. Cabana will then testify as to both liability and damages (certainly we can expect his testimony to take up to two days). Based on my experience with the trial to date, I have calculated that we will be fortunate to complete the scheduled testimony in the time allocated. [ 29 ] Having Ms.

Dunderdale testify further would almost certainly delay the matter further. Each of the parties has been prejudiced by the delay in having this matter completed; further delay should not be countenanced if it is not absolutely justified. [ 30 ] Given the proposed further testimony by Ms. Dunderdale is not relevant and that recalling her will likely cause further delay, I have decided that this is not a situation where I should exercise my discretion to allow her to be recalled. The Rule 46.02(3) Issue [ 31 ] Mr. Cabana also claims that I limited his opportunity to, in effect, cross-examine Ms.

Dunderdale as an opposing party called by him to testify, contrary to Rule 46.02(3). Rule 46.02 provides: 46.02.

(1) The Court shall exercise reasonable control over the mode of interrogation of a witness so as (

a) to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and (

b) to protect the witness from undue harassment or embarrassment.

(2) A party may interrogate an unwilling or hostile witness by leading questions.

(3) A party may call an adverse party or an officer, director or manager of an adverse party and may interrogate the adverse party by leading questions and contradict and impeach him or her in all respects as if the party had been called by the adverse party and such witness may also be contradicted and impeached by or on behalf of the adverse party but may be cross-examined by such adverse party only upon the subject matter of the examination-in-chief.

(4) The Court may disallow any question put in cross-examination of any witness that appears to the Court to be vexatious and not relevant to any matter proper to be inquired into in the proceeding. [ 32 ] Mr. Cabana suggests that he was not given the full force of Rule 46.02(3) during his examination-in-chief of Ms. Dunderdale. Thus, he says, Ms. Dunderdale should be recalled to be subjected to further questioning by him given that he was not given full reign the first time. [ 33 ] A review of the transcript shows that at one point during Mr. Cabana’s examination of Ms.

Dunderdale, her lawyer complained that many questions asked by Mr. Cabana were leading in nature. I addressed it by suggesting that Mr. Cabana rephrase the question. Without further comment, he did, and the examination continued. Rule 46.02(3) was not raised. [ 34 ] My review of the transcript also shows that many of Mr. Cabana’s questions of Ms. Dunderdale were leading in nature. This is true both before and after the objection raised by her counsel. Because he is a self-represented litigant, I have attempted to provide Mr.

Cabana with as much latitude as is consistent with my overall duty to maintain trial fairness for all of the parties. The interaction in question occurred more than seven years ago. Since then, Mr. Cabana has raised a number of issues before the Court of Appeal concerning the manner in which I conducted the trial. By raising the issue of Rule 46.02(3) now he is essentially asking me to sit on an appeal in respect of my management of the trial. I am not prepared to do so. conclusion [ 35 ] Mr. Cabana’s application to recall Ms.

Dunderdale is dismissed with costs to the Second and Third Defendants on Column 3 of the Scale of Costs. The First Defendant made no submissions on the application and so shall bear its own costs. _____________________________ Robert P. Stack Justice