Grover v. MacQuarrie's Drugs Limited, 2023 NSSC 289

SUPREME COURT OF Nova Scotia Citation: Grover v. MacQuarrie's Drugs Limited , 2023 NSSC 289 Date: 2023 09 21 Docket: 519185 Registry: Antigonish Between: Teresa Grover Plaintiff v. MacQuarrie’s Drugs Limited, operating under the business name MacKinnon Pharmacy Defendant DECISION ON MOTION Judge: The Honourable Justice Scott C.

Norton Heard: September 5, 2023, in Antigonish, Nova Scotia Decision: September 21, 2023 Counsel: Jennifer Langille, for the Plaintiff Adam McQuarrie, for the Defendant By the Court: Introduction [ 1 ] This Decision addresses the interesting issue of whether a party can withhold a relevant document to which litigation privilege does not apply from disclosure and production pursuant to Nova Scotia Civil Procedure Rule 94.09. [ 2 ] On November 18, 2022, the Plaintiff filed a Notice of Action and Statement of Claim seeking damages for personal injury alleged to have been sustained while attending at the Defendant Pharmacy on October 15, 2022, pursuant to the Occupiers’ Liability Act , SNS 1996, c.27 .

The Statement of Claim says, at para 3: On October 15, 2022, the Plaintiff was attending the Defendant’s Property as a patron. The Plaintiff states she was retrieving milk from a cooler (the “cooler”) when suddenly, a walker (the “walker”) that was positioned on top of the cooler, fell and struck the Plaintiff in (sic) her head.

This caused the Plaintiff to fall into a display rack before landing on the ground. [ 3 ] The Defendant filed a Notice of Defence and Statement of Defence on March 10, 2023. [ 4 ] On the date of the alleged injury, the Plaintiff was made aware by pharmacy staff that there was closed caption television (“CCTV”) recording the events in the store at the time. When it was not listed or produced with the Defendant’s Affidavit Disclosing Documents, the Plaintiff specifically requested that it be produced.

The Defendant took the position that it was withheld from production pursuant to Rule 94.09 “solely for the purpose of impeaching a witness”. The Plaintiff filed this motion for production of the CCTV video recording. [ 5 ] At the motion hearing, the Defendant conceded that the video recording is a “document” as defined by Rule 14.02; that it is relevant evidence; and that it is not subject to a claim for litigation privilege. The Plaintiff says that in such circumstances, Rule 14 requires the CCTV recorded video to be produced. The Defendant says that it has the right to withhold production pursuant to Rule

94.09 and that there is nothing in the wording of the Rule , the cases that have interpreted the Rule or its predecessor rule, that prevents the withholding of the CCTV video in this proceeding. [ 6 ] Discovery examinations are scheduled for September 2023. Accordingly, at the conclusion of the hearing of the motion, I gave an oral decision dismissing the motion with written reasons to follow. These are my reasons.

The Rules [ 7 ] It is not disputed that the Rules contemplate that it is necessary for justice in a proceeding that a party will make full disclosure of relevant documents, electronic information and other things. In other words, there is a rebuttable presumption of full disclosure. ( Rule 14.08) [ 8 ] Rule 15.03(1) requires each party to a defended action to produce an affidavit that fulfills the party’s duty to make disclosure of documents.

Subsection (2) specifies what must be included in the affidavit and subsection (6) provides that the affidavit may be in Form 15.03A for an individual party, or Form 15.03B for a corporate party. [ 9 ] Rule 15.03(3)(

d) requires that a party attach

Schedule A listing all relevant, non-privileged documents that are actually possessed by the party. Subsection (3)(

f) requires an attached

Schedule B providing the date of retention of counsel, claiming privilege over communications with counsel unless the party waives the privilege, and providing information on all claims that a document, other than a communication with counsel, is privileged in favour of the party or another person. [ 10 ] Rule 94.09 is titled “Withholding information solely to impeach”. For reasons that are not apparent, the drafters did not include it

Part 5 of the Rules dealing with Disclosure and Discovery. Rather, it is located in

Part 20 dealing with Citation,

Interpretation and Documents. [ 11 ] Rule 94.09 states: 94.09 Withholding information solely to impeach

(1) Despite a Rule that requires a party to disclose a document, to answer a question on discovery or by interrogatory, or to otherwise provide information to another party or the court, the party may, for the sole purpose of impeaching a witness, opt to withhold making the disclosure, answering the question, or otherwise providing the information.

