r v. Foulkes and Foulkes, 2015 NBCA 29

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 59-14-CA DUSTIN TOWER APPELLANT DUSTIN TOWER APPELANT - and - - et - JUSTIN FOULKES and STACY L. FOULKES RESPONDENTS JUSTIN FOULKES et STACY L. FOULKES INTIMÉS Tower v. Foulkes and Foulkes, 2015 NBCA 29 Tower c.

Foulkes et Foulkes, 2015 NBCA 29 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Deschênes The Honourable Justice Richard CORAM : l’honorable juge en chef Drapeau l’honorable juge Deschênes l’honorable juge Richard Appeal from a decision of the Court of Queen’s Bench: May 14, 2014 Appel d’une décision de la Cour du Banc de la Reine : le 14 mai 2014 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: [2014] N.B.J.

No. 202 Procédures préliminaires ou accessoires : [2014] A.N.-B. n o 202 Appeal heard: February 10, 2015 Appel entendu : le 10 février 2015 Judgment rendered: May 7, 2015 Jugement rendu : le 7 mai 2015

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Deschênes The Honourable Justice Richard Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Richard Counsel at hearing: For the appellant: George A. McAllister, Q.C. For the respondents: Monika M.L. Zauhar and Ryan P. Burgoyne Avocats à l’audience : Pour l’appelant : George A. McAllister, c.r. Pour les intimés : Monika M.L. Zauhar et Ryan P.

Burgoyne THE COURT The appeal and cross-appeal are allowed on terms, with costs throughout payable to the appellant. LA COUR L’appel et l’appel reconventionnel sont accueillis sous réserve de conditions, avec dépens payables à l’appelant à tous les niveaux d’instance. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I.

Introduction [ 1 ] The disagreements underlying the present appeal stem from a failure to abide by elementary principles, all of which have been longstanding features of the Province’s procedural landscape: absent a dispensation order, compliance with the Rules of Court is not optional and Affidavits of Documents stand to be made by the parties ; all relevant documents, whether privileged or not, must be disclosed therein; production orders must adequately identify the targeted documents with a view to eliminating any uncertainty over compliance; and parties cannot be ordered to produce documents that are not in their possession or control. [ 2 ] The appeal raises three procedural questions of significant importance for personal injury litigators and their clients.

The first concerns the test to be applied on motions for production of documents in the possession or control of non-parties. As will be seen, I re-affirm the “enforceable right” test adopted in Paul v. Reilly , 2006 NBCA 84 , 305 N.B.R. (2d) 146 . The second question is related, but more specific, and is whether, in an action for damages arising from a motor vehicle accident, the court may, without a statutory grant of authority, order the plaintiff to produce files compiled by or on behalf of the

Section B (no-fault) insurer. The third is whether a defendant’s duty to deliver an Affidavit of Documents may be discharged by an affidavit from an agent of that defendant’s motor vehicle liability insurer. For the reasons that follow, I conclude the answer to the latter questions must be no.

II. Background [ 3 ] On September 25, 2010, Dustin Tower was injured when the motor vehicle in which he was a passenger left the roadway. The vehicle in question was owned by Stacy L. Foulkes and operated by her son, Justin Foulkes. [ 4 ] The Foulkes’ vehicle was insured under an S.P.F. No. 1 Standard Automobile Policy (Owner’s Form) issued by United General Insurance. As required by the Insurance Act , R.S.N.B. 1973, c. I-12, the United General policy provides for

Section B (no-fault) benefits. [ 5 ] Two firms of adjusters have acted for United General in connection with Mr. Tower’s claims for

Section B benefits: Lawrence & Associates and AMG Claims Inc. [ 6 ] A third firm of adjusters, Crawford Adjusters, has represented United General under its policy’s

Section A (third party liability) with respect to Mr. Tower’s claim for damages against the Foulkes. [ 7 ] Alliance Assurance is an S.E.F. 44 insurer. [ 8 ] Mr. Tower was formerly a student within School District 17, and more recently at the University of New Brunswick from which he took an extended leave of absence following the accident. [ 9 ] Mr. Tower was provided trauma-related services at the Dr. Everett Chalmers Hospital and the Saint John Regional Hospital. While at those hospitals, he received medical care from Dr. Brian Wheelock and Dr.

John Prendergast. [ 10 ] Two physical therapy firms, Sole to Soul Massage Therapy and Range of Motion, have provided rehabilitation assistance. [ 11 ] Mr. Tower has received or attempted to obtain insurance benefits from Blue Cross Atlantic. [ 12 ] As will more fully appear, United General, Lawrence & Associates, AMG Claims Inc., Crawford Adjusters, Alliance Assurance, School District 17, UNB, Dr. Everett Chalmers Hospital, Saint John Regional Hospital, Dr. Brian Wheelock, Dr.

John Prendergast, Blue Cross Atlantic, Sole to Soul Massage Therapy and Range of Motion are mentioned in one or more of the Schedules in Mr. Tower’s Affidavit of Documents. A. The pleadings [ 13 ] In the underlying action, Mr.

