2015 NBCA 43, 2015 NBCA 43

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 44-14-CA THE WAWANESA MUTUAL INSURANCE COMPANY (Defendant) APPELLANT LA COMPAGNIE MUTUELLE D’ASSURANCE WAWANESA (Défenderesse) APPELANTE - and - - et - SHIRLEY WADE (Plaintiff) RESPONDENT SHIRLEY WADE (Demanderesse) INTIMÉE The Wawanesa Mutual Insurance Company v. Wade, 2015 NBCA 43 La Compagnie mutuelle d’assurance Wawanesa c.

Wade, 2015 NBCA 43 CORAM: The Honourable Justice Deschênes The Honourable Justice Bell The Honourable Justice Green CORAM : l’honorable juge Deschênes l’honorable juge Bell l’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: April 14, 2014 Appel d’une décision de la Cour du Banc de la Reine : le 14 avril 2014 History of case: Decision under appeal: 2014 NBQB 96 Historique de la cause : Décision frappée d’appel : 2014 NBBR 96 Preliminary or incidental proceedings: [2014] N.B.J.

No. 131 Procédures préliminaires ou accessoires : [2014] A.N.-B. n o 131 Appeal heard: September 30, 2014 Appel entendu : le 30 septembre 2014 Judgment rendered: July 16, 2015 Jugement rendu : le 16 juillet 2015

Reasons for judgment by: The Honourable Justice Green Motifs de jugement : l’honorable juge Green Concurred in by: The Honourable Justice Deschênes The Honourable Justice Bell Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Bell Counsel at hearing: For the appellant: Jade A. Spalding and Ryan P. Burgoyne For the respondent: Justin Robichaud Avocats à l’audience : Pour l’appelante : Jade A. Spalding et Ryan P. Burgoyne Pour l’intimée : Justin Robichaud THE COURT The appeal is dismissed, with costs of $3,500 on the appeal, and $1,000 on the leave application, payable to the respondent.

LA COUR L’appel est rejeté avec dépens de 3 500 $ en appel et de 1 000 $ en ce qui concerne la demande en autorisation d’appel, dépens payables à l’intimée. The judgment of the Court was delivered by GREEN, J.A. I. Introduction [ 1 ] A judge of the Court of Queen’s Bench, pursuant to a Notice of Motion filed by Shirley Wade, was asked to resolve a dispute between Ms. Wade and her insurer, Wawanesa, which arose during the examination for discovery process. The judge ruled in favour of Ms. Wade and with leave of the Court, Wawanesa appeals that decision. II.

Background [ 2 ] Shirley Wade, the respondent, was injured in a motor vehicle accident on April 1, 2005. At all material times, she held a standard automobile insurance policy with the appellant, Wawanesa Mutual Insurance Company. Her policy provided coverage for loss of income. The action underlying this motion is grounded in a claim for loss of income benefits. [ 3 ] For a period of 162 weeks, commencing April 1, 2005, Wawanesa paid Ms. Wade loss of income benefits in the amount of $250 per week. Effective May 9, 2008, Wawanesa ceased the payments. [ 4 ] On June 4, 2008, Ms.

Wade commenced an action against her insurer. She alleges Wawanesa failed to pay the benefits owing to her under the terms of her policy. She further alleges Wawanesa has acted in bad faith in administering her claim.

[ 5 ] On March 17, 2009, a judge of the Court of Queen’s Bench, Trial Division, granted an order bifurcating the entitlement to benefits issue from the other relief being sought. Examination for Discovery respecting the entitlement issue was completed on December 9, 2009. A Pre-Trial Settlement Conference was scheduled for April 4, 2012. Prior to the settlement conference, Wawanesa reinstated Ms.

Wade’s benefits on a retroactive basis. [ 6 ] Although Wawanesa reinstated loss of income benefits retroactively, the company determined the quantum of benefits previously paid was calculated incorrectly, and reduced the weekly payment to an amount of $114 per week. This reduction was also made retroactive. As justification for its decision, Wawanesa maintained Ms. Wade had misrepresented “her true pre-accident income”. [ 7 ] A Consent Order dated October 18, 2012, vacated the Bifurcation Order, and the parties were ordered to proceed with Examination for Discovery with respect to the amount of Ms.

