BETH BROWN KIRK Plaintiff – v. –, 2022 NBKB 226

Citation: 2022 NBKB 226 Date: November 3, 2022 Docket: MC-143-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: BETH BROWN KIRK Plaintiff – and – EXXONMOBIL BUSINESS SUPPORT CENTRE CANADA Defendant Date of Hearing: November 3, 2022 Date of Decision: November 28, 2022 Subject Matter: Motion – Re: Rule 37.02 Before: Justice E. Thomas Christie At: Burton, New Brunswick Appearances: Natalie C. MacDonald and Danielle Johnson for the Plaintiff Clarence L. Bennett, K.C., and Lara J.

Greenough for the Defendant Christie, J. [ 1 ] On November 3, 2022, counsel for the parties appeared before me, in the Judicial District of Fredericton, to argue a Motion by the Defendant, Exxon, seeking the dismissal of the Plaintiff’s claim. The underlying action was commenced in the Judicial District of Moncton. Yet, as a result of certain administrative factors which will be described below, the Motion was set to be heard in the Judicial District of Fredericton. In preparation for the hearing, I came to realize that this was a Motion on a Moncton file.

Typically, such Motions are heard in the originating judicial district. At the commencement of the hearing, I questioned counsel on whether the matter should be returned to the Moncton jurisdiction for determination. Following arguments from counsel, I ruled that, given the nature of the relief sought, the matter be returned to Moncton for determination of the merits. These written reasons reflect, in substance, those given orally on November 3 rd . [ 2 ] Prior to the appearance before me on November 3 rd , additional issues arose.

Counsel for the Plaintiff requested leave to cross- examine certain deponents on their affidavits. Counsel for the Defendant sought direction on the striking of numerous paragraphs in several affidavits filed on behalf of the Plaintiff. Furthermore, it was the intention of counsel for the Plaintiff to participate in the hearing via video conference but, as is sometimes the case with technology, it did not work. Counsel was able join in by telephone but expressed the view that doing so was less than ideal from an advocacy perspective. She asked for an adjournment. It was granted.

Nevertheless, for a variety of reasons, what started out as a ‘straight forward’ motion for

summary judgement became complicated by additional preliminary legal issues and technology failures. However, this matter gives the court the opportunity to consider where motions, of the type at issue here, should be filed and heard. Rule 37.02 may appear to provide options. It states as follows:

37.02 A motion shall be made in the judicial district (

a) in which the proceeding was or will be commenced, or (

b) where the solicitor of record for a party has given an address for service, on a date to be fixed by a judge in that district. [3] A brief review of how this Motion came to be filed in Fredericton is necessary. The underlying claim relates to the Plaintiff’sdismissal from her employment with Exxon. The Notice of Action with Statement of Claim Attached was, as noted above, filed in theJudicial District of Moncton.

In addition to filing the action against Exxon, the Plaintiff filed two complaints (on different dates and ondifferent issues) with the New Brunswick Human Rights Commission relating to issues arising from the termination of her employment.Both complaints were eventually dismissed by the Human Rights Commission. The Plaintiff, by separate Applications, sought judicialreview of the dismissals. One of the applications for judicial review was filed in the Judicial District of Fredericton and assigned aFredericton file number.

A date was set for the judicial review hearing. [4] As the date for the hearing of the judicial review approached, counsel for Exxon filed the Motion for

summary judgement of thepresent action in Fredericton requesting it be heard at the same time as the related, but administratively separate, judicial reviewapplication. The judge reviewing the filing refused to allow it to be heard at the same time. Nevertheless, the Motion was given its ownreturn date in Fredericton. As it turned out, both judicial review applications were ultimately withdrawn by the Plaintiff. What remainedon the Fredericton docket was Exxon’s

summary judgement motion of the action which was commenced in Moncton. [5] Counsel for Exxon was direct in noting that the

summary judgement motion was filed in Fredericton in the hope that the motioncould ‘piggy-back’ on the court’s time allotted for the judicial review set for Fredericton. Counsel for Exxon was of the view thatreliance on Rule 37.02(

b) would be sufficient, given counsel’s address for service being in Fredericton. [6] Generally speaking, one would expect that motions on proceedings commenced in one judicial district be heard and overseen bythe court in that jurisdiction. Thus, the statement in the Rule that motions shall be made in the judicial district where the proceeding wascommenced. Counsel acknowledged that such an approach is the prevalent practice of the Bar. Otherwise, motions heard in differentjudicial districts on the same case could results in a lack of continuity in the manner in which the file proceeds.

