Morrison v. Nova Scotia (Attorney General), 2012 NSSC 136

SUPREME COURT OF NOVA SCOTIA Citation: Morrison v. Nova Scotia (Attorney General), 2012 NSSC 136 Date: 20120326 Docket: Hfx 192118 Registry: Halifax Between: Gerald Allan Morrison Plaintiff v. The Attorney-General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia, and the Childrens’ Aid Society of Halifax County, a body corporate, and The Nova Scotia Home for Colored Children, a body corporate Defendants. Judge: The Honourable Justice Patrick J.

Duncan Date Heard: February 28, 2012 Final Written Submissions : March 7, 2012 Counsel: Raymond Wagner Michael Dull for the plaintiff John Kulik for the defendant, The Nova Scotia Home for Colored Children Cheryl Canning for the defendant, Childrens’ Aid Society of Halifax County Catherine Lunn for the defendant Attorney-General of Nova Scotia By the Court (Orally): [ 1 ] The original motion brought by the plaintiff sought that: ... the defendant, Nova Scotia Home for Colored Children, inspect the contents of the files of every former resident of the Home that it has in its possession, and provide copies of any documents contained within these files that in any manner relate to the mental, physical or sexual abuse suffered, witnessed, or complained about at the NSHCC.

[ 2 ] The request was narrowed substantially through the course of submissions as discussed below. BACKGROUND [ 3 ] The plaintiff was born November 22, 1952. At the approximate age of 2 years and four months he was placed by the Children’s Aid Society of Halifax at the Nova Scotia Home for Colored Children, where it appears that he resided from March 18, 1955 to October 15, 1959. [ 4 ] On January 8, 2003 the plaintiff filed a Statement of Claim against the Home and the two co-defendants alleging that he suffered abuse while a resident at the Home.

The parts of that Claim which are relevant to the action against the Home, and therefore are relevant to this motion, are paragraphs 4, 7, 8, 9, 10, 13 and 18-23. [ 5 ] Demands for Particulars were made on the plaintiff and Answers filed. The defendants have all filed Statements of Defence.

Having reviewed the materials, the plaintiff’s allegations may be summarized as follows: - that he was sexually assaulted by a person known to him as “the Matron”, specifically that she went into the bathroom to hurry him up and on four occasions grabbed his penis; - the Matron forced him to eat feces; - an unknown staff member forced his face into a maggot infested rabbit carcass, that the plaintiff recalls as his pet; - an older resident pushed him off a slide causing him to land on a piece of wood with a spike in it that penetrated his foot and caused him to need medical attention; - an older resident pushed him into a lake known to be infested with leeches and he did get covered with leeches that had to be removed; - that he was taunted by staff and other residents because of his “Asian” appearance and who told him that he should not be at the Home; - that he was refused supper on one occasion after he professed to be too ill to assist in blueberry picking; - that he was beaten with a strap on his hands, buttocks and legs on approximately 6 occasions, by staff members known to him as Mr.

Drummond and Mr. Bundy; - and finally, that he witnessed various instances of physical abuse upon other residents. [ 6 ] Arising from these allegations, Mr. Morrison claims for damages on the following bases:

- Negligence - Vicarious Liability - Breach of Fiduciary Duty, and - Breach of Contract [ 7 ] The Defendants deny liability. POSITION OF THE PLAINTIFF [ 8 ] The plaintiff has filed three affidavits in support of the motion. [ 9 ] A solicitor’s affidavit of Michael Dull attaches a number of the background documents, including exchanges of correspondence between the parties on the issue of the sought after production.

He states that plaintiff’s counsel represents a total of approximately 56 individuals, each of whom are former residents of the Home and each of whom have claims filed alleging similar abuses to that alleged by Mr. Morrison. Mr. Dull asserts that the claims of these various persons “are rooted in systemic abuse”. (see, para. 5; Michael Dull affidavit). [ 10 ] I also have the affidavits of Kathy Ridgley and Leonard Smith, both former residents of the Home, that speak to events they observed or experienced at the Home several years after Mr.