Tower claims compensation for his accident-related injuries and their after-effects, which the Amended Statement of Claim particularizes as follows: […] cognitive deficits including, a loss of focus and attention and a loss of memory; headaches particularly on the right side of his head; a change in his sense of taste; dry mouth; ringing in his ears; pain in his forehead; itchiness at the back of his head; tingling at the back of his head; three fractures to his neck; pain and discomfort in his neck; a limited range of flexibility in his neck; pain and discomfort in his lower back; constipation; a disturbed sleep pattern; connective tissue injuries; anxiety; chronic pain; depression; fatigue; frustration; stress; and a general loss of flexibility, strength and endurance. [ 14 ] Mr.

Tower goes on to allege that his losses include: “loss of recreational and leisure activities”;

loss of income and earning capacity; loss of valuable services; and loss of homemaking capacity. He seeks special damages, pecuniary and non-pecuniary general damages, inter alia , for the cost of future care and loss of future income, as well as aggravated and punitive damages. [ 15 ] The Foulkes admit liability for the accident. However, they contest Mr. Tower’s claim for damages and allege he was contributorily negligent. They also claim a release pursuant to s. 263(2) of the Insurance Act for

Section B benefits paid or payable. B. Mr. Tower’s Affidavit of Documents [ 16 ] In his Affidavit of Documents, Mr. Tower confirms he does not object to producing the documents listed in

Schedule A, which include correspondence to and from: Alliance Assurance (S.E.F. 44 insurer); Crawford Adjusters in respect of

Section A (third party liability) of the United General policy on the Foulkes’ vehicle; Cox & Palmer, the solicitors for the Foulkes and United General for

Section A purposes; the Department of Transportation, including an accident report; School District 17; the University of New Brunswick; Blue Cross Atlantic; the Dr. Everett Chalmers Hospital, enclosing their records for Mr. Tower; and the Saint John Regional Hospital, enclosing their records for Mr. Tower, which include at least one report by Dr. Wheelock. [ 17 ] A copy of those documents was provided to the Foulkes before the hearing in first instance. [ 18 ] In his Affidavit of Documents, Mr. Tower goes on to claim privilege over documents listed in

Schedule B. Specifically, Mr. Tower asserts litigation privilege over: (1) correspondence (and enclosures) to and from the

Section B insurer (United General) and its adjusters (Lawrence & Associates and AMG Claims Inc.); and (2) his statement dated October 8, 2010 taken by David Coy, apparently for

Section B purposes. Mr. Tower claims those documents came into existence after the underlying litigation was contemplated and for the dominant purpose of: (

a) adjusting his

Section B claim; and (

b) ensuring his claim in the underlying action “was not reduced pursuant to section 263(2) of the Insurance Act as a result of failing to claim any benefits available […] under

Section B […]”. Mr. Tower puts forward an alternative basis for his claim of litigation privilege: “the

Section B adjuster’s correspondence to [his solicitor] was provided in confidence in response to [his] claim for

Section B benefits […] and that as such the

Section B adjuster’s response was compelled pursuant to a contract and [is] therefore privileged”. As will be seen, the motion judge did not determine the validity of these novel privilege claims. [ 19 ] In

Schedule D to his Affidavit of Documents, Mr. Tower states documents are in the possession or control of non-parties, which he identifies. At the hearing in the Court of Queen’s Bench, counsel for Mr. Tower explained that most documents referenced in

Schedule D are simply originals of the documents listed in

Schedule A, copies of which had been previously provided to the Foulkes. [ 20 ] At any rate, the non-parties named in

Schedule D include individuals and entities referenced in

Schedule A: Alliance Assurance, United General, Lawrence & Associates, AMG Claims Inc., Crawford Adjusters, Cox & Palmer, the Department of Transportation, School District 17, UNB, Blue Cross Atlantic, Dr. Everett Chalmers Hospital, the Saint John Regional Hospital and Dr. Brian Wheelock. The following identified non-parties are not named in

Schedule A: Sole to Soul Massage Therapy, Range of Motion, Human Resources and Skills Development Canada, Canada Revenue Agency and Dr. John Prendergast. C. The affidavits filed by or on behalf of the Foulkes [ 21 ] Mr. Tower has served the Foulkes with a Notice requiring an Affidavit of Documents. [ 22 ] By way of response, Mr. Foulkes delivered a document purporting to be an Affidavit of Documents on his own behalf and on behalf of his mother. She would later provide her own Affidavit of Documents, but it essentially replicated her son’s.

As is well-known among members of the litigation bar, all relevant documents must be listed and described in an Affidavit of Documents, all non-privileged documents in the possession or control of the authoring party must appear in

Schedule A, documents in respect of which a claim of privilege is asserted must be set out in

Schedule B and documents in the possession or control of non-parties are to be listed and described in

Schedule D. Mr. Foulkes took the position that documents in the possession and control of his liability insurer were not within his control. Thus, only documents in his actual possession are listed in

Schedule A to his Affidavit of Documents, while

Schedule D references “all documents reflected in Affidavit of Janice Rickard, claims manager, United General Insurance, dated April 4, 2012”.