Wade’s weekly benefits and all other issues set out in the Statement of Claim. [ 8 ] At the time of the hearing of the motion which underlies this appeal, two issues remained unresolved: the determination of the bad faith claim; and the determination of the amount of loss of income benefits Ms. Wade is entitled to pursuant to the terms of her policy. These two matters are to be tried together. [ 9 ] Examination for Discovery, now focused on the bad faith claim, continued on March 26, 2013. Counsel for Ms. Wade made several requests for undertakings.

Wawanesa refused or took under advisement and subsequently refused certain of those requests, and it is these refusals which lie at the heart of the dispute now before us. Specifically, Ms. Wade sought the following: 1. For each of the past five years before the termination of benefits to advise as to the number of policy holders that received benefits from the Defendant Wawanesa pursuant to the policy like the one issued to the Plaintiff; average the length of time the benefits were received and the actual length of time the benefits were received in the Province of New Brunswick; 2.

For each of the last five years, provide the Defendant’s net worth, gross assets, net income or loss, and the net operating income or loss from the sale of policies similar to the policy that is the subject of the Plaintiff’s action, and copies of the financial statements, annual reports, or documents supporting same; 3. Regarding VTL Consulting, to advise how many times they have been retained by the Defendant Wawanesa in New Brunswick; and 4. Confirmation of the amount of times the Defendant Wawanesa have referred

Section B claimants to the Atlantic Pain Clinic for assessments and/or treatments as well as the total amount paid to the Atlantic Pain Clinic for same in the last five years, or an authorization for the Plaintiff to contact the Atlantic Pain Clinic for same. [ 10 ] With respect to VTL Consulting, the basis of Wawanesa’s refusal was that the request was not relevant and was in the nature of a fishing expedition. The rationale for rejecting the remaining requests was set out in a letter from counsel for Wawanesa dated July 4, 2013. It states: 1.

The information requested is not relevant and does not relate to the Defendant’s handling of the Plaintiff’s claim; 2. The requested undertakings are not proportionate pursuant to Rule 1.02.1 as they entail a large expenditure of time and expense by the Defendant to gather this information when it is unlikely to produce any relevant information; and 3. In relation to Undertaking #11 and the Plaintiff’s request for information relating to the Atlantic Pain Clinic, the Statement of

Claim does not include any allegation that Wawanesa’s reliance on the Atlantic Pain Clinic or any other expert was done in bad faith orthat the Atlantic Pain Clinic’s report was biased by their relationship with Wawanesa. Therefore, there is no basis in the pleadings for thisrequest. [11] The next pertinent point in this litigation took place on November 29, 2013, with the filing of a Notice ofMotion by Ms.

Wade, the thrust of which was twofold: she sought to amend her Statement of Claim pursuant to the applicable Rules ofCourt, and she sought to have Wawanesa provide “a further and better Affidavit of Documents” disclosing the documentation targeted inthe requests for undertakings the company had refused to provide on discovery. [12] For contextual purposes, I deem it prudent to reproduce key paragraphs from the Amended Statement of Claim,as they provide a clear understanding of the direction in which counsel for Ms. Wade had chosen to pursue her claim against Wawanesa.They are as follows: 16.

The Defendant, Wawanesa, retained the services of VTL Consulting to conduct a Transferable Skills Analysis and relied upon sameto terminate benefits to the Plaintiff, Shirley Wade, when they knew, or ought to have known, that VTL Consulting only conducted apaper review and they did not take into consideration all of the standard variables which should form part of a Transferable SkillsAnalysis. Furthermore, they selected VTL Consulting for the purpose of denying the claim. 17.

The defendant, Wawanesa, directed the treatment plan of the Plaintiff, Shirley Wade, by referring her to the Atlantic Pain Clinic fortreatment and by interfering in and manipulating the Atlantic Pain Clinic’s treatment plan. Furthermore, they selected the Atlantic PainClinic for the purpose of denying the claim. 20. The Plaintiff, Shirley Wade, states that the Defendant, Wawanesa, has acted in bad faith in administering her claim for benefits, theparticulars of which include the following, namely: (

l) The Defendant used a physician selected for the purpose of denying the claim, not the purpose of obtaining fair, unbiased appraisalof the claim; (

m) The Defendant failed to obtain appropriate medical opinions before the denial of the benefits; (

o) The Defendant failed to repair, revise and adjust their claims practices based on prior bad faith claims; (

