JANE DOE (#8) Plaintiff And: HER MAJESTY IN RIGHT OF NEWFOUNDLAND v. LABRADOR, 2021 NLSC 117

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jane Doe (#8) v. Newfoundland and Labrador , 2021 NLSC 117 Date : September 17, 2021 Docket : 201701G7570 Between: JANE DOE (#8) Plaintiff And: HER MAJESTY IN RIGHT OF NEWFOUNDLAND AND LABRADOR Defendant Restriction on Publication: By court order dated November 27, 2017, information that may identify the plaintiff shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Deborah J. Paquette Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: April 16, 2021 Appearances: Lynn M. Moore Appearing on behalf of the Plaintiff David L. Hearn Appearing on behalf of the Defendant

Authorities Cited: CASES CONSIDERED: Hryniak v. Mauldin, 2014 SCC 7; Brook Construction

(2007) Inc. v. North Atlantic Cement and ConstructionLtd., 2020 NLCA 42; Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405A.P.R. 317 (Nfld. S.C.(T.D.)); R. v. Gardner and Fraser, 2021 NSCA 52; R. v. F. (J.), 2008 SCC 60 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Paquette J.: INTRODUCTION [1] The applicant asks the Court to find the respondent liable in negligence for physical and sexual abuse she suffered during herchildhood in foster care.

The parties have filed their List of Documents and an examination for the discovery of the applicant was held28 February 2019. Both counsel confirmed that they were in a position to file a Certificate of Readiness for trial. The applicant appliesto have the matter heard by way of a

summary trial pursuant to Rule 17A of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42,Sch. D, instead of a conventional trial. Rule17A.01(1) provides: 17A.01.

(1) A plaintiff or defendant may, after defence has been filed and at any time prior to the proceeding being placed on a trial list,apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all or partof the claim in the statement of claim, as the case may be. ANALYSIS [2] The Supreme Court of Canada explained the role of

summary proceedings in facilitating access to justice in Hryniak v.Mauldin, 2014 SCC 7 at paras. 1-2: 1 Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensiveand protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot affordto go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.

Without public adjudication ofcivil cases, the development of the common law is stunted. 2 Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordableaccess to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from theconventional trial in favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure andaccess struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair andjust. [3] Hryniak was a case involving allegations of civil fraud and a request for

summary judgment. The trial judge’s decision toenter

summary judgment was upheld by the Supreme Court of Canada.

Summary trials are not restricted by subject matter. [4] The Newfoundland and Labrador Court of Appeal considered the application of Rule 17A in Brook Construction

(2007) Inc. v.North Atlantic Cement and Construction Ltd., 2020 NLCA 42, which instructs with respect to the appropriate analysis to be undertakenon a

summary trial application. [5] Brook Construction identified a threshold question to be addressed by the trial judge prior to embarking on the two-stageanalysis set out in Rule 17A (paragraphs 34-35): 34 Procedurally, the case law that has been developed in applying rule 17A recognizes that there is a threshold question that, in theabsence of consent by both parties, the court may deal with before addressing the questions whether there is a genuine issue for trialand/or whether the matter can, even if there is a genuine issue, nevertheless be dealt with by

summary trial. See Marco Ltd. v.Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 308, 55 A.C.W.S. (3d) 277 (Nfld. T.D.)[Marco No. 1] at para. 5; Young v. Noble, 2016 NLCA 58 (N.L. C.A.), 1 C.A.N.L.R. 197 at paras. 21-28; L.H.E. v. D.A.E., 2019 NLCA66 (N.L. C.A.) at paras. 12-13. 35 This threshold consideration, when raised by a party or the judge, is whether in all the circumstances it is “appropriate” to hear thesummary trial application (Marco No. 1). In Dalley v. Northern Arm (Town), 2016 NLTD(G) 68, 381 Nfld. & P.E.I.R. 286 (N.L.