Morrison’s residency there had ended. [ 11 ] The plaintiff argues that there is adequate reason to believe: “There is a possibility that these files will show that other former residents complained of, or suffered, abuse at the NSHCC”. (see, para. 9; plaintiff’s Brief). [ 12 ] I have been referred to paragraph 11 of the Claim which alleges that the defendant: NSHCC through its agents, employees and servants created an atmosphere of tolerance and encouragement of excessive mental, physical and sexual abuse such that the repugnant practices pervaded the Home and the relationships between the residents of the home as well as the agents, employees, servants and residents of the Home. [ 13 ] It also alleges a failure by staff to appropriately respond to complaints of abuse.

The plaintiff lays out several grounds in support of a claim of breach of fiduciary duty. [ 14 ] Relevance, in the submission of the plaintiff is thus tied to the question of whether the defendants knew, or should have known about the prevalence of abuse at the Home. Counsel states: It follows that any documentation in the files of former residents, which is in any manner related to the atmosphere of excessive mental, physical and sexual abuse which is alleged to have pervaded the NSHCC, is relevant. (see, para. 24; Plaintiff’s Brief).

[ 15 ] The plaintiff presented the affidavits of Ms. Ridgley and Mr. Langford to support the proposition that such information exists and is relevant. They point out that under the defendant’s criteria for search of relevant documents, the information of these individuals would not have been captured. [ 16 ] In

summary, the plaintiff says that the defendant Home has incorrectly concluded that it does not need to review a number of resident files for relevancy and that that decision relies on criteria that the plaintiff says is flawed. [ 17 ] During oral submissions, counsel for the plaintiff clarified that: - The material sought is only to show that management received but did not appropriately act upon complaints of resident abuse, as such information is relevant to a claim in negligence against the Home; - The plaintiff does not seek the names or other identifying information of the non party residents whose information is to be searched; - The implied undertaking rule will apply to any materials received by the plaintiff under the terms of the proposed order; - That the time frame for the search could be narrowed to the period of 1940-1959.

POSITION OF THE DEFENDANT HOME [ 18 ] The defendant Home submits that the plaintiff’s obligation in trial is to prove that: 1. The alleged incidents occurred; 2. The incidents were caused by the Home’s negligence, breach of fiduciary duty or breach of contract; 3. Or caused by the negligence, breach of fiduciary duty or breach of contract by a person for whom the Home is vicariously liable; 4. The incidents caused him damage; and 5. He is entitled to damages. [ 19 ] The defendant says that there are three concerns with the request of the plaintiff:

1. The information in other resident files is not relevant as there is no nexus in time or in fact to the claim; 2. There is little of probative value likely to be found and the cost of looking for it is disproportionate to that value; 3. The information in the materials requested is personal information akin to a medical or psychiatric record, and is the property of non-parties who have not received notice of the request to access their information. [ 20 ] Notwithstanding this position the defendant Home has offered to conduct the requested search if: 1.

The plaintiff bears the cost, estimated to take 50 hours to be charged at $95 per hour; 2. Any documents found would be redacted to remove any information that might tend to identify the resident from whose file the information was obtained; and 3. The plaintiff must agree to abide by the implied undertaking rule in relation to any information disclosed.

LEGAL PRINCIPLES [ 21 ] As the action was started prior to January 1, 2009, and Lists of Documents were also filed prior to that date, this motion is governed by the provisions of Nova Scotia Civil Procedure Rules (1972). see, Nova Scotia Civil Procedure Rules 92.02(1) (

b) and 92.04(c). [ 22 ] While this motion was framed as being pursuant to the current Rule 14, in fact the applicable provision is CPR

(1972) Rule 20.06 which states: Order for production of documents 20.06

(1) The court may order the production, for inspection by any party or the court, of any document relating to any matter in question in a proceeding at such time, place and manner as it thinks just.