Nevertheless, the Ruledoes recognize that the location of counsel’s address of service could also be a reference point for filing motions, regardless of thedistrict where the matter was commenced. [7] This issue was discussed by Justice Miller in Gagné v. Caron, (1986) (NB KB), 77 N.B.R. (2d) 117(N.B.Q.B.). Like the motion before me, Justice Miller was dealing with a motion to strike a claim. He notes, and correctly so in my view,that the question is not to be viewed as a test of the jurisdiction of any judge to determine the matter. Justices of the court exercise theirauthority throughout the Province.

Justice Miller does note that: 15. I cannot, however, interpret this Rule as giving a right to a solicitor of record to have all procedural motions heard at a place mostconvenient to him regardless of the inconvenience to other parties. 16. It is my view, that such a notice of motion [striking of a pleading] should be brought in accordance with R. 37.02(a), that is, in thejudicial district in which the proceeding has been commenced. 17.

It must be recognized that there are circumstances in which a different judicial district is more convenient for all parties concerned.There may be occasions when a judge other than a judge sitting in the judicial district in which the action will be tried may provide amore proper forum in which to hear a particular motion. [8] In Millstream Service Center Ltd. v. Sakell, 2001 CarswellNB 85, Justice Creaghan, also dealing with a motion for

summaryjudgement, adopts Justice Miller’s approach writing: 7. In addition, the Plaintiffs have drawn my attention to Gagné v. Caron, (1986) (NB KB), 77 N.B.R. (2d) 117(N.B.Q.B.), a decision of Mr. Justice Miller of this court which holds that regardless of Rule 37.02(

b) a solicitor of record cannot as amatter of right bring all procedural motions before a judge of the judicial district in which he or she resides rather than in the judicialdistrict in which the action is commenced. 8. Regardless of the rule in this regard the court retains control of its own process and can, where it considers appropriate and fairnessand convenience to all interested parties, require procedural motions to be heard in the judicial district where the action was commencedregardless of the residence of the solicitor of record. [9] I have also been directed to the reasons of Justice Grant in New Brunswick v. Grant Thornton LLP, 2015 NBQB 95 where, at

para. 21 , he recognizes that there may be pre-trial issues, an example being management of documents, that could be heard in a jurisdiction other than the originating district. 21. As for the pre-trial process, inspection of documents, which I would expect are voluminous, can be done, as some already have, where they are normally located and if there are issues such as moving documents to put another party to a greater expense that can be supervised by the court by way of a motion if necessary.

Motions can be taken out in accordance with rule 37.02 either in the judicial district where the action was commenced or where a solicitor of record has an address, i.e. either in Saint John of Fredericton. [ 10 ] In my view, motions for

summary judgement are, absent exceptional circumstances, intended to be filed and heard in the district where the action was commenced. This is consistent with the general practice of the Bar, as explained to me by counsel. I would expect this approach to also be applicable with most motions on substantive issues in a case. Justice Grant’s reasoning, which I adopt, supports a broader discretion on minor, pre-trial matters.

This approach allows for circumstances in which it is necessary, or more judicially efficient for other reasons, to file pre-trial motions elsewhere than the originating judicial district, in accordance with Rule 37.02(b). [ 11 ] Recognizing the substance of the Motion before me and, knowing that there would first need to be rulings made on the scope of any cross examination on affidavits and rulings made on the requests to strike numerous paragraphs of certain affidavits, and given that an adjournment had been granted due to video conferencing issues, it was my view that the Motion be returned to the Moncton judicial district.

I so ordered. [ 12 ] As a final side note, immediately after the within ruling was made, the parties were agreeable to converting the proceeding to a settlement conference before me under Rule 50.07. The parties were successful in resolving the entire matter and it is not anticipated that further involvement of the court will be required. I commend all counsel, and their Clients, for their efforts in finding an acceptable resolution to the complexities this file turned out to have. __________________________ Justice E. Thomas Christie Court of King’s Bench of New Brunswick, Trial Division