2014 NBCA 72, 2014 NBCA 72

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 10-14-CA ANGELA RUMBLE APPELANTE, ANGELA RUMBLE APPELANTE - et - - et - SOBEYS INCORPORATED intimé. SOBEYS INCORPORATED INTIMÉE Rumble v. Sobeys Incorporated, 2014 NBCA 72 Rumble c.

Sobeys Incorporated, 2014 NBCA 72 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Green CORAM : l’honorable juge en chef Drapeau l’honorable juge Larlee l’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: January 8, 2014 Appel d’une décision de la Cour du Banc de la Reine : le 8 janvier 2014 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: Court of Appeal: [2014] N.B.J. No. 54 [2014] N.B.J.

No. 164 Procédures préliminaires ou accessoires : Cour d’appel: [2014] A.N.-B. n o 54 [2014] A.N.-B. n o 164 Appeal heard: October 21, 2014 Appel entendu : le 21 octobre 2014 Judgment rendered: December 18, 2014 Jugement rendu : le 18 décembre 2014 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Larlee The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Green

Counsel at hearing: For the appellant: George A. McAllister, Q.C. For the respondent: Renée M. Fontaine Avocats à l’audience : Pour l’appelante : George A. McAllister, c.r. Pour l’intimée : Renée M. Fontaine THE COURT The appeal, which is concerned with the validity of orders for production under Rule 31 of the Rules of Court, is allowed, in part, with costs. LA COUR L’appel, qui porte sur la validité de certaines ordonnances de production rendues en vertu de la règle 31 des Règles de procédure est accueilli en

partie avec dépens. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I.

Introduction and Overview [ 1 ] I begin with a triptych of elementary propositions: (1) procedural rules exist to secure outcomes to litigation that reflect justice according to law; (2) trials, the ultimate process for securing such outcomes, have manifold objectives, some of which are general in scope (maintaining the public’s confidence in the justice system immediately springs to mind as a prime example), while others are specific to the underlying litigation; and (3) those objectives would be unachievable in most cases if the truth were not given every reasonable chance of shining through: Imperial Oil v.

Jacques , 2014 SCC 66 , [2014] S.C.J. No. 66 (QL) , at paras. 24-31 . In my view, there is a direct correlation between the truth and justice according to law in all proceedings, perhaps more so in civil cases, and the pursuit of truth and justice is greatly facilitated by the parties’ compliance with pre-trial procedural obligations, especially those pertaining to informational disclosure and documentary production. As the Court underscored in Davis v.

MacKenzie , 2008 NBCA 85 , 338 N.B.R. (2d) 232: “[p]ointless games of documentary ‘hide and seek’ have no place in Rules- compliant litigation, which requires the fullest disclosure and production possible” (para. 37). That said, absent exceptional circumstances, every litigant is entitled to compliance with the Rules of Court . [ 2 ] Stripped to its essence, this appeal is concerned with whether a condition precedent to the issuance of two of the production orders obtained by the respondent in the Court of Queen’s Bench has been met.

Rule 31.02(2) of the Rules of Court ordains the production for inspection of any relevant document in the possession or control of a party, unless, of course, privilege is claimed in relation thereto. The record shows the appellant was not in possession of the bundle of documents targeted by each order. Accordingly, the pivotal issue is whether they were within her control.

For the reasons that follow, I conclude: (1) this condition precedent has not been established with respect to one of the bundles, and the motion judge erred in ordering the appellant to produce it; and (2) the other production order, while generally appropriate, needs to be narrowed in scope. [ 3 ] The appellant, Angela Rumble, alleges in her Statement of Claim she was seriously injured as a result of a slip and fall at the Sobeys grocery store on Prospect Street in Fredericton, fully six years ago.

Although her action for damages was commenced some three years ago, the documentary discovery process remains incomplete. [ 4 ] Be that as it may, I note the Statement of Claim provides a description of Ms. Rumble’s injuries and their effect on her that can only be viewed as atypically severe for a slip and fall: 7.