p) The Defendant trained, designed and distributed manuals and training materials designed to train their adjusters how to investigatefor the purpose of denying those claims, and these manuals and materials were applied to improperly deny the Plaintiff’s claims; (

q) The Defendant created, implemented, utilized and followed [policies], guidelines, procedures, directives, protocols and/or claimsmanuals leading to a course of conduct whereby the Plaintiff was treated as an adversary and was to [sic] put under emotional,psychological and financial duress in an effort to minimize and/or estimate the claim made payable to the Plaintiff, contrary to theDefendant’s duty of good faith[.] [13] At the hearing of the motion, Wawanesa opposed in part the proposed amendments to the Statement of Claim,specifically 20(

o) and (

p) as set out above. Wawanesa consented to the remaining proposed amendments. The motion judge found Ms.Wade’s argument persuasive and relied upon Pic Realty Canada Limited and Rocca Group Limited v. Disher (1982), (NB CA), 42 N.B.R. (2d) 41, [1982] N.B.J. No. 299 (C.A.) (QL), per Stratton J.A.; Béchard v. Ouellet (1999), (NBCA), 210 N.B.R. (2d) 246, [1999] N.B.J. No. 145 (C.A.) (QL), per Drapeau J.A. (as he then was); as well as Enbridge Gas NewBrunswick Inc. v. Modern Construction

(1983) Limited, 2003 NBCA 78, 264 N.B.R. (2d) 145, per Drapeau C.J.N.B. The motion judgeheld “the Plaintiff’s request for leave to amend her Statement of Claim is a reasonable one in the circumstances and is fully supported bythe Rules of Court and the relevant case law” (para. 25). Wawanesa elected not to pursue this matter on appeal. III. Issues [14] Wawanesa alleges three errors on the part of the motion judge as its grounds of appeal:

1. in determining the information sought by Ms. Wade related to “matters in issue in the action” pursuant to Rule 31.02(1) and (2); 2. in ordering that financial information of Wawanesa be produced prior to liability being established; and 3. in finding Ms. Wade’s requests were proportionate pursuant to Rule 1.02.1 and in “failing to consider the appropriate principlesrelating to electronic discovery”. IV. Law and Analysis A. Matters in Issue [15] At the heart of the procedural dispute between the parties lies Rule 32.06(1), which sets out in general termsthe framework for the discovery process.

It directs any person being examined for discovery shall answer, not may answer, any properquestion relating to an issue in the action underway. Thus, expressed in the simplest of terms, the parameters are that the questions posedmust be proper, and they must relate to an issue. In this instance, Ms. Wade argues the questions meet the criteria in terms of relevance,and Wawanesa vigorously disagrees. [16] The motion judge considered the positions advanced by each party, and made his determination in favour ofMs. Wade.

His findings on point are encapsulated within a few brief paragraphs: When considering the Plaintiff’s proposed “Amended Statement of Claim” […] and more specifically it’s disputed parts [sub-clauses 20(

o) and 20 (p)] and that this Court has now allowed, the Court finds that all these allegations, do contain references to facts that havebeen confirmed to be material facts or material issues to be brought before the Court in legal actions alleging bad faith against insurers.

Furthermore, once it has been determined that allegations in a pleading do indeed refer to issues or facts that are material to a claim, itshould follow that evidence (documents or answers) that would relate to these material facts or issues should prima-facie be accessible tothe parties in a pre-trial discovery, unless there is some form of privilege or other exception rule for non-disclosure or non-production.

At bar what the Plaintiff is seeking from the Defendant, in terms of document disclosure and answers, falls squarely within what thisCourt finds to be documents and information relating to the issues and facts that are material to the bad faith claim made by the Plaintiff. This Court will grant the Defendant’s argument that the information (documents and answers) that the Plaintiff presently seeks from theDefendant, may never ultimately confirm the Plaintiff’s allegations of bad faith and could even ultimately end up being declaredirrelevant at Trial.

However at this point in time in the procedure (pre-trial discovery), the test is one of simple “relation” or “relating”[Rules 31.02(1) and 32.06(1)] not one of “definitive or absolute relevancy”. [paras. 37-40] [Emphasis added.] [17] Direction is provided by New Brunswick jurisprudence on the purpose and scope of the discovery process (fora recent and comprehensive review of the law see Johnson v. State Farm Fire and Casualty Company, 2015 NBCA 4, 429 N.B.R. (2d)251, per Larlee J.A.). [18] Ryan J.A., writing for the Court in Violette et al. v.