[ 23 ] Although sworn by Ms. Rickard, the last-mentioned affidavit is entitled “Affidavit of Documents of the Defendants, Justin Foulkes and Stacy L. Foulkes”. It lists and describes in Schedules A and B documents commonly found in Schedules A and B of Affidavits of Documents sworn by defendants who are insured under a motor vehicle liability insurance policy. D. Mr. Tower’s motion [ 24 ] Mr. Tower filed a Notice of Motion seeking an order compelling the Foulkes to provide a Rules -compliant Affidavit of Documents. He contended the documents listed and described in Ms.

Rickard’s affidavit should be listed in an Affidavit of Documents sworn by the Foulkes. Mr. Tower’s complaint was quite simply that the affidavits sworn by the Foulkes and Ms. Rickard did not comply with Rule 31.03(3) and (4). The former prescribes an Affidavit of Documents must be made by the party targeted by a Notice Requiring Affidavit of Documents, while the latter defines the contents of such an Affidavit. E. The Foulkes’ counter motion [ 25 ] The Foulkes responded with their own Notice of Motion, seeking, inter alia , an order that Mr.

Tower: (a) “produce a better and further Affidavit of Documents, duly executed”; (b) “disclose and produce all documents relevant to his claim, including complete medical files of health care providers and hospitals he has consulted as a result of the accident subject of this action”; (c) “ disclose and produce the complete file from the

Section B Insurer and its agents, including all chart notes, computer generated notes, narrative reports, correspondence and income and scholastic information ”; (d) “request and produce complete files” from the non-parties identified in

Schedule D; and (e) “prior to an Examination for Discovery, and following receipt of a better and further executed Affidavit of Documents, submit to a cross-examination […] on his Affidavit of Documents” (emphasis added). F. The motion judge’s decision [ 26 ] The judge declined to order cross-examination of the parties on their affidavits, being of the view such a procedure was “at best, premature”. She ordered the parties “set a date for discovery at a mutually convenient date within six months”. Neither of those decisions is challenged on appeal. [ 27 ] The judge allowed Mr.

Tower’s motion for an Affidavit of Documents duly executed by the Foulkes. She offered the following rationale for the conclusion that the affidavits, whether filed by the Foulkes or on their behalf, did not meet the requirements for an Affidavit of Documents under the Rules of Court : “although it is the insurer which gathers the documents and, with the help of counsel, drafts the affidavit, the documents are the documents of the insured. The insurer and counsel are the agents of the insured and act on the insured’s behalf.

It must therefore be the insured (or in this case insureds) who swears the Affidavit of Documents”. In the result, the Foulkes were directed to “swear further and better Affidavits of Documents containing all documents in their possession and all documents in the possession of their agents which relate to this matter (including all the documents listed in the Rickard affidavit)”. Needless to say, the order is intended to embrace all relevant documents in the possession or control of the Foulkes and their agents. [ 28 ] The judge allowed the Foulkes’ motion, in part, by ordering Mr.

Tower provide them with “a copy of the

Section B insurer’s file and copies of his medical records”. [ 29 ] The judge concluded no costs should be awarded because “success [had been] divided”. [ 30 ] As will be seen, the Foulkes complain the judge overlooked and failed to dispose of their motion for an order: (1) compelling Mr. Tower to provide a further and better Affidavit of Documents; and (2) requiring him to request and produce “complete files” from the non-parties identified in

Schedule D of the sworn Affidavit of Documents he provided prior to the hearing. G. The Notice of Appeal by Mr. Tower

[ 31 ] In his Notice of Appeal, Mr. Tower contends the motion judge committed reversible error in ordering him to provide the Foulkes with a copy of the

Section B insurer’s file and copies of his “medical records”. He contends he neither has possession of, nor an enforceable right to a copy of the

Section B file. As for the order for production of his “medical records”, Mr. Tower submits it should be set aside on grounds of vagueness and uncertainty because he does not know what documents are captured by the quoted expression. Alternatively, he asks that “medical reports prepared at the request of his solicitor for the purpose of this litigation” be excepted from the order’s reach, which, he claims, is what the motion judge intended. Finally, Mr.

Tower argues he was largely successful in prosecuting his motion and defending against the Foulkes’ counter motion and that, as a result, the motion judge’s denial of costs was unreasonable. H.

The Notice of Cross-Appeal by the Foulkes [ 32 ] The Foulkes contend the motion judge committed reversible error in ordering them to provide Affidavits of Documents containing not only the documents in their possession, but as well all documents in the possession or control of their agents, including all the documents listed in the Janice Rickard affidavit. [ 33 ] As mentioned, the Foulkes also complain the motion judge failed to determine their motion for an order: (1) compelling Mr. Tower to provide a further and better Affidavit of Documents; and (2) directing Mr.