The plaintiff says that as a result of her fall she suffered, inter alia: dizziness; positional vertigo; drymouth; nausea; shooting pains in the back of her head; cognitive deficits including a loss of memory, word find problems and a loss of focus and attention; emotional deficits including irritability, anger, lethargy and procrastination; pain in the back of her neck; pain and discomfort in her right shoulder;

pain in her right arm; numbness in the fingers of her right hand; shooting pains from her neck into her right arm; numbness and tingling in the first two fingers of her right hand; pain in her chest; pain in her upper back; pain in her lower back; spasm in her lower back; locking in her lower back; pain in her left hip; shooting pains down her left leg; a loss of stability in her left knee; pain and discomfort in her left ankle; constipation; a disturbed sleep pattern; connective tissue injury; chronic pain; fibromyalgia; myofascial pain syndrome of her neck, back and shoulders; anxiety; depression; fatigue; frustration; stress; and a general loss of flexibility, strength and endurance.

It also particularizes her claim for general damages: 16.(

a) General damages for pain and suffering and loss of the amenities of life, loss of income, loss of earning capacity, loss of valuable services, loss of homemaking capacity, the cost of any products or services which the Plaintiff may require for her care as a result of her aforesaid fall, loss of insurability and value of contributed services. [ 5 ] In its Statement of Defence, the respondent asserts Ms.

Rumble is not entitled to the damages claimed at paragraph 16 of the Statement of Claim, including damages for past or future pecuniary losses, because, among other reasons, there is no causal link between her fall and the alleged injuries, health problems and losses. Paragraph 8 is on point: Further and in the alternative, the Defendant says that the Plaintiff’s alleged injuries, which are not admitted, are not causally connected to her fall, but rather are the result of some other accident, injury, illness or calamity for which the Defendant is not liable at law.

In particular, the Plaintiff suffered from pre-existing pain in her back, neck, shoulders, hips, knees, hands and arms as well as occipital headaches, degenerative arthritis, degenerative disc disease and fatigue which are in no way causally connected to the Plaintiff’s fall of October 20, 2008. The Defendant denies that the Plaintiff sustained any injury or loss as a result of the fall of October 20, 2008, and puts the Plaintiff to the proof of that allegation. [ 6 ] Ms.

Rumble has filed a Reply and it deals with the issue of causation in the following terms: The Plaintiff, with respect to the allegations set out in paragraph 8 of the Defendant’s Statement of Defence, says that:

a) to the extent that she had any pre-existing diseases or injuries, a fact which she does not admit, and puts the Defendants to the strict proof thereof, that she was asymptomatic and that the injuries which she sustained caused the said diseases or injuries to be unmasked, or;

b) to the extent she had any pre-existing diseases or injuries, a fact which she does not admit, and puts the Defendants to the strict proof thereof, that the injuries which she sustained aggravated or exacerbated the said pre-existing diseases or injuries, or;

c) the injuries which the Plaintiff sustained in her fall materially contributed to her symptoms, impairments, barriers and disabilities, or;

d) the injuries which the Plaintiff sustained caused new injuries, symptoms, impairments, barriers and disabilities, which have made her more vulnerable in the future, or;

e) the Plaintiff says that as long as the injuries which she sustained were part of the chain of causation in causing her symptoms,impairments, barriers and disabilities, that there is no apportionment between any pre-existing diseases or injuries, a fact which she doesnot admit, and puts the Defendants to the strict proof thereof, and the injuries which she sustained. [7] On April 11, 2012, the respondent served Ms. Rumble with a Notice Requiring an Affidavit of Documents. Shecomplied a year later. [8] In her sworn Affidavit of Documents, Ms.

Rumble claims privilege over several documents, which are listed inSchedule “B” and include an occupational analysis and employability assessment provided by Rehabilitation Alternatives, a firmretained by her for litigation purposes. In the main body of her Affidavit, Ms. Rumble expresses the belief that “the documents relating tothe matters in issue in this action, which are listed in

Schedule “D” […] are in the possession or control of those persons whose namesand addresses are therein set forth”. The documents listed in

Schedule “D” include “documents in the possession or control of the[DRUGStore] Pharmacy [in] Fredericton” and “documents in the possession or control of Rehabilitation Alternatives [in] Saint John”. [9] On October 16, 2013, the respondent filed a motion, pursuant to Rule 31.02(2), seeking production for inspectionof various documents from Schedules “B” and “D”, including the documents in the possession or control of DRUGStore Pharmacy andRehabilitation Alternatives. The motion was supported by an affidavit sworn in Nova Scotia before a commissioner of oaths for that province.

