BGIS global integrated solutions canada lp Plaintiff And: vision electrical limited First Defendant And: northridge developments ltd. Second Defendant, 2022 NLSC 70

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : BGIS Global Integrated Solutions Canada LP v. Vision Electrical Limited , 2022 NLSC 70 Date : April 13, 2022 Docket : 201901G4134 Between: BGIS global integrated solutions canada lp Plaintiff And: vision electrical limited First Defendant And: northridge developments ltd. Second Defendant Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 12, 2022

Summary: The Second Defendant sought its costs on account of the Plaintiff’s failure to disclose, in time, a wrap-around insurance policy that covered damages caused by the negligence of the Second Defendant and other sub-contractors. It was held that the insurance policy related to the action and ought to have been disclosed without the necessity of having to make an application for that purpose. Costs were awarded under Column III of the Scale of Costs.

Appearances: Erin E. Best Appearing on behalf of the Plaintiff Philip J. Buckingham Appearing on behalf of the First Defendant Stephen J. May, Q.C. Appearing on behalf of the Second Defendant Authorities Cited: CASES CONSIDERED: Carter v. Municipal Construction Ltd. , 2001 NFCA 58 ; Wynn v. Keen , [1988] B.C.J. No. 1112, 10 A.C.W.S. (3d) 209 (S.C.) RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] This is a case involving the potential liability of the Plaintiff for costs in an application made by the Second Defendant for the production of an insurance policy that was to be obtained by the Plaintiff to insure Canada (the owner of the property upon which services were rendered by the Plaintiff and its sub-contractors – the First and Second Defendants), all eligible contractors and sub- contractors under the Plaintiff. [ 2 ] The Plaintiff did not disclose the insurance policy on the basis that it was not relevant and, therefore, need not be produced.

The Plaintiff did not disclose the insurance policy until the First Defendant applied for leave to amend its Defence by referring to the contractual requirement that the Plaintiff was obligated to obtain a blanket wrap-up liability insurance policy that would extend general liability insurance coverage to all eligible contractors and sub-contractors. [ 3 ] By the time the Plaintiff produced the policy to the parties, a hearing date had been set and briefs had been produced and filed. [ 4 ] Both Defendants argued that the test for the production of documents is broader than relevance. analysis [ 5 ] Rule 32.01 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D states: Unless the Court otherwise orders, a party to a proceeding shall, within ten days after the close of the pleadings between an opposing party and the party, or within seven days after the service of the originating document where there are no pleadings, file and serve on the opposing party a list in Form 32.01A of the documents of which the party has knowledge at the time relating to every matter in question in the proceeding and file the list with the Court without a copy of any document being attached thereto. [ 6 ] In Carter v.

Municipal Construction Ltd. , 2001 NFCA 58 , Cameron, JA., on behalf of the Newfoundland and Labrador Court of Appeal, specifically adopted the reasoning of the applications justice, Green, C.J., as he then was, when he stated: It is axiomatic that Rule 32 is to be interpreted liberally in order to effect full disclosure. Having said that, the outer parameters of the obligation to effect full disclosure and to produce a document for inspection are determined by the requirement that the document in question “relate” to a matter in issue in the proceeding. …

The document will be said to “relate” to a matter in question in the proceeding where it is reasonable to suppose it may throw any light on the case in the sense that it contains information which may either directly or indirectly enable the party receiving or seeking the information to advance his or her own case or to damage the case of his or her adversary [or] which may fairly lead him or her to a train of inquiry which may do so.

With all due respect to those who have expressed a contrary view, I do not believe that the test for determining production of documents prior to trial should be tied to the concept of relevance at trial. [ 7 ] Here the document in question is an insurance policy. It is an insurance policy that was obtained to cover the actions of all eligible contractors and sub-contractors who supplied goods and services to the Government of Canada for the provision of a heating system for the Royal Canadian Mounted Police detachment in Nain, Newfoundland and Labrador.

Both Defendants would have an interest in determining whether the wrap-up insurance policy could cover the claim made against them on behalf of the Plaintiff. [ 8 ] In Wynn v. Keen , [1988] B.C.J. No. 1112, 10 A.C.W.S. (3d) 209 (S.C.), at paragraph 12 , it was stated: Absent a specific rule, such as the Ontario Rule, relating to insurance policies, I must equate relating to” as “relevant to the issues between the parties.” To recite the obvious, the existence of insurance coverage by one of the parties to litigation ( unless the insurance coverage itself is one of the issues ) is simply not relevant.

Notwithstanding the salutary purpose of S.C.R. 1(5), it cannot, in my view, enlarge a Rule or make an exception to it, unless such exception or enlargement can be reasonably inferred. [Emphasis added.] [ 9 ] In this matter the presence, or absence, of insurance coverage is one of the issues, if not the main issue. The existence of the insurance policy is germane, if not vital, to the determination of responsibility for the payment for any loss. [ 10 ] The insurance policy ought to have been disclosed without the necessity of making an application for its production.

Both Defendants were unnamed insured parties pursuant to its terms and had, and have, the right to seek indemnification under the policy if they so choose. [ 11 ] The policy of insurance ought to have been disclosed at the outset. Its existence might well negate the necessity of this action proceeding any further. [ 12 ] The Second Defendant shall have its costs under Column III of the Scale of Costs. _____________________________ Vikas Khaladkar Justice