Jane Doe (#11) Plaintiff And: Her Majesty in Right of Newfoundland v. Labrador, 2018 NLSC 226

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jane Doe (#11) v. Newfoundland and Labrador, 2018 NLSC 226 Date : November 13, 2018 Docket : 201801G4383 Between: Jane Doe (#11) Plaintiff And: Her Majesty in Right of Newfoundland and Labrador Defendant Before: Justice David B. Orsborn Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 6, 2018

Summary: Shortly after pleadings were closed, the plaintiff filed an application that the defendant file and produce her list of documents by a specific date. HELD: the Court ordered the list to be filed by December 14; however, the Court found that the application was avoidable and that, in the circumstances of the litigation, the position taken by the plaintiff was unreasonable. Notwithstanding the wording of the rule in question, counsel should have settled upon a reasonable date for document production without recourse to the Court. Appearances: Lynn M. Moore Appearing on behalf of the Plaintiff Donald E. Anthony Appearing on behalf of the Defendant

Authorities Cited: CASES CONSIDERED: Marco Ltd. v. Newfoundland Processing Ltd. et al. (1995), (NL SC), 130 Nfld. & P.E.I.R.308 (NSCTD); Lundrigan Group Ltd. v. Pilgrim (1989), (NL CA), 75 Nfld. & P.E.I.R. 217 (NLCA); Hryniak v.Mauldin, 2014 SCC 7; Szeto v. Dwyer, 2010 NLCA 36 STATUTES CONSIDERED: Children and Youth Care and Protection Act, S.N.L. 2010, c. C-12.2; Victims of Crime Services Act,R.S.N.L, 1990, c. V-5 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D.; REASONS FOR JUDGMENT Orsborn, J.: INTRODUCTION [1] The pleadings in this matter closed on October 5, 2018.

Six days later the plaintiff issued an application for an order that thedefendant file her list of documents on or before October 31, 2018. The plaintiff also sought an order for case management, whichrequest was subsequently withdrawn. [2] Rule 32.01(1) of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D., is straightforward: 32.01 Unless the Court otherwise orders, a party to a proceeding shall, within ten days after the close of the pleadings…file and serveon the opposing party a list in Form 32.01A of the documents of which the party has knowledge at that time relating to every matter inquestion in the proceeding… [3] At the hearing, counsel for the plaintiff suggested that the defendant was not putting sufficient time and resources into herdocument production obligation and was delaying production without explanation.

She urged the court to set a time requirement and, inso doing, to stress the need for timely production. issue [4] What, if any, timelines should the Court impose on the defendant for document production? What are the obligations ofcounsel when considering the timing of document production in any particular case? [5] In my view, a literal and fixed application of the rule is not appropriate.

The timing of document production must begoverned by reasonableness, fairness, practicality and the circumstances of the litigation in question. background [6] The plaintiff, born in 1978, seeks damages for physical and emotional abuse said to have occurred while she was in variousfoster homes. Her brief of argument on this application begins: The Defendant is not refusing to provide documents, but is refusing to provide documents in a timely fashion. It is hoped this Brief willassist the Court in grappling with the notion of reasonableness in terms of timelines for production of documents.

It is further hoped thatthe Court will provide direction to institutional defendants in sexual abuse cases about their responsibility to act in a timely fashion. [7] The statement of claim was issued on August 22, 2018 and served on September 5, 2018. After an initial exchange of emailsbetween counsel, plaintiff’s counsel wrote on October 1, 2018: We are now closing in on a month since the Defendant has had the statement of claim. We provided the Defendant with our List ofDocuments with the Statement of Claim in the hopes of having this matter proceed in a timely fashion. We want to see this action move.

We have suggested waiving the requirement for a Defence in favour of getting the documents and youhave not responded substantively to this request. We suspect that you have not done so because you are very busy. I also suspect thatgetting the documents may be an issue for CSSD. [Department of Children, Seniors and Social Development]. The reason that thesethings are difficult is because your client has chosen to underfund its law firm and to underfund the unit housed in CSSD which providesdocuments.