T.D.),Butler J., parsing the analysis in Marco No. 2 at para. 76, # 3 and 7, described the threshold question as consisting of two sub-questions:(

i) whether on the face of the application the applicant has brought himself or herself within the formal requirements of the rule, and (ii)whether, even if he or she has done so, it would be appropriate to deal with the issues presented by way of

summary trial as opposed to aconventional trial or some other means of disposition.

[6] The threshold analysis examines whether the applicant has brought herself within the formal requirements of Rule 17A. TheCourt will consider the applicant’s record to determine whether the information filed “without considering anything more” establishesthe claim (Brook Construction at para. 36). Brook Construction cautions, however, that the threshold inquiry is not the place to embarkon a detailed analysis of the record, writing at paragraph 43: 43 The question of the adequacy of the record to enable an adjudication by way of

summary trial to be achieved fairly in thisjurisdiction is built into the

summary trial analysis in rule 17A itself (see rule 17A.03(2)). It does not need to be duplicated as part of thethreshold analysis. That said, there may be cases where it is obvious at the threshold stage, from the nature of the intertwining of theissues, the apparent length and complexity of the case, and the potential for lengthy and possibly conflicting viva voce evidence that willnecessarily involve credibility assessments, that a

summary trial would be inappropriate. In such cases, it is not inappropriate to weedsuch cases out at the threshold stage. But such situations must be obvious from the outset. The real fight on record-adequacy should inmost cases be left for the application of the second stage of the

summary trial rule itself. [7] The analysis does not end there. The second sub-question in the threshold analysis is whether “it may be inappropriate to dealwith the issues by way of

summary trial” within the meaning of Rule 17A.03(2)(b) (Brook Construction at para. 37). [8] Considerations in the threshold analysis include, but are not limited to, an assessment of the parties, i.e., whether there aremultiple parties, third party proceedings, and self-represented litigants with divergent interests. Length of proceedings, complexity of thelitigation, or the degree to which credibility issues may be involved, may also signal a conventional trial at the threshold stage (BrookConstruction at para. 94). In short, the threshold analysis is focused on whether the

summary trial process should even be invoked. [9] Having considered both sub-questions, I take into consideration that there are only two parties in which the legal issue ofnegligence is advanced and no expert witnesses anticipated. I can find no reason to dismiss the

summary trial application on a thresholdanalysis. [10] Having so decided, I must now consider the two-stage analysis set out in Rule 17A.03(2)(

a) and (

b) as explained in BrookConstruction at para. 77: 77 Accordingly, there being no other reason raised for not allowing the

summary trial application to proceed, the judge was justifiedin not dismissing the application on a threshold analysis. It was proper in these circumstances to proceed to determine whether there wasa genuine issue for trial and, if not, grant judgment to North Atlantic or, if there was a genuine issue, to go on and consider whether heshould determine the issues in the context of a

summary trial instead of a conventional trial. If so, he was then mandated to proceed tomake an appropriate disposition. [11] Rule 17A.03(2)(

a) requires assessment as to whether there is a genuine issue for trial. Relying on earlier jurisprudence, MarcoLtd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.)), Brook Construction at para. 29 addresses how to approach whether there is a genuine issue for trial: 29 In Marco No. 2, the existence of a genuine issue was described as follows: [76] … 9.

There will be a “genuine issue for trial” if the issue in question is not spurious and the issue relates to a material fact orpoint of law that is necessary to be decided to resolve the ultimate controversy between the parties. Obviously, there will not be agenuine issue for trial if the responding party can put forward no evidence that could constitute either a defence or a claim in law. [12] The finding that there is a genuine issue for trial, however, does not automatically place the matter in the category of asummary trial.