The sole purpose of the affidavit was to place before the motion judge copies ofthe pleadings and the other formal documents mentioned hereinabove. I pause to acknowledge Ms. Rumble objected to the admissibilityof that affidavit on the grounds that it was not sworn before a notary public. Sections 78(1) and (3) of the Evidence Act, R.S.N.B. 1973,c. E-11, confirm the validity, effectiveness and admissibility of the affidavit in question and provide a complete answer to the objection.Nothing further need be said on the subject. [10] The judge allowed the motion in part, ordering Ms.

Rumble to produce one document identified in

Schedule “B”(correspondence from her treating physician), and three bundles of documents referenced in

Schedule “D” (documents in the possessionor control of DRUGStore Pharmacy, Dr. Bruce Poole and Rehabilitation Alternatives). [11] Ms. Rumble contends the motion judge committed numerous errors, each of which, in her submission, warrantsreversal of every production order made in first instance. In my respectful view, those contentions of general application are bereft ofmerit and only one narrow issue merits discussion: it is whether the evidence established the documents held by DRUGStore Pharmacyand Rehabilitation Alternatives are in Ms. Rumble’s control. III.

Analysis and Decision [12] 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), the chances of achieving the just, least expensive and most expeditious determination of every proceedingon its merits are “enhanced where the risk of surprise is minimized, if not eliminated, by giving the parties an opportunity to knowbeforehand precisely what they will face at trial” (para. 26).

The Court added that one of the beneficial by-products of Rules-compliantdisclosure and production “is that settlement efforts will not be stymied by what may be misinformed speculation with respect to thestrength of the adverse party’s case […]” (para. 26). That said, just because Ms. Rumble’s relatively successful opposition to productionmay foreclose an early settlement does not mean this Court should question her litigation strategy; an all-cards- on-the-table approach may be unwise in this case. More pertinently, Ms. Rumble is undeniably entitled to rulings that respect the Rulesof Court.

A. Additional general observations [13] It is settled law, at least in this Province, that the Rules pertaining to the discovery of documents should beconstrued broadly: Ouellet (Janel) Design Inc. v. Desbiens (1998), (NB CA), 207 N.B.R. (2d) 128, [1998] N.B.J.No. 513 (C.A.) (QL), Ryan J.A., at para. 17.

It is also beyond dispute that “our system of civil procedure is founded on the general rule that the interests of justice are bestserved if parties to litigation are obliged to disclose and produce for the other party’s inspection all documents in their possession,custody or power relating to the issues in the action”: Edgar v. Auld et al. (2000), 225 N.B.R. (2d) 71, (NB CA), [2000] N.B.J. No. 69 (C.A.) (QL), Ryan J.A., at para. 12.

Needless to say, those generalguidelines do not dispense with the need for satisfaction of the conditions precedent set by the Rules of Court for production orders. [14] The word “document” when used as a noun means “1 a piece of written or printed matter that provides a record orevidence of events, an agreement, ownership, identification, etc. 2 Computing a file, esp. a text file”: The Canadian Oxford Dictionary,(Toronto: Oxford University Press, 1998).

Under Rule 31, the word includes a “film, photograph, video tape, chart, graph, map, plan,survey, book of account, recording of sound, and information recorded or stored by means of any device” (emphasis added). The aim ofthat expansive definition is not to conflate documentary and oral discovery, but to remove technical objections to the former, whichexplains why Ms. Rumble is not arguing the personal health information in DRUGStore Pharmacy’s possession falls outside the reach ofRule 31. [15] Moreover, Ms.