(2) All of the following apply to a party who chooses to withhold a document, not answer a question, or withhold other information for the sole purpose of impeaching a witness: (

a) the party cannot use the witness who is subject to impeachment as an affiant on a motion, or seek to call the witness to give direct evidence on a motion; (

b) the party cannot call the witness who is subject to impeachment as a witness for the party at a trial or hearing, unless the presiding judge permits otherwise; (

c) the party may only offer the withheld document or make use of the withheld information to impeach credibility, and it cannot be used by the withholding party to prove any fact in issue other than credibility; (

d) the party must immediately disclose the document or immediately provide the answer or the information, when the party decides not to use it or becomes aware the witness is not to be called. Analysis [ 12 ] It is helpful to review the historical development of the present Rule 94.09. The previous Nova Scotia Civil Procedure Rules (1972) contained rule 31.15 that stated: 31.15

(1) Unless the court orders, no document shall be admissible in evidence on behalf of a party unless, (

a) reference to it appears in the pleadings, or in a list of documents filed and served under rule 20.01 by any party; (

b) it has been produced by any party or an officer, director or managing agent of a party that is a body corporate, partnership or association, on an examination for discovery; (

c) it has been produced by a witness who is not, in the opinion of the court, under control of the party; (

d) it is a plan, photograph, or model in respect of which the requirement of rule 31.07 has been satisfied. (2) Paragraph (1) does not apply to a document that is used solely as a foundation for, or as part of a question in, cross-examination or re-examination. [Emphasis added] [ 13 ] In O’Brien v. Clark , 1995 NSCA 171 , the Nova Scotia Court of Appeal considered a personal injury case wherein counsel for the defendant attempted to introduce surveillance video of the plaintiff into evidence. The video had not been disclosed pursuant to the previous rule 20.

No mention of the tapes had been made during cross-examination of the plaintiff. The trial judge refused to admit the tapes. Allowing the appeal, the Court of Appeal held that the previous rule 31.15(2) provided a limited exception to the principle of full disclosure before trial, but any document so exempted could only be used for the limited purpose of impeachment.

[14] Before me, Ms. Grover argued that it could not have been the intention of the drafters of the present Rules that a relevantdocument to which no litigation privilege attaches should not be required to be listed in the Affidavit Disclosing Documents when arelevant document to which litigation privilege does apply must be listed in

Schedule B. [15] This apparent contradiction was answered by the court’s decision in Hawboldt v. Cahill, (1995) (NS SC),142 NSR (2d) 120. There, the defendant’s list of documents did not reflect the existence, if any, of videotapes and surveillance reportsthat plaintiff counsel believed to exist. The plaintiff applied pursuant to the previous Rule 20 for a complete list of documents andproduction for inspection of any and all surveillance videotapes and/or reports.

Regarding whether the defendant was required to delivera list of documents inclusive of any surveillance videotapes and reports pursuant to Rule 20.02, Justice Stewart found there was anappearance of conflict between Rule 20 and Rule 31.15. Rule 20 appeared to require that all documents, including those for whichprivilege was claimed, be listed.

Rule 31.15(2) allowed the admissibility of documents used solely as a foundation for, or as part of aquestion in, cross-examination or re-examination even though the particular documents had not been listed pursuant to Rule 20. [16] Justice Stewart concluded, at para. 27: …the apparent contradiction between the requirement to list all relevant documents, excluding only the solicitor’s brief, and the rightunder C.P. Rule 31.15(2) to use documents not listed under C.P.

Rule 20 is only reconcilable by limiting the admissibility to use oncross-examination for the purpose of contracting and impeaching the witness and not as a mechanism whereby one party may introduceit as part of its evidence, albeit through a witness called by another party, without having made the required disclosure under C.P. Rule20. It will be for the trial judge to decide whether the particular report or document meets the exception of C.P. Rule 31.15(2). If it doesnot, then under C.P.

Rule 31.15(1) and subject to the court’s discretion recited therein, the document or report, if not listed under C.P.Rule 20 would not be admitted. Failure by counsel to list the tapes and reports may, therefore, run the risk they will not be admitted inevidence during trial. 28 The decision whether to list the tapes and reports, if any, and whether to claim privilege or not, is for the person filing the List ofDocuments and, in this case, the defendant.

In making those decisions, the defendant will have to consider the potential risks of notlisting the tapes and reports and, of claiming privilege. [Emphasis added] [17] The drafters of the present Rule 94.09, drawing upon the decisions in Clark and Hawboldt, prescribed the use of the withhelddocument to be solely for impeachment and added the specific restrictions and consequences of subsection (2):