Green J.A., writing for the majority, in Brook Construction at paras. 31-32 explains: 31 The converse situation — the identification of one or more genuine issues — does not however necessarily result in dismissal ofthe application and the ordering of a conventional trial. The second stage of the

summary trial process requires the court to go on andconsider whether it can nevertheless deal with the matter and grant judgment on an issue or generally unless, in the words of rule17A.03(2): (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide thequestions of fact or law; or (

b) it would be unjust to decide the issues on the application. 32 Effectively, this means that if the record is sufficient to enable adjudication to be made fairly to both sides (i.e. “there is asufficient evidentiary backdrop against which findings of fact can be made and in which there are no material unanswered questions”:Marco No. 2 at para. 76, #13), the court should proceed to do so. This approach has been reinforced in recent years by the decision of theSupreme Court of Canada in Hryniak v.

Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.), which emphasized the utility of usingsummary trials as a means of improving the efficiency of civil justice. For a more detailed discussion of considerations relevant to

determining whether the record is sufficient to enable the court to find the facts necessary to decide some or all of the extant questions offact or law and whether it would be otherwise unjust to decide the issues on the application, see Marco No. 2 at para. 76, # 13-16. [13] The issue as to whether there is a genuine issue for trial engages consideration as to whether the judge can make the necessaryfindings of fact and apply the requisite law to those facts and is also a “proportionate, more expeditious and less expensive means toachieve a just result” (Hryniak at para. 49). [14] Applying these facts, the applicant submits that she has met the burden of proof on a balance of probabilities for each of theelements of the tort of negligence: that she was owed a duty of care by the respondent while a child in the custody and care of theDirector of Child Welfare; that the standard of care was that of a reasonably prudent parent; that the duty of care was breached and thatthis breach caused her damages.

She asserts that the respondent has not put forward any evidence to dispute the facts as were provided inthe examination for discovery and the documentary evidence relating to her care in the foster home. She advances that the establishmentof the standard of care, that of a reasonably prudent parent, does not require expert evidence. [15] Following the close of proceedings, counsel for the applicant brought to the Court’s attention, a decision of the Nova ScotiaCourt of Appeal, R. v. Gardner and Fraser, 2021 NSCA 52.

Two special constables had been convicted by a jury of criminal negligencein the death of an inmate. While not an adjudication of the civil standard engaged here, the Nova Scotia Court of Appeal referenced theanalytical framework for the common law offence of negligence at paragraph 6: 6 The common law imposes a duty on everyone to use the care of a reasonably prudent individual where a failure to do so willforeseeably cause harm to another.

If that duty is breached and harm results, the person harmed can sue to be put back in the sameposition, as far as money damages can, as they were before the harm. [16] Gardiner considered R. v. F. (J.), 2008 SCC 60, as having endorsed the modified objective test for all allegations of criminalnegligence. The accused foster parent had been acquitted of manslaughter for failure to provide necessaries of life, but was convicted ofmanslaughter by criminal negligence for the “very same omission” (at paragraph 36).

Beveridge J.A. wrote: 36 … As Fish J., for the majority explained, the verdicts were not only inconsistent, but incomprehensible because criminalnegligence requires a higher fault element — a marked and substantial departure from the norm of a reasonable person versus simply amarked departure for the failure to provide necessities of life (para. 11). [17] The necessary fault elements for the two offences was explained by Justice Fish as cited at paragraph 37 of Gardner: 37 Justice Fish explained the different fault elements for the two offences as follows, both to be assessed from an objective point ofview: [7] The fault element required for conviction at trial was essentially common to both counts of manslaughter.

On count 1, therequisite fault element was that of the underlying offence of criminal negligence; on count 2, the requisite fault element was that offailure to provide the necessaries of life. Neither criminal negligence nor failure to provide the necessaries of life requires proof ofintention or actual foresight of a prohibited consequence.

Under both counts, the jury was required to determine not what the respondentknew or intended, but what he ought to have foreseen. [8] On the count alleging failure to provide necessaries, the Crown was bound to establish that the respondent’s failure to protecthis foster child represented “a marked departure from the conduct of a reasonably prudent parent in circumstances where it wasobjectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanentendangerment to the health, of the child”: R. v.

Naglik, (SCC), [1993] 3 S.C.R. 122, at p. 143 (emphasis added).