Wandlyn Inns Ltd. et al. (1995), (NBCA), 169 N.B.R. (2d) 374, [1995] N.B.J. No. 574 (C.A.) (QL), had this to say: One of the objectives of oral examination for discovery is to enable the opposite party to know what case he or she is called upon to meetand, in addition, to simplify the trial by procuring admissions: Graydon v. Graydon (1921), (ON SC), 51 O.L.R. 301

(H.C.). The tendency of the courts is not to circumscribe the avenues of discovery but to widen them: Henderson v. Mercantile Trust Co.(1922), 52 O.L.R. 198. The objectives just mentioned are examples of the general purpose of discovery which includes particulars, disclosure of documents,inspection of documents, admitting of documents, physical examination, production of reports, inspection of property andinterrogatories.

The general purpose of discovery can be summarily described as follows: 1. to enable the examining party to know the case he or she has to meet; 2. to enable a party to obtain admissions which will dispense with other formal proof of your own case; 3. to obtain admissions which will permit you to destroy your opponent’s case; and 4. to facilitate settlement. [paras. 2-3] [19] The Court returned to this theme in Kay v. Kay (1999), (NB CA), 215 N.B.R. (2d) 291,[1999] N.B.J. No. 289 (C.A.) (QL).

In Kay, Drapeau J.A. (as he then was) provides further insight into the discovery process and itsimportance: Rule 31.04(6) must be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding onits merits. See Rule 1.03(2). The chances of achieving such a determination on the merits are enhanced where the risk of surprise isminimized, if not eliminated, by giving the parties an opportunity to know beforehand precisely what they will face at trial.

Thus, ourRules of Court call for full disclosure and production of all documents that relate to a matter in issue in an action. See Rules 31.02(1) and(2). One of the beneficial by-products of full disclosure and production of relevant documents is that settlement efforts will not bestymied by what may be misinformed speculation with respect to the strength of the adverse party’s case and the value of any assets atstake in the litigation.

Of course, where different issues are ordered tried at different times pursuant to Rule 47.03(1), production of anotherwise material document may be withheld under Rule 31.04(6). [para. 26] [20] The meaning of the term “relating to an issue” was specifically considered by Drapeau, C.J.N.B. in the case ofMRM Technical Group Inc. v. Modern Construction

(1983) Limited and Enbridge Gas New Brunswick Inc. and Robinson ConstructionCompany Limited, 2005 NBCA 93, [2005] N.B.J. No. 432 (QL) (MRM). His explanation underscores the fact that the discovery processis intended to be more expansive than restrictive in its scope: The debate in first instance centered on the material issue, namely whether the documents in question “[relate] to a matter in issue”(Rules 31.02(1)(2) and 31.03(4) of the Rules of Court) in the action between the parties. The quoted phrase has been broadly interpretedin the jurisprudence.

A document may relate to a matter in issue without being either relevant or admissible at trial (see New BrunswickTelephone Company Limited v. New Brunswick Minister of Municipal Affairs, Minister of Finance and Minister of Justice and Provinceof New Brunswick (1981), 33 N.B.R. (2d) 238 (Q.B.), at para. 21).

The phrase embraces not only documents that constitute evidenceupon a matter in issue, but, as well, any document which may – not which must – either directly or indirectly enable a party either toadvance his or her own case, or to damage that of an opposing party (see Bank of Montreal v. 3D Properties Inc. et al. (No. 1) (1993), (SK KB), 111 Sask. R. 53 (Q.B.). For an instructive discussion of other pertinent principles, see Agnew et al. v. NewBrunswick Telephone Co., [2002] N.B.R. (2d) (Supp.) No. 53 (Q.B.; Glennie J.).

Needless to say, none of the Rules of Court at play hereauthorizes a fishing expedition for documents whose relation to the matters in issue has not been established. [para. 5] [21] Wawanesa maintains the avenue being pursued by Ms. Wade is precisely that, a fishing expedition, and shouldtherefore have been disallowed. However, as pointed out in MRM, the quest ceases to be a “fishing expedition” once the relationshipbetween the documents in question and a matter in issue has been established. Such was the situation in the present case.