Tower to request and produce complete files from the entities and individuals identified in

Schedule D to his Affidavit of Documents. The Foulkes ask this Court to provide the sought-after relief or, in the alternative, that a new hearing on the un-addressed issues be ordered. It bears noting that, following the issuance of the judge’s reasons for decision, the Foulkes asked her to remedy the “oversight”. The judge declined because, in the words of the clerk, “the points raised by counsel do not fall under the ‘slip rule’”. III. Analysis and Decision A. The appeal [ 34 ] After hearing the parties, the Court allowed Mr. Tower’s appeal against the order requiring him to produce “the

Section B file” and reserved judgment regarding the order for production of his “medical records”. For the reasons that follow, I conclude the last mentioned order must also be set aside. In the result, it cannot be said success has been equally divided whether in first instance or on appeal and, as a consequence, Mr. Tower is entitled to costs throughout.

(1) The order requiring Mr. Tower produce the

Section B file [ 35 ] There is no evidence Mr. Tower is in possession of the

Section B file. The issue is whether that file is within his control. [ 36 ] A document is in the control of a party if he or she has an enforceable right to obtain the document in question or a copy thereof. The law is summarized in Paul v. Reilly : The short answer to the appellants’ motion for production in relation to the

Section B file is that the Rules do not authorize the courts to make an order requiring a party to request documentation from a stranger to the action. (That such orders are commonplace is undeniable, but they are invariably made on consent). If a document in the possession or “control” of a party relates to a matter in issue in the action and is not privileged, the court may order its production : Rule 31.04(4). Thus, in El-Bayoumi v.

Wade , the case cited by the appellants in their Notice of Motion, Russell J. ordered the defendant in a malpractice action to produce the document at issue there, a tape recording of disciplinary proceedings that was in the actual possession of a person not a party to the action, the New Brunswick Dental Society. If a relevant and non-privileged document is not in the possession or control of a party to the action, the court may order its production by whoever has the possession or control: Rule 31.11 (“Documents in the Possession of a Person Not a Party”).

This Court, like the court below, lacks jurisdiction to make the order sought in the Notice of Motion in relation to the

Section B file. In any event, there is another answer to the appellants’ motion for production. A document is not “in the power” or “control” of a party just because he or she might, upon request, obtain a copy from the person who has possession: Wright v. Allstate Insurance Co. of

Canada, [1983] A.J. No. 611 (Q.B.)(QL). In Jos. A. Likely Ltd. v. Peter Kiewit & Sons (1978), (NB CA), 19 N.B.R.(2d) 294 (C.A.) at paras. 10-17, the Court held that a document was “in the power” of a party within the meaning of Rule 31.04(4)’spredecessor, Order 31, Rule 14, if, though not in the possession of that party, he or she had an enforceable right to its production forinspection.

There is nothing in the record to support the conclusion that the respondent had, at the time of the hearing in the court below,an enforceable right to production for inspection of any part of her no-fault insurer’s accident-related file. [paras. 40-41] [37] The Rules of Court do not provide for an order requiring a party to request a document from anon-party, and to produce that document should it be handed over (see Clark v. Collicott, 2013 NBQB 53, 400 N.B.R. (2d) 279, at paras.22 and 60, per Morrison J.).

A production order can only issue if the document in question is in the possession or control of the targetedparty. Nevertheless, the requisite control over a document exists if the party has, upon request, a legal right to its production from a non-party. That point was emphasized in Rumble v. Sobeys Incorporated, 2014 NBCA 72, [2014] N.B.J. No. 322 (QL): A document in the possession or control of a stranger to the action is also within the control of a party if he or she has an enforceableright to its production for inspection: Paul v. Reilly, 2006 NBCA 84, 305 N.B.R. (2d) 146, at para. 41 and Stone v.

Sharp, 2008 NBCA55, 333 N.B.R. (2d) 220, at para. 24. A right sourced in contract or statute suffices. Moreover, Paul v. Reilly is authority for theproposition that the courts of this Province are without jurisdiction to make an order requiring a party to request documentation from astranger to the action who might, or is expected to, voluntarily comply. Of course, that statement of the law does not apply to a situationwhere, as here in the case of DRUGStore Pharmacy, a request would trigger a legally enforceable right to production. [para. 17] [38] The Foulkes submit s. 4.9 of

Schedule 1 of the Personal Information Protection and ElectronicDocuments Act, S.C. 2000, c. 5 (“PIPEDA”), confers upon Mr. Tower “an enforceable right to obtain personal information in hisinsurer’s

Section B file”. They contend PIPEDA applies, since January 4, 2004, to private organizations engaged in commercialactivities, such as insurance companies.

Section 4.9 reads as follows: 4.9 Upon request, an individual shall beinformed of the existence, use, and disclosureof his or her personal information and shall begiven access to that information. Anindividual shall be able to challenge theaccuracy and completeness of the informationand have it amended as appropriate. 4.9 Une organisation doit informer toutepersonne qui en fait la demande del’existence de renseignements personnels quila concernent, de l’usage qui en est fait et dufait qu’ils ont été communiqués à des tiers, etlui permettre de les consulter.