(2) Where a document is in the possession, custody or control of a person who is not a party, and the production of the document might be compelled at a trial or hearing, the court may, on notice to the person and any opposing party, order the production and inspection thereof or the preparation of a certified copy that may be used in lieu of the original.

(3) An order for the production of any document for inspection by a party or the court shall not be made unless the court is of the opinion that the order is necessary for disposing fairly of the proceeding or for saving costs and is not injurious to the public interest.

[23] Cases decided under this provision held that the discovery rule “is to be given a liberal or wide

interpretation”. See, Upham v.You (1986), (NS CA), 73 N.S.R. (2d) 73 (C.A.) at 79; McCrea v. Historic Properties Limited (1988), (NS CA), 89 N.S.R. (2d) 201 (C.A.) at 203; Coughlan v. Westminer Canada Holdings Limited (1989), (NS CA),91 N.S.R. (2d) 214 (C.A.) at 221; McRea v. Canada Newspapers Co. (1993), 1993 NSCA 204 , 126 N.S.R. (2d) 212 (C.A.) at214; Gould Estate v. Edmonds Landscape & Construction Services Limited (1994) 1994 NSCA 34 , 127 N.S.R. (2d) 365 (C.A.)at 369. The view has been that Rule 20 should be interpreted “to ensure the fullest possible disclosure of the facts and issues beforetrial”.

See, CMHC v. Foundation Company of Canada Limited (1982), (NS CA), 54 N.S.R. (2d) 43. [24] The broad words of Rule 20.06(1) provide for production of any document “relating to any matter in question in aproceeding”. It has always been acknowledged that there are difficulties in determining relevancy at this stage of a proceeding. In thecase of Toronto Board of Education Staff Credit Union Ltd. v. Skinner et al (1984), 46 C.P.C. 292 the court states, at 296: The Court cannot at this stage lay down precise rules as to what is or is not relevant to the issues pleaded.

If, however, the documentshave a semblance of relevancy, they should be declared producible, leaving it to the trial Judge or the Judge hearing the final applicationto make the determination of relevancy at that time. Meaning of relevancy [25] The starting point of any analysis is to assess the meaning of relevance in Evidence law generally.

I have considered thehelpful review of case and academic authority that discusses the meaning of “relevance”, provided by LeBlanc, J. in Murphy v.Lawton’s Drug Stores Ltd. 2010 NSSC 289, at paras. 14-20. [26] The following are representative statements of the law by which I have guided myself in making the findings set out herein.

At page 30 in The Law of Evidence, 5th ed. revised, (Paciocco, David M.; Struesser, Lee) (Toronto: Irwin Law, 2010) the authors describethe concept of relevance: Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it isadvanced more likely than that proposition would appear to be in the absence of that evidence. To identify logically irrelevant evidence,ask, “Does the evidence assist in proving the fact that my opponent is trying to prove?” ... There is no legal test for identifying relevantevidence. [27] In R. v.

Arp, (1998), (SCC), 129 C.C.C. (3d) 321 the Supreme Court of Canada said: To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. Theevidence must simply tend to ‘increase or diminish the probability of the existence of a fact in issue.’ ...

As a consequence, there is nominimum probative value required for evidence to be relevant. [at p. 338] [28] Sopinka, Lederman and Bryant, in The Law of Evidence in Canada, 3rd ed. (Markham: Lexis Nexis Canada, 2009), state, atpara. 2.35: 2.35 A traditionally accepted definition of relevance is that in Sir. J.F.

Stephen’s A Digest of the Law of Evidence, where it is defined tomean: ... any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itselfor in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

[ 29 ] There are degrees of relevance. The concept is discussed in Witnesses (Mewett, Alan W.; Sankoff, Peter) (Toronto: Carswell, looseleaf 1991 as updated to 2011-Rel. 2), at p. 1-13: Relevance is not a black or white concept. Evidence may range all the way from being conclusive proof of an issue down to being vaguely and only of the slightest assistance and from there down to the point when it ceases to be relevant.