Rumble does not contend the production orders under appeal contravene the proportionality rule(Rule 1.02.1) or authorize access to personal health information that might, despite the serious allegations in the pleadings, fall within azone of privacy that would require some feature to remain confidential. In that regard, it bears noting that the motion judge offered Ms. Rumble the opportunity to file a supplementary affidavit, but she declined. [16] Ms. Rumble swears in her Affidavit of Documents that the documents listed in

Schedule “D” relate to the mattersin issue in the action. The respondent agrees, and so do I. Thus, the only issue is whether Ms. Rumble is in control of the documents inthe possession of DRUGStore Pharmacy and Rehabilitation Alternatives. [17] A document in the possession or control of a stranger to the action is also within the control of a party if he or shehas an enforceable right 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 NBCA 55, 333 N.B.R. (2d) 220, at para. 24. A right sourced in contract or statute suffices. Moreover, Paul v.

Reilly isauthority for the proposition that the courts of this Province are without jurisdiction to make an order requiring a party to requestdocumentation from a stranger to the action who might, or is expected to, voluntarily comply. Of course, that statement of the law doesnot apply to a situation where, as here in the case of DRUGStore Pharmacy, a request would trigger a legally enforceable right toproduction. For useful insights into the appropriateness of orders requiring a party to use his or her “best efforts” to obtain documentsfrom a third party, see Maureen A. Fiorini, Gary T. Trotter and Anthony M.

Galea, “The Production of Clinical Notes: The ForgottenPerspective” (1988), 9 Adv. Q. 398, at pp. 400-403. B. The bundle of documents with DRUGStore Pharmacy [18] The motion judge ordered Ms. Rumble to produce the

Schedule “D” documents in the possession or control ofDRUGStore Pharmacy on the basis that she had an enforceable right of access to those documents by virtue of the Personal HealthInformation Privacy and Access Act, S.N.B. 2009, c. P-7.05. I respectfully concur with that conclusion, subject to this caveat: Ms.Rumble has an enforceable right to a copy of her personal health information only to the extent it is accessible by her pursuant to the Act(see E.H. v. T.J.W., 2011 MBQB 19, [2011] M.J. No. 26 (QL), at paras. 14-16).

[ 19 ] Section 7(1) provides that “[s]ubject to this Act, an individual has a right, on request, to […] receive a copy of his or her personal health information maintained by a custodian”. DRUGStore Pharmacy is captured by the statutory definition of “custodian”. [ 20 ] Under s. 10(3), a custodian must respond to an individual’s request for production by making his or her personal health information available for examination and copying, unless the information does not exist or cannot be found or there is a valid reason under s. 14 to refuse. The reasons that may be invoked for a total or partial refusal are enunciated in s. 14(1), which reads as follows: 14

(1) A custodian is not required to permit an individual to examine or copy his or her personal health information under this Part (

a) if knowledge of the information could reasonably be expected to endanger the health or safety of the individual or another person, (

b) if disclosure of the information would reveal personal health information about another person who has not consented to the disclosure, (

c) if disclosure of the information could reasonably be expected to identify a third party, other than another custodian, who supplied the information in confidence under circumstances in which confidentiality was reasonably expected, (

d) if the information was compiled and is used solely (

i) for the purpose of review by a committee established to study or evaluate the health care practices of a health care 14

(1) Le dépositaire n’est pas tenu de permettre à une personne physique de consulter ou de reproduire ses renseignements personnels sur la santé sous le régime de la présente

partie dans le cas :

a) où leur connaissance risquerait vraisemblablement de menacer sa santé ou sa sécurité ou celle d’autrui;

b) où leur communication révélerait des renseignements personnels sur la santé concernant une autre personne qui n’a pas consenti à leur communication;

c) où leur communication risquerait vraisemblablement de révéler l’identité d’un tiers, à l’exception d’un autre dépositaire, qui a fourni les renseignements sous le sceau du secret dans des circonstances rendant vraisemblable l’attente au respect de la confidentialité;

d) où ils ont été préparés et sont utilisés uniquement :