Il sera aussipossible de contester l’exactitude etl’intégralité des renseignements et d’y faireapporter les corrections appropriées. [39] Under Rule 37.03(b), a Notice of Motion must include a reference to any statutory provision themoving party intends to rely on.

Section 4.9 is not referenced in the Foulkes’ Notice of Motion. Moreover, the provision was not raisedby the Foulkes at the hearing in the Court of Queen’s Bench. As a result, the issue of its applicability was not put to the motion judge andshe did not make any ruling on point. That being so, the question of Mr. Tower’s control over the

Section B file stands to be determinedon common law principles. Nevertheless, a few tentative, hopefully thought-provoking, observations are warranted regarding theapplicability of PIPEDA. Even if one assumes, for the sake of argument, that the statute has application to

Section B insurers in thecontext of an action for personal injuries against a third party, it remains very much open to debate whether it was intended to and doesactually expand discovery-related rights and obligations. At any rate, any future debate and decision on point should touch upon: (1) theobject of PIPEDA as a whole, and s. 4.9 in particular; (2) the meaning of “commercial activity” (s. 2(1)), “personal information” and“commercial activities” (ss. 4(1)(a), 4(2)(b), 5(1), 5(3) and 7(1)), and how those concepts can be reasonably applied in a context like thepresent one to a

Section B file (see State Farm Mutual Automobile Insurance Co. v. Canada (Privacy Commissioner), 2010 FC 736,[2010] F.C.J. No. 889 (QL) at paras. 97-119); (3) the meaning of the right of “access” found in s. 4.9, notably in light of the Frenchversion, which, literally translated, connotes a right to “consult” personal information; and (4) the fact that s. 4.9, by its wording, confersa right of access to information, not a right to a copy of the document that contains the information in question.

The present appeal is notconcerned with oral discovery; it deals with documentary discovery, and although the word “document” is broadly defined in Rule 31,“[t]he aim of that expansive definition is not to conflate documentary and oral discovery”: Rumble v. Sobeys Incorporated, at para. 14. [40] In Clark v. Collicott, Justice Morrison ordered production of the

Section B file because theprivilege asserted in relation thereto was invalid and the plaintiff had sworn in his Affidavit of Documents that the file was in hispossession or control. There is no such concession here. [41] Mr. Tower does not have an enforceable right at common law to obtain the

Section B file or acopy thereof. It follows that the order requiring him to produce “the

Section B file” was made without jurisdiction, and must be set aside.

[ 42 ] That said, it is equally clear that some of the documents in the

Section B file are in the possession or control of Mr. Tower. He says so in his Affidavit of Documents, but claims the documents are privileged and, therefore, shielded from court-ordered production. The validity of that claim was not determined by the motion judge.

(2) The order requiring Mr. Tower to produce his “medical records” [ 43 ] An order for the production of documents should be sufficiently precise that its reach is unambiguous. The targeted litigants should know with reasonable certainty what documents they are required to produce. [ 44 ] Both sides agree the production order at issue is not prospective in effect. In other words, it is designed to cover documents in existence at the time of the making of the order. [ 45 ] The term “medical” can be construed either narrowly or broadly. As the Court pointed out in Veno v.

United General Insurance Corporation , 2008 NBCA 39 , 330 N.B.R. (2d) 237 , at para. 106 , the term “medical” may be employed for the narrow purpose of referring to the science or practice of medicine; however, it does have a broader meaning, namely “of or relating to the condition of one’s health”. Usually, the reasons for decision, read in the light of the record, make plain what documents are covered by a production order. That is not the case here. [ 46 ] The record shows Mr. Tower has produced a copy of all correspondence (and enclosures, where applicable) passing between him and the Dr.

Everett Chalmers Hospital, including:

(1) Ambulance NB’s Patient Care Record dated September 25, 2010;

(2) Emergency Outpatient form dated September 25, 2010;

(3) Medication Administration record dated September 25, 2010;

(4) Two Diagnostic Imaging reports dated September 25, 2010; and

(5) Laboratory report dated September 25, 1010. [ 47 ] The record also shows Mr. Tower has provided the defendants with a copy of all correspondence (and enclosures, where applicable) exchanged with the Saint John Regional Hospital, including:

(1) Concentrated Care 12 Hour

Summary Sheet for the period September 26, 2010 to September 29, 2010;

(2) Interdisciplinary Patient Progress Record for September 26, 2010;

(3) Progress Record for the period September 25, 2010 to September 30, 2010;

(4) Results

Summary for the period September 25, 2010 to September 28, 2010;

(5) History and Physical dated September 25, 2010;

(6) Discharge

Summary dated September 29, 2010;

(7) Consult/Referral Physiotherapy Order Requisition dated for September 27, 2010 and September 28, 2010;

(8) Dr. Brian Wheelock’s report dated October 27, 2010;