(2) All of the following apply to a party who chooses to withhold a document, not answer a question, or withhold otherinformation for the sole purpose of impeaching a witness: (

a) the party cannot use the witness who is subject to impeachment as an affiant on a motion, or seek to call the witness to give directevidence on a motion; (

b) the party cannot call the witness who is subject to impeachment as a witness for the party at a trial or hearing, unless thepresiding judge permits otherwise; (

c) the party may only offer the withheld document or make use of the withheld information to impeach credibility, and it cannot beused by the withholding party to prove any fact in issue other than credibility; (

d) the party must immediately disclose the document or immediately provide the answer or the information, when the party decidesnot to use it or becomes aware the witness is not to be called. [18] Through these added restrictions and consequences, Rule 94.09 significantly restricts the use of the withheld document,restricts the ability of the withholding party to call the witness and places a positive obligation on the withholding party to disclose thedocument “immediately” after deciding not to use it or becoming aware the witness to be impeached is not to be called. [19] Given that the overarching intent of the Rules is to promote full disclosure of relevant documents before trial, the limitedexception provided by Rule 94.09 should be narrowly interpreted. (Clark, at para. 30) [20] The effect of these added restrictions and consequences is to place a significant burden on the party withholding relevantevidence for the sole purpose of impeachment.

By taking such a position, the withholding party is forever barred from using theevidence to prove any fact in issue. Before me, the Defendant acknowledged that they understood that by refusing disclosure they wereforever foreclosed from using the CCTV video for any purpose other than impeachment. [21] In most cases, evidence from CCTV on-premises, or dash-mounted cameras in vehicles, will provide the parties with real andsubstantive evidence of the conditions and circumstances existing at the time the cause of action arose which is highly relevant to theirclaim or defence.

It may be significantly detrimental to their case to withhold such a relevant document. Thus, it is reasonable to expectthat it will be in a very limited number of cases that a party will choose to invoke Rule 94.09. [22] At the trial or hearing of the merits, if the document is used for impeachment, it may or may not cause the trier of fact todisbelieve the evidence of the witness. At a judge alone trial, the judge must not use the document for any other purpose. In a jury trial,the judge must instruct the jury specifically on the limited use that can be made of the document.

The document should not be admittedas evidence and marked as an exhibit and should not be provided to the jury for their deliberations (although it may be marked as a letterexhibit for identification). Indeed, it remains to be determined at another time as to whether, in a jury trial, the judge should conduct avoir dire to determine whether the withheld document should be put to the witness. [23] In making the decision to withhold the document, a party must weigh these consequences against the alternative of listing anddisclosing the document to prove a fact in issue.

[ 24 ] The Defendant acknowledges that they have an ongoing responsibility to assess and determine if the document can be used for impeachment and if not to immediately disclose it. Obviously, one such point in time is immediately after the discovery examination of the witness. [ 25 ] If a withheld document (not subject to litigation privilege) is not otherwise disclosed before the trial pursuant to Rule 15.02(2) (

d) and not used for impeachment, the instant that the withholding party has completed their cross-examination of the witness, the withholding party must immediately disclose the withheld document. [ 26 ] The trial judge may permit the witness to be questioned about the document through a re-opening of the direct evidence or re- examination. The trial judge has the responsibility to ensure a fair trial and may consider an adjournment to allow counsel to meet with the witness to discuss the content of the document before their testimony continues.

The trial judge may permit other witnesses to be called or recalled to speak to the contents of the previously withheld document. [ 27 ] The withholding of a document, such as video of the actual occurrence that is the basis for the cause of action, could have serious consequences for a trial. For example, the decision not to disclose dash camera footage of a motor vehicle collision would mean that it could not be considered by accident reconstruction experts for the parties.

The later disclosure of this evidence, just before or during the trial, could lead to an adjournment to allow for revision of the expert reports and result in delay and a potential mistrial in a jury trial. [ 28 ] If it is determined by the trial judge that the document was withheld improperly, there could be significant costs or other consequences to the withholding party.

A trial judge that finds, in the context of all the evidence, that the document was withheld for a purpose other than impeachment, could find that the withholding is an abuse of the court’s process leading to the imposition of the extreme remedies discussed in Rule 88.02, including dismissal of the claim or judgment and an order for solicitor and client costs. [ 29 ] Thus, the decision to withhold a relevant document (not subject to litigation privilege) must be made carefully and with full consideration of the potential consequences. [ 30 ] I would also note that the court, in permitting this type of withholding, is relying on counsel for the withholding party, as an officer of the court, to immediately disclose the withheld document when the circumstances of subsection (2)(

d) require. See Maple Trade Finance Inc. v. Euler Hermes Canada , 2015 NSSC 37 , at para. 56 . [ 31 ] In conclusion, I find that the Defendant had the right to withhold the CCTV video evidence from production and not list it in the Affidavit Disclosing Documents pursuant to Rule 94.09 for the sole purpose of impeachment and subject to the restrictions and potential consequences described above. [ 32 ] The motion is dismissed with costs in the amount of $500.00 payable to the Defendant in any event of the cause at the end of the proceeding. I direct the Defendant to prepare an Order for consent as to form by the Plaintiff. Norton, J.