It willlater become apparent why I have emphasized the word “risk” in this description of the offence by the Chief Justice, speaking for theCourt on this point. [9] On the count alleging criminal negligence, the Crown was bound to show that the respondent’s very same omissionrepresented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent incircumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave nothought to that risk: R. v.

Tutton, (SCC), [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.). [10] The difference between a marked departure and a marked and substantial departure has been considered in several appellatedecisions since Naglik and Tutton, mainly but not exclusively in the context of driving offences: See, for example, R. v. Willock (2006), (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.); R. v. L. (J.) (2006), (ON CA), 204 C.C.C. (3d) 324(Ont. C.A.); R. v. Palin (1999), (QC CA), 41 M.V.R. (3d) 11, 135 C.C.C. (3d) 119 (Que. C.A.); R. v.

Fortier (1998), (QC CA), 41 M.V.R. (3d) 221, 127 C.C.C. (3d) 217 (Que. C.A.); R. v. Brown (2000), (ON CA),134 O.A.C. 151; R. v. Baker (2006), (ON CA), 209 C.C.C. (3d) 508 (Ont. C.A.); R. v. E. (A.) (2000), (ON CA), 146 C.C.C. (3d) 449 (Ont. C.A.). This case does not turn on the nature or extent of the difference between the twostandards.

[Emphasis in original.] [18] The required mental element is reiterated at paragraph 59, citing F. (J.) at para. 67: 59 … [67] The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accusedrepresented a marked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the samecircumstances.

The conduct must represent a marked departure because, as Lamer C.J. indicated: “Unlike negligence under civil law,which is concerned with the apportionment of loss, penal negligence is concerned with the punishment of moral blameworthiness” (R. v.Gosset, (SCC), [1993] 3 S.C.R. 76, at p. 93). As Charron J. stated: “The degree of negligence is the determinativequestion because criminal fault must be based on conduct that merits punishment” (Beatty, at para. 35). Thus, “penal negligence punishesa marked departure from an objectively reasonable standard of care” (R. v.

Naglik, (SCC), [1993] 3 S.C.R. 122, at p. 142(emphasis in original)). … [19] The conduct of a reasonably prudent parent was considered in the accused’s failure to protect his foster child, incorporating thenecessary criminal law standard that such omission was a “marked and substantial departure (as opposed to a marked departure) fromthe conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk tothe life of his child or, alternatively, gave no thought to that risk” (emphasis in original) (at paragraph 61). [20] Beveridge J.A. also discussed the establishment of the standard of care at paragraphs 67 to 69 and 72: 67 For any trier of fact to wrestle with the issue of whether the acts or omissions of an accused amounted to a marked and substantialdeparture from the requisite standard of care requires awareness of what that standard is and how it is established. 68 Where criminal negligence is alleged to have been committed by a parent or a driver, expert evidence about the requisite standardof care is unnecessary since jurors do not need to be informed about what constitutes reasonable prudent conduct for a driver or a parent.Those are nontechnical matters of everyday common experience (see, for example: R. v.

Clark, 2020 ABCA 356). 69 In civil litigation that alleges negligent conduct by a member of a trade or profession, the general rule is evidence from someonewith expertise in that occupation or undertaking is usually necessary in order for the trier of fact to determine the parameters of thestandard of care (see for example: Krawchuk v. Scherbak, 2011 ONCA 352 at para. 124 et seq (a real estate agent), leave to appealrefused [2011] S.C.C.A. No. 319; Roy v.

British Columbia (Attorney General), 2005 BCCA 88 (police officers); Camaso Estate v.Saanich (District), 2013 BCCA 6 (police officers), leave to appeal dismissed [2013] S.C.C.A. No. 92; Bergen v. Guliker, 2015 BCCA283 (police officers); 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656 (police officers). … 72 In civil cases, the failure to identify the appropriate standard of care constitutes legal error (see Krawchuk v. Scherbak, at para.123; Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5 at para. 80).