(9) Dr. Brian Wheelock’s medical excuse dated October 27, 2010; and

(10) Discharge Transfer

Summary dated November 24, 2010. [ 48 ] Surely, the order requiring Mr. Tower produce his “medical records” is not directed at documents he has already produced. There remains the possibility that the production order targets “medical records” listed in

Schedule D of Mr. Tower’s Affidavit of Documents. In my view, this hypothesis does not withstand scrutiny. [ 49 ] First, the motion judge does not rest the impugned order on a finding that Mr. Tower is in control of the “medical records” in the possession or control of the non-parties identified in

Schedule D. In fact, her reasons for decision do not feature any discussion of this condition precedent. Second, and as mentioned, the Foulkes take the position that the motion judge did not determine their motion for an order compelling Mr. Tower to produce the documents listed in

Schedule D to his Affidavit of Documents, which, it bears repeating, include: (1) “documents in the possession or control of Dr. John Prendergast, Chipman, New Brunswick”; (2) “documents in the possession or control of the Dr. Everett Chalmers Hospital”; (3) “documents in the possession or control of the Saint John Regional Hospital”; (4) “documents in the possession or control of Dr.

Brian Wheelock”; (5) “documents in the possession or control of Sole to Soul Massage Therapy, Minto, New Brunswick”; and (6) “documents in the possession or control of Range of Motion, Fredericton, New Brunswick”. [ 50 ] Having regard to the foregoing, like Mr. Tower, I am at a loss to understand what documents are captured by the reference to “medical records”. That being so, the order must be set aside. B. The Cross-Appeal

(1) The order requiring the Foulkes to produce an Affidavit of Documents compliant with Rule 31 [51] In their written submission on appeal the Foulkes contend the order should be set aside for thefollowing reasons: In the present case, neither Respondent had any knowledge of the origin or purpose of the documents listed in Janice Rickard’s Affidavitof Documents. As such, how could they make a valid claim of privilege over any of the documents created therein, without theadditional evidence of Janice Rickard.

Rule 4.05(2) states that every affidavit shall be confined to a statement of facts within the personal knowledge of the deponent, except asprovided otherwise by these rules. Nowhere in the Rules of Court is there an exception which would allow a deponent, in an Affidavit ofDocuments, to provide facts not within his or her personal knowledge. As a result, in order to establish a valid claim of privilege overdocuments created by an insurer or at an insurer’s request, an insured must provide evidence from their insurer as to the origin and/orpurpose of that document.

Doing so through an Affidavit of Documents from the insurer is a logical way to do such. In Janel Ouellet Design Inc. v. Desbiens, 1998 CarswellNB 459 (CA) (“Janel”), a landlord brought an action against a tenant following afire that […] was deemed suspicious, possibly involving arson. The subliminal actors were the two insurers for the parties and thePlaintiff applied to the Court for production of documents created by the Defendant’s insurer as a result of their investigation of the fire.The Defendant had claimed litigation privilege over these documents pursuant to

section 43.1 of the Evidence Act, R.S.N.B. 1973, c. E-11. The Court of Appeal warned against blind obedience to the Rules of Court, stating at para. 11: The primary target of Mr. Desbiens’ (the Defendant’

s) insurer had to be Mr. Desbiens. The purpose of the company’s investigation, inorder [to] successfully defend any claim by him, had to point to his complicity or utter negligence in relation to the fire.

Yet, in hisAffidavit of Documents he objects to produce the documents in question which are in his possession or control, documents whichinvestigate him and rely upon police, fire and other investigatory agencies with respect to his alleged involvement in the origin of the fire.I mention this because it is highly unlikely that these documents, on which privilege is claimed in the lawsuit between him and Janel,were ever in his “possession or control” as sworn in his Affidavit of Documents.

Blind obedience to the Rules of Court without makingallowances for a changed situation, such as here where the controlling combatants are two insurers, leads to deficiencies in thepreparation of affidavits and of the Affidavit of Documents. The contents of the affidavits must relate to the changed circumstancesin which the parties and their contractual insurers find themselves. Not every foot fits into Cinderella’s slipper. [Bold in original; underlining added.] [52] The Foulkes argue the affidavits submitted by them and on their behalf as Affidavits ofDocuments were proper given the facts of this case.

They contend Ms. Rickard’s affidavit was made by “the person with the personalknowledge over the creation and origin of the documents”. In the Foulkes’ view, it would be improper to swear an Affidavit ofDocuments with claims of privilege that are foreign to them. [53] With respect, there is no merit to that submission. I begin the discussion on point with a fewaxiomatic propositions. [54] A case is only authority for what it decides. The ratio decidendi of Ouellet (Janel) Design Inc.v. Desbiens (1998), (NB CA), 207 N.B.R. (2d) 128, [1998] N.B.J.