The motionjudge found the requisite connection to exist, without commenting upon its relative strength or its likelihood to be of importance in theeventual determination of the dispute. [22] Finally, and more recently, Drapeau, C.J.N.B. in Rumble v. Sobeys Incorporated, 2014 NBCA 72, 429 N.B.R.(2d) 307, states:

As the Court noted in Kay v. Kay (1999), (NB CA), 215 N.B.R. (2d) 291, [1999] N.B.J. No. 289 (C.A.) (QL), thechances of achieving the just, least expensive and most expeditious determination of every proceeding on its merits are “enhanced wherethe risk of surprise is minimized, if not eliminated, by giving the parties an opportunity to know beforehand precisely what they will faceat trial” (para. 26).

The Court added that one of the beneficial by-products of Rules-compliant disclosure and production “is thatsettlement efforts will not be stymied by what may be misinformed speculation with respect to the strength of the adverse party’s case[...]” (para. 26). That said, just because Ms. Rumble’s relatively successful opposition to production may foreclose an early settlementdoes not mean this Court should question her litigation strategy; an all-cards-on-the-table approach may be unwise in this case. Morepertinently, Ms.

Rumble is undeniably entitled to rulings that respect the Rules of Court. [para. 12] [23] As Larlee J.A. observed in Johnson, “[s]urely, as is evident from the jurisprudence reviewed above, discoveryis one of the most important tools in that arsenal to alleviate from surprise at trial” (para. 13). [24] I find no error on the part of the motion judge in his determination that the information sought by Ms. Wadethrough the discovery process relates to matters in issue, and consequently I would dismiss this ground of appeal. B.

Production of Financial Information [25] The second ground of appeal advanced by Wawanesa alleges the motion judge erred in ordering the companyto produce financial information prior to its liability being established. To buttress its argument, Wawanesa relies upon the SupremeCourt decision in Whiten v.

Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, wherein it was held: A defendant’s financial power may become relevant (1) if the defendant chooses to argue financial hardship, or (2) it is directly relevantto the defendant’s misconduct (e.g., financial power is what enabled the defendant Church of Scientology to sustain such an outrageouscampaign for so long against the plaintiff in Hill, supra), or (3) other circumstances where it may rationally be concluded that a lesseraward against a moneyed defendant would fail to achieve deterrence. Deterrence is an important justification for punitive damages.

It would play an even greater role in this case if there had been evidencethat what happened on this file were typical of Pilot’s conduct towards policyholders. There was no such evidence. The deterrence factoris still important, however, because the egregious misconduct of middle management was known at the time to top management, whotook no corrective action. The fact the respondent’s assets of $231 million were mentioned to the jury in this case was unhelpful. Pilot was obviously a substantialcorporation.

Disclosure of detailed financial information before liability is established may wrongly influence the jury to find liabilitywhere none exists (i.e., the subliminal message may be “What’s a $345,000 insurance claim to a $231 million company?”). Moreover,pre-trial discovery of financial capacity would unnecessarily prolong the pre-trial proceedings and prematurely switch the focus from theplaintiff’s claim for compensation to the defendant’s capacity to absorb punishment.

In any event, the court should hesitate to attributeanthropomorphic qualities to large corporations (i.e., the punishment should “sting”). [paras. 119-121] [Emphasis in original.] [26] Whiten was a jury trial, and the Supreme Court’s concern centered on the impact financial information mayhave upon a jury. Such considerations are obviously not in issue in this jurisdiction. In the case before us, the motion judge determinedthe information requested should be disclosed as it was relevant. As I detect no error on his part, I would not interfere. C.

Proportionality [27] Wawanesa argues the motion judge erred when he determined Ms. Wade`s requests were “proportionate”pursuant to Rule 1.02.1, which reads:

In applying these rules, the court shall make orders and give directions that are proportionate to what is at stake in the proceeding and the importance and complexity of the issues.

Lorsqu’elle applique les présentes règles, la cour rend des ordonnances et donne des directives qui sont proportionnées aux enjeux de l’instance ainsi qu’à l’importance et à la complexité des questions en litige. [ 28 ] Wawanesa submits the motion judge failed to consider its evidence on this issue, and specifically alleges the motion judge did not consider its assertions as to the type of information that would or would not be available to the company in attempting to answer the questions posed by Ms. Wade, and the amount of time, effort and expense that would be required.