While there is no difficulty in determining relevance at the upper end of the scale, the problem that arises is usually at the lower end of the scale. [ 30 ] So information may be relevant, though “only of the slightest assistance’. ANALYSIS [ 31 ] There is a presumption that the parties will disclose that which bears some semblance of relevancy. The defendant has provided information as to how it sought to fulfill that obligation to this point in time.

Two paralegals were tasked, on two different occasions, with conducting a search of documents for the entire period covering all of the outstanding claims, a time frame much wider than that in Mr. Morrison’s case.

The last claim, chronologically, has an end date of 1988 or 1989 and that framed the search. [ 32 ] The Defendant has disclosed: - all documents contained in the plaintiff’s resident file; - all available files of any staff member or resident that the plaintiff alleges abused him at the Home; - all available resident and staff files of every person alleged to have committed abuse, by any of the 55 plus plaintiffs that are represented by plaintiff’s counsel; - any other document thought to contain information that might be relevant to the plaintiff’s claim. [ 33 ] What the defendant did not do is review the contents of the files for residents who are not plaintiffs against the Home, except where that resident is alleged to have been an abuser. [ 34 ] The plaintiff candidly acknowledges that it has put forward no evidence to say what might be found in the files of these non- party residents.

To that extent the search might be said to be a “fishing expedition”. [ 35 ] Nevertheless, the plaintiff argues, the defendant Home is not fulfilling its responsibility when it refuses to even look in the files to see what might be there, and that has not been found to date.

An example offered is if a resident complained of abuse when it may be evidenced in the resident’s file, but may not have been recorded in the staff files, or was perhaps expunged from the administrative files at some point over the intervening years. [ 36 ] The plaintiff’s request is for information that is likely to be collateral to the actual claims of abuse he says was perpetrated upon him. The justification offered is that it will show that there was an “atmosphere” that promoted, or permitted, the abuse to take place. Whether such information exists is a matter of speculation at this point.

If it does, then it is unlikely to offer direct evidence of abuse upon Mr. Morrison.

[ 37 ] If I assume the existence of the requested information then how might it be relevant to proving the claim of the plaintiff at trial? [ 38 ] It is apparent that in order for the plaintiff to succeed, the incidents of abuse must be proven. Whether an “atmosphere” of abused existed will not relieve the plaintiff of that burden.

Plaintiff’s counsel says if that evidentiary hurdle is overcome, then information which shows that the Home’s management was aware of systemic abuse against the residents, and that it failed to provide an adequate response to that abuse, will support the claim of negligence against the Home in how it fulfilled its responsibilities for the care of the residents. [ 39 ] The information might be sought to advance propensity reasoning, that is, that because abuse happened to other residents it is more likely to have happened to the plaintiff.

That type of reasoning is generally forbidden, and in oral argument counsel for the plaintiff indicated it would not be pursuing that avenue of attack. [ 40 ] It could be adduced as evidence of similar fact, sometimes referred to as similar act evidence. Such evidence is presumptively inadmissible, however there are circumstances in which such evidence may be admissible. see R. v. Handy 2002 SCC 56 . It seems likely that any information of similar fact in relation to the staff conduct toward Mr.

Morrison would have been captured by the search and disclosure already undertaken by the Defendant Home. [ 41 ] I note, parenthetically, that no evidence has been adduced in support of this motion that such similar fact evidence exists. The two affidavits before me speak to a time frame years after the plaintiff left the Home. There is no evidence to suggest that the alleged perpetrators in those cases were employed with or had contact with the plaintiff in the relevant time frame of his residency. The allegations are not similar to those of Mr.

Morrison’s. [ 42 ] The next question is whether there is any semblance of relevancy to the claim of the plaintiff of information about misconduct of the staff and other residents for the requested time period 1940-1955; even where it did not involve the plaintiff. (I note that in its original form the plaintiff’s motion sought information dating back to the inception of the Home in 1921.) [ 43 ] As to this time frame, plaintiff’s counsel says that the possibility of the existence of similar fact evidence, or that the Home had engaged in an extended period of negligence in responding to complaints of abuse, is best measured against the period starting in 1940.