No. 513 (C.A.) (QL) is accurately delineated inthe headnote (QL), which reads as follows: The evidence in support of the claim for privilege was wanting. The affidavits were bare and merely asserted the privilege. The mereassertion did not fulfil the test for substance without giving up any privilege content. No examinations were conducted on the affidavits.The primary target of Desbiens’s insurer had to be Desbiens. Nothing persuaded the Court that the dominant purpose of the investigationbrought it within

section 43.1 of the Evidence Act. Suspicion of arson did not, in and of itself, create the dominant purpose referred to insection 43.1. To be dominant it had to be the principal or controlling purpose and the evidence had to support this chief purpose, and itdid not herein. The motions judge’s determination that it was not necessary to examine the documents was made on the basis of theevidence and arguments on the motion. A motions judge was not bound to rescue the assertion of privilege by inspecting the documentsto validate a party’s claim. There was no failure to exercise discretion judicially.

The underlined observations in the excerpt from Ouellet (Janel) Design Inc. v. Desbiens reproduced in paragraph 51 hereinabove are nomore than grist for the mill and do not amplify the core ruling, which was that unsubstantiated claims of privilege will not be upheld.That said, the dicta in question are inarguably correct to the extent that they suggest documents in the possession of non-parties (policeand fire departments) were a more appropriate fit under

Schedule D than

Schedule B. [55] Procedural rules are a means of securing outcomes to litigation that reflect justice according tolaw. Achieving that fundamental objective is invariably foreclosed if the truth is not given every reasonable chance of shining through:Imperial Oil v. Jacques, 2014 SCC 66, [2014] S.C.J. No. 66 (QL), at para. 24. A Rules-compliant Affidavit of Documents “is generallyindispensable in uncovering the truth”: Whelton v. Mercier et al., 2004 NBCA 83, 277 N.B.R. (2d) 251, at para. 26.

A party is entitled toan Affidavit of Documents that complies with the Rules of Court, and no party has the right “to unilaterally decide on its own or by itscounsel to ignore the Rules of Court”, including those pertaining to the discovery of documents: Forest Protection Ltd. v. Bayer A.G.(1998), (NB CA), 207 N.B.R. (2d) 50, [1998] N.B.J.

No. 484 (C.A.) (QL), at para. 28, per Ryan J.A. for the Court.The case at hand is concerned with more than a minor tweak of some Form under the Rules; the procedure followed by the Foulkesconstitutes a major and unwarranted departure from the requirements of Rule 31. [56] Rule 31.03 sets out the obligations of the parties and their solicitors in connection with themaking of an Affidavit of Documents. [57] Rule 31.03(3) states an Affidavit of Documents must be made by the party upon which a NoticeRequiring Affidavit of Documents has been served.

Where the party is a corporation, the Affidavit is to be made by an officer, directoror employee. [58] Rule 31.03(4) identifies the essential requirements of an Affidavit of Documents. It mustcontain: (

a) a list and description of all documents which relate to a matter in issue in the action and which are in the possession orcontrol of the party and for which no privilege is claimed. These documents form part of

Schedule A; (

b) a list and description of allrelevant documents that are in the possession or control of the party and for which a privilege is claimed and the grounds for such claim.These documents appear in

Schedule B; (

c) a list and description of all relevant documents, which the party has had, but no longer has, inhis possession or control, giving their whereabouts on the basis of knowledge, information or belief. These documents are to be found inSchedule C; and (

d) a list and description of all relevant documents that the deponent believes are in the possession or control of a non-party and a description sufficient to identify that non-party. These are

Schedule D documents. Moreover, the Affidavit of Documentsmust describe each document or bundle of documents in a manner that adequately identifies it: Rule 31.03(5). [59] Rule 31.03(4)(

e) requires deponents to state they are “not aware” of any relevant documentbeyond those referenced in the Affidavit of Documents, while Rule 31.03(6) obligates solicitors for the authoring party to endorse theAffidavit with a certificate confirming: (1) they have “explained to the deponent the necessity of making a full disclosure of all relevantdocuments”; and (2) they are unaware of any other document that should have been disclosed. [60] Rule 31.03(3) is unambiguous. The making of an Affidavit of Documents is the responsibilityof the party served with a Notice Requiring Affidavit of Documents.

Of course, there will be cases where, at least initially, the party’spersonal knowledge of the file or files is limited and incomplete. Likewise, it will typically be the case that the party does not have aproper appreciation of the concepts of “relevance”, “privilege”, “possession” and “control” as they apply to the documentary discoveryprocess. Yet, that party is bound to make an Affidavit of Documents that meets the requirements of Rule 31.03.

The solution is obvious:the missing factual and legal knowledge stands to be remedied through the parties’ diligence and the input of their solicitor. [61] Parties making an Affidavit of Documents are duty bound to self-inform. That duty may requireparties, whether self-represented or not, to acquaint themselves with the applicable legal principles and, where necessary, to seekappropriate legal advice.

Parties are expected to conduct a careful search for all relevant documents in their possession or control and “tomake diligent inquiries about other material documents which may be in the possession of others for [them]”: W.B. Williston & R.J.Rolls, The Law of Civil Procedure (Toronto: Butterworths, 1970) vol. 2 at 892.