With respect, I do not agree. [ 29 ] It is clear the motion judge did in fact consider the evidence of Wawanesa, and its arguments in support of its position. He was simply not persuaded by what was presented.

One need only look at the following excerpt from the decision to see the reasoning of the motion judge on point: In dealing with a further Defendant’s argument, to wit the “proportionality analysis”, pursuant to the recently adopted Rule 1.02.1 of the Rules of Court , this Court shall mention that it is comfortable and satisfied about the fact that what is at stake in the present proceedings and the importance and complexity of the issues raised in this action, do not at all make it overly or disproportionately onerous for the Defendant to be required to provide the information and answers at issue.

Briefly put, in considering the stakes in the case at bar and in weighing, on the one hand, the actual apparent degree of connection… (documents or information which relate to a matter in issue) and on the other hand the possibility that these Defendant’s documents and answers, if provided, may ultimately not yield anything relevant or supportive of the Plaintiff`s allegations, the Court is of the opinion that the balance shall tilt in favour of disclosure as requested by the Plaintiff.

Furthermore and still on a general basis, when comparing, on the one hand, the potential benefits for the Plaintiff and eventually for the Court in having access to these Defendant’s documents and answers and, on the other hand, the significance of the efforts and manpower and expenses that may be required from the Defendant if required to produce same, the Court again finds that the Plaintiff’s position should prevail. [paras. 47-49] [ 30 ] To summarize, the motion judge did indeed hear and consider the points argued by Wawanesa, but he was not convinced.

That does not amount to an error of law, and I would not intervene on this issue. D. Principles Relating to Electronic Discovery [ 31 ] In its written submission, Wawanesa placed before the motion judge the Sedona Canada Principles Addressing Electronic Discovery (The Sedona Conference Working Group Series, Sedona Canada, 2008).

Wawanesa tied the Principles to the question of proportionality, explaining that proportionality as it relates to electronic disclosure was the subject of a Working Group of the Sedona Conference, which published a paper on the subject in 2010, “The Sedona Canada Commentary on Proportionality in Electronic Disclosure and Discovery”. [ 32 ] Wawanesa tied the Principles to the question of proportionality, explaining that proportionality as it relates to electronic disclosure was the subject of a Working Group of the Sedona Conference, which published a paper on the subject in 2010, “The Sedona Canada Commentary on Proportionality in Electronic Disclosure and Discovery”. [ 33 ] Although the motion judge reproduced that portion of Wawanesa’s written submission dealing with the Sedona Principles in his decision, he chose not to address them specifically in his analysis or reasons.

Wawanesa points to this as a reversible error. [ 34 ] In response, Ms. Wade argues that while the motion judge did not make any specific reference to the Sedona Principles, they nonetheless:

[…] formed part of his analysis, such as the burdensome effort to access the electronically stored information (no evidence was advanced with respect to the potential cost of same), the relevance of the requested information, the complexity of the issues raised and what was at stake in the proceeding. [ 35 ] Wawanesa points out that “many provinces have developed guidelines or amended their civil procedure Rules of Court to address electronic discovery and incorporate the Sedona Principles”.

It discusses Ontario’s Rule 29.1.01(4), guidelines adopted by the Ontario Bar Association, and the Saskatchewan Queen’s Bench Practice Directive No. 6. While this overview may be helpful or informative, it is in no way binding upon the courts of this province. New Brunswick has not amended its Rules to embrace the Sedona Principles. No practice directives have issued from our courts.

This begs the question, therefore, of the relevance of the Sedona Principles in the motion judge’s decision making process. [ 36 ] The motion judge’s decision was informed by our Rules of Court , which he applied to the factual situation presented. I have already determined he was not in error in his application of the relevant Rules, and given that finding, the motion judge cannot be said to be in error simply because he chose not to apply the Sedona Principles.

Had he made the Sedona Principles the basis of his analysis, and come to a conclusion not supported by our own Rules of Court , he would most definitely have fallen into error. I find no scope for appellate intervention on this point, and leave any further discussion of the Sedona Principles and their relevance in New Brunswick to another day. V. Disposition [ 37 ] I would dismiss the appeal and order costs of $3,500 on the appeal, and $1,000 on the leave application, payable to the respondent. ____________________________________ BRADLEY V. GREEN, J.A.

WE CONCUR: ___________________________________ ALEXANDRE DESCHÊNES, J.A. ___________________________________ B. RICHARD BELL, J.A.