In criminal cases with the life and liberty of the accused at stake,it cannot be any less so. [21] I accept that the law does not require that the applicant call an expert witness in relation to the actions of a reasonably prudentparent and that the respondent cannot defeat her record for

summary trial suitability on that basis alone. [22] The applicant submits that the respondent has not put forward any evidence to dispute the facts she has provided by way of herexamination for discovery and the documentary evidence relating to her care in the foster home.

She submits that the affidavit filed bythe respondent is from an individual without personal knowledge, serving simply to place the historic record before the Court, andsubmits that statements in the record to the effect that the “child appeared to be content in the foster home” cannot support a request forcross-examination and cautioned the Court with respect to the reliability of the records, noting that the social worker at the time hadincorrectly described the child’s eye colour.

She counters that the government reporting into the applicant’s circumstances had failed theapplicant in its brevity and infrequency. The applicant relies on the examination for discovery as constituting a satisfactory record forthe Court and provides ample opportunity for the respondent to cross-examine the applicant. [23] The respondent counters that they have advanced a genuine issue for trial in opposing proceeding by way of

summary trial. Affidavit evidence was filed by the Manager of Information Services, Policy, Planning and Information Management Division of theDepartment of Children, Seniors and Social Development, Government of Newfoundland and Labrador, who provided records of theDepartment in relation to the applicant. These records recite information from social workers in relation to the applicant’s placement inthe foster home and subsequent adoption procedure. The respondent submits that evidence would be available to the Court in a

conventional trial through the examination and cross-examination of the applicant, which would address the discrepancy between the written records and the examination for discovery proceedings. The respondent submits that its opposition to the record and this application is not a personal challenge of the applicant’s credibility but in the interests of justice, the opportunity to adjudicate the matter in a conventional trial will permit a more complete evidentiary assessment of the claim given the contradictions in the record.

It follows, from the respondent’s perspective, that a direct examination followed by cross-examination would facilitate resolution of the conflicts within the records and the applicant’s examination for discovery. The respondent also disputes the applicant’s position that her examination for discovery, a fact-finding exercise, is a sufficient basis from which to conduct cross-examination.

It is advanced that the inconsistencies between the progress reports and the applicant’s examination for discovery could benefit from conventional trial evidentiary assessment and ensure a complete record is before the Court. [ 24 ] Having reviewed the record and the legal framework within which the evidence must be assessed, I am satisfied that there is a genuine issue for trial. [ 25 ] I must now turn my mind to Rule 17A.03(2), i.e., does the record before the Court (

i) contain the facts necessary to decide the applicable questions of fact and law; and (ii) would it be unjust to decide them in a

summary proceeding ? [ 26 ] Hryniak instructs that an appropriate question for the trier of fact is whether better evidence would be available at a conventional trial (at paragraph 58). [ 27 ] In the course of these proceedings, the respondent stated that it would be necessary to cross-examine the applicant in order to properly address the facts set out in her affidavit. The applicant’s counsel responded by stating that in the event cross-examination was permitted, she would in turn seek to have the applicant present for direct examination first.

This statement contradicts her position that the Court can rely solely on the applicant’s examination for discovery. The Statement of Claim presents facts alleging a childhood of sexual and physical abuse while in the care of the respondent, and it is understandable that her counsel would wish that any cross- examination of her affidavit be preceded within a contextual format permitting her prior direct testimony. While the parties did not indicate the time that would be required for the direct and cross-examination of the applicant, the requests by the parties for same do align with a conventional trial process.

This evidentiary factor favours a conventional trial. [ 28 ] I am also persuaded that a conventional trial is appropriate given that both counsel supported the conduct of a settlement conference as soon as possible. This important step is not available in the context of a

summary proceeding. CONCLUSION [ 29 ] For the foregoing reasons, I conclude, based upon my analysis of Rule 17A.03, that the record before the Court favours a conventional as opposed to

summary proceeding. Costs shall be in the cause. _____________________________ Deborah J. Paquette Justice