See, as well, Linda Abrams and Kevin PatrickMcGuinness, Canadian Civil Procedure Law, 2d ed. (Markham, Ont.: LexisNexis Canada, 2010). [62] Because parties will rarely have a proper understanding of the legal concepts that inform theprocess of making a Rules-compliant Affidavit of Documents, their solicitors are under a general duty to advise them “as to what isinvolved in the discovery process”: Delta Electric Co. Ltd. v. Aetna Casualty Company of Canada, Taylor Contracting Ltd. and Morden& Helwig Limited (1984), (NB KB), 53 N.B.R. (2d) 406, [1984] N.B.J.

No. 112 (Q.B.) (QL), at 410, per Stevenson J.More specifically, solicitors are required, not only to impress upon their clients the legal requirement of disclosure of all relevantdocuments in their possession or control, but also to take reasonable steps to ensure no relevant document has been omitted from theAffidavit of Documents (see Woods v. Martins Bank, Ltd. and Another, [1958] 3 All E.R. 166 and Gordon Cudmore, Choate onDiscovery, 2d ed. (Scarborough, Ont.: Carswell, 2004) (loose-leaf updated 2011, release 7) ch. 3 at 65.

The complementary nature of theparty’s and the solicitor’s obligations is aptly explained in Canadian Civil Procedure Law, at para. 13.20:

Each party to an action is under a duty to make full, fair and prompt documentary disclosure. However, the duty is not limited to the party: a corresponding duty also flows through to the counsel for each party. A party giving discovery is under a duty to make a careful search for all relevant documents in his or her possession and to make diligent inquiries about other material documents which may be in the possession of others.

A lawyer has a duty of careful investigation and supervision and of advising his or her client as to what documents should be included in the affidavit, because a client cannot be expected to know the whole scope of his or her obligation without legal assistance. [ 63 ] It follows the motion judge was correct in ordering the Foulkes to file an Affidavit of Documents that complies with Rule 31 and which, to be plain, includes all of the documents listed in the Rickard affidavit.

(2) The motions by the Foulkes that stand undetermined [ 64 ] As noted, the Foulkes complain the judge failed to dispose of their motion for an order: (1) compelling Mr. Tower to provide a further and better Affidavit of Documents; and (2) requiring him “to request and produce complete files” from the non-parties identified in

Schedule D of the Affidavit of Documents he provided prior to the hearing. At the hearing, the Court allowed the Foulkes’ cross-appeal, in part, by referring the determination of those motions back to the motion judge, on terms. That disposition should not be understood as an acknowledgement of merit. [ 65 ] In disposing of the motion for a further and better Affidavit of Documents by Mr. Tower, the motion judge should focus on the validity of the privileges claimed for correspondence to and from the

Section B insurer and its adjusters, and for the statement given by Mr. Tower to one of those adjusting firms. Should the motion judge conclude Mr. Tower’s claims of privilege have been improperly made, a further and better Affidavit of Documents might be ordered pursuant to Rule 31.06(b). I would wrap up the discussion on this topic by underscoring the obvious: the door is not closed to other bases for the sought-after order.

Nevertheless, such an order should not issue on the basis of speculation regarding the existence of undisclosed documents. [ 66 ] As for the second motion, no useful purpose would be served by referring back to the judge the issue of the producibility of the documents in the possession or control of Alliance Assurance (the S.E.F. No. 44 insurer), United General (the

Section B insurer), Lawrence & Associates and AMG Claims Inc. (Section B adjusters), Crawford Adjusters (Section A adjusters) and Blue Cross Atlantic. Nothing in the underlying Notice of Motion and accompanying documentation supports the conclusion that Mr. Tower is either in possession or control of those documents. Obviously, the same holds true for documents in the possession or control of Cox & Palmer, the solicitors for the Foulkes. [ 67 ] The other documents listed in

Schedule D are arguably in Mr. Tower’s control on the basis of an enforceable right to their production under either the common law or commonly applied Federal and Provincial legislation. I would add the motion judge should decline to entertain the motion for production of those documents unless and until the Foulkes specify in an Amended Notice of Motion any statutory provision upon which they intend to rely (see Rule 37.03(b)). Should the motion judge deem it appropriate to grant the Foulkes’ motion, she might consider, where appropriate, an order harmonious with this Court’s decision in Rumble v. Sobeys . IV.

Conclusion and Disposition [ 68 ] It is for the reasons set out in the preceding text that I joined my colleagues in allowing both the appeal and the cross-appeal, on terms. [ 69 ] Having regard to the proposed disposition on appeal and the reasons fleshed out hereinabove, the appellant has undoubtedly achieved overwhelming success at all adjudicative levels. Accordingly, he is entitled to costs throughout, which I would set at the global sum of $3,500.00.

____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: ____________________________________ ALEXANDRE DESCHÊNES, J.A. ____________________________________ J.C. MARC RICHARD, J.A.