While not conceding the issue, the defendant’s counsel says that if these are valid reasons for inquiry then they can best be assessed by looking at the records for a year or two prior to and including Mr. Morrison’s residency. i.e., 1953-1959. [ 44 ] I conclude, given the evidence and representations on the motion, that there is little left to find; however, if the information sought by the plaintiff exists then there is a semblance of relevancy of that information.

Specifically, it may inform the issue of negligence on the part of the Home. [ 45 ] I agree with the defendant that there is an insufficient evidentiary basis upon which to say that a nexus exists between the sought after information and the claims for the extended time sought by the plaintiff. [ 46 ] I conclude that there is a basis upon which to require the defendant Home to inspect the non-plaintiff, non-abuser (alleged) resident files for the period September 1, 1954 (being approximately six months prior to what we understand was Mr.

Morrison’s date of entry to the Home) to December 31, 1959 (being 2.5 months after the time when his residency is thought to have ended). If I was confident that he did leave the Home on October 15, 1959, then that would have been the end date, but there seems to be some uncertainty and so this extended time frame should adequately address that problem. [ 47 ] The search is to be for any documents that in any manner relate to allegations of mental, physical or sexual abuse suffered, witnessed, or complained about at the NSHCC during that time period, whether or not it referred specifically to Mr. Morrison.

Confidentiality

[ 48 ] I am very concerned that the material to be inspected is the confidential file information of third parties who were minors at the time that the information was created.

The plaintiff seeks to obtain copies (albeit redacted to protect the identities of those residents) of that information and without prior notice to those persons. [ 49 ] I am satisfied that there is a way the information, if it exists, can be considered for disclosure to the plaintiff and still provide appropriate protections to those residents whose information may be put at issue. [ 50 ] Having regard to the purposes for which the plaintiff’s counsel says it seeks this information, any ultimate release of documents to the plaintiff will be redacted so as to remove any information that would tend to identify the resident.

This is consistent with the stated focus of the plaintiff’s interest which is not whether such an incident actually occurred, but to assess the response of the defendant’s managers to receiving such a complaint. The redaction would not apply to the names of the staff involved in the incident or who responded to the complaint. [ 51 ] I direct that the defendant Home seal a copy of the original file information (not redacted) which it concludes would be producible to the plaintiff pursuant to this Decision and under the 1972 Civil Procedure Rules .

The defendant will then file that material with a motion to this court for directions as to: - Whether and in what manner notice must be provided to the affected resident of the intended release of information; - Whether the material may be disclosed if the affected resident cannot be located. [ 52 ] The defendant should also provide any information it has at that time that will assist the court in determining the ability to locate the affected residents.

Given my familiarity with the matter, it may be preferable if the motion was brought before me for consideration and disposition, but that is not a requirement of this decision. Cost of disclosure [ 53 ] I have little evidence from the defendant as to the burden which this search might represent to them in terms of the financial resources of the defendant Home. I have no evidence from the defendant which would assist me in assessing the probative value of the materials to be searched for in a time period of 1954 to 1959.

The defendant’s estimate of $5000 to conduct the search was an estimate for looking at all of the records of the non-party residents for a period of 1921-1989. Presumably, a much narrow time frame will greatly reduce the cost burden, which normally must be borne by the producing party. [ 54 ] I see no reason to deviate from the usual requirement that the costs of disclosure fall on the disclosing party.

Therefore, the cost of the inspection and disclosure will be met by the defendant Home, without contribution from the plaintiff. [Discussions as to the procedure for bringing the motion for directions] COSTS [Oral submissions of counsel as to costs]

[ 55 ] As the results are mixed each party will bear their own costs. [ 56 ] Order accordingly. Mr. Wagner is directed to prepare the Order. J.