(

i) aux fins de leur consultation par un comité constitué en vue de l’étude ou de l’évaluation des pratiques qui ont cours facility, (ii) for the purpose of a body with statutory responsibility for the discipline of health care providers or to regulate the quality or standards of professional services provided by health care providers, or (iii) for the purposes of risk management, error management or for the purpose of activities to improve or maintain the quality of care or to improve or maintain the quality of any related programs or services of the custodian, (

e) if the information was compiled principally in anticipation of, or for use in, a civil, criminal or quasi-judicial proceeding to which the custodian is or may be a party or is protected by privilege, (

f) if the information is protected by privilege, (

g) if another Act of the Legislature or the Parliament of Canada or a court order prohibits disclosure of the personal health information to the individual, (

h) if the personal health information was collected for purposes of an investigation conducted pursuant to an Act of the Legislature, or (

i) for any reason prescribed by regulation. dans le domaine des soins de santé offerts dans un établissement de soins de santé, (ii) pour les besoins d’un organisme qui est responsable, en vertu d’une loi, de la discipline chez les fournisseurs de soins de santé ou afin de réglementer la qualité ou les normes des services qu’ils fournissent, (iii) aux fins de l’évaluation de la gestion des risques ou des erreurs ou l’exercice d’activités visant à améliorer ou à maintenir la qualité des soins ou celle des programmes ou des services connexes du dépositaire;

e) où ils ont été préparés principalement soit en prévision de poursuites civiles, criminelles ou quasi judiciaires auxquelles il est constitué

partie ou est susceptible de l’être, soit pour servir dans le cadre de telles poursuites ou sont privilégiés;

f) où ils sont privilégiés;

g) où une autre loi provinciale ou fédérale ou une ordonnance judiciaire interdit leur communication à la personne physique;

h) où ils ont été recueillis dans le cadre d’une enquête et conformément à une loi provinciale;

i) pour tout autre motif prévu par les règlements. Under s. 14(3), a custodian who refuses an individual’s request for a copy of his or her personal health information is required to “sever the personal health information that cannot be […] copied and permit the individual to […] receive a copy of the remainder of the information”. [ 21 ] In my view, the order for production of the DRUGStore Pharmacy “documents” is overly broad.

DRUGStore Pharmacy must comply with the Personal Health Information Privacy and Access Act and, as a result, it may be required to exclude some information from the package to be transmitted to Ms. Rumble. It follows that her statutory right of access does not necessarily extend to all of the “documents” in the possession or control of DRUGStore Pharmacy. Accordingly, I would vary the impugned order to provide for Ms. Rumble’s production for inspection of any and all “documents” released by DRUGStore Pharmacy pursuant to the Act . C.

The bundle of documents with Rehabilitation Alternatives [ 22 ] Rehabilitation Alternatives is not a “custodian” within the meaning of the Personal Health Information Privacy and Access Act . Just as significantly, Ms. Rumble is not its “patient” and, as one would expect, the respondent does not argue the documents in the possession of Rehabilitation Alternatives are covered by the Court’s observations in Stone v. Sharp , at paras. 23-24 and 28 , regarding the issue of “control” over documents that relate to a patient. [ 23 ] The motion judge ordered Ms.

Rumble produce “the documents in the possession or control of Rehabilitation Alternatives”. She did so without finding those documents were in Ms. Rumble’s control. As mentioned, that is a condition precedent to an order for the production by a party of documents in the possession or control of a stranger to the action. In fact, nothing in the record substantiates the respondent’s contention that the requisite legally enforceable right arises by implication from Ms. Rumble’s retainer of Rehabilitation Alternatives.

The retainer in question is not part of the record, and the respondent has not drawn to our attention any binding authority, whether judicial or statutory, for the recognition of the requisite enforceable right in these circumstances. Accordingly, I would set aside the order directing Ms. Rumble to produce for inspection the

Schedule “D” documents in the possession or control of Rehabilitation Alternatives. IV. Conclusion and Disposition [ 24 ] For the reasons provided hereinabove, I would allow the appeal, in part, with costs. [ 25 ] More precisely, I would set aside the order requiring the appellant produce for inspection the documents in the

possession or control of Rehabilitation Alternatives. The record does not establish those documents are in the possession or control of the appellant. [ 26 ] Additionally, I would vary the order for production by the appellant of the documents in the possession or control of DRUGStore Pharmacy to specify that it relates solely to the documents to which she is given access pursuant to the Personal Health Information Privacy and Access Act . [ 27 ] Finally, I would wrap up the proceedings by ordering the respondent pay costs on appeal in the amount of $2,500.