That unit currently has 196 outstanding requests from citizens seeking access to their own child welfare records (two of

these requests date back to 2014). CSSD takes, on average, 504 days to respond to these requests. I realize we are in a tough economy, but it seems that the Defendant is able to summons funds for projects that it deems important. For instance, in this year, an extra ten million dollars was secured to fund security for Muskrat Falls. There is money for what the Defendant deems to be important. Sadly, it would appear that child sexual abuse is not one of those things deemed important by the Defendant. The delays occasioned by this chronic underfunding occur at the detriment of my client.

Accordingly, I will be using the Rules of Court to have this matter proceed in a timely fashion. Accordingly, we will apply to default/production of documents/case management if we do not receive your Defence on or before 5pm on October 15, 2018 and the documents on or before 5pm on October 29, 2018. We will seek our costs. [ 8 ] Defendant’s counsel replied the next day: Your email is acknowledged as are the timelines you’ve set out.

I am advised that it will be mid-November before I am in receipt of the primary materials that will inform our Defence and constitute our List of Documents as there are pre-existing claims of the same manner that require document production as well. I anticipate that I should be able to file both pleadings by the end of November.

Should you still require a Defence to be filed by October 15, we will have little choice but to file a strict denial defence and apply at a later date to amend to include further and better particulars as are revealed by receipt and review of the documents. … [ 9 ] A defence was filed on October 5, 2018. The Plaintiff’s application for production of documents was issued on October 11. [ 10 ] At the hearing of the application, counsel for the defendant advised that the client (CSSD) had retrieved some 4000 documents to date and that the search process was ongoing.

Approximately 1900 documents have been forwarded to defendant’s counsel in electronic form. [ 11 ] Counsel for the plaintiff says that the defendant’s effort is not good enough and that the wait time for getting production of the documents is neither expeditious nor fair. She characterizes the defendant’s response to her requests as ‘you’ll get them when you get them’, - and views it as ‘high-handed’ and an indication of a power imbalance between the plaintiff and the defendant.

Counsel filed an affidavit showing that the plaintiff had income in 2017 of $7,723 and considers the litigation, if not this particular application, as being between “David and Goliath”. [ 12 ] Counsel expanded on this argument in her brief:

a) Fairness 12. In assessing fairness, notice should be taken of the stature and relative power of the litigants. The Plaintiff is an unemployed woman of 40 years, raised in the foster system. The Plaintiff is of very modest means and her total income for 2017 was less than $10,000.00. The Defendant is the Government of Newfoundland and Labrador. The Defendant has a six billion dollar budget and thousands of employees. This is a David and Goliath situation. 13. Longer litigation means a longer period of time that this matter is in the forefront of the Plaintiff’s mind.

The Court can take judicial notice of the fact that sexual abuse litigation is stressful and anxiety producing for survivors. It is not fair to make the Plaintiff wait simply because the Defendant has other cases. 14. The vastly superior resources at the disposal of the Defendant and the disadvantage faced by the Plaintiff, suggest that the Defendant delaying production of documents is not fair to the Plaintiff.

Whereas there appears to be no unfairness to the Defendant in forcing her to comply with the Rule . [ 13 ] Counsel also suggested that the approach taken by the Court in this case should reflect the need to provide “prompt and fair redress to victims of crime” as set out in the Victims of Crime Services Act , R.S.N.L, 1990, c. V-5. I will say no more about this argument other than I do not find it helpful. analysis

[14] The nature and function of the Rules were comprehensively discussed by Green, C.J.N.L as he then was, in Marco Ltd. v.Newfoundland Processing Ltd. et al. (1995), (NL SC), 130 Nfld. & P.E.I.R. 308 (NSCTD) at paragraphs 11-12: 11 The jurisdiction of this court and the right of litigants to access to the court are determined by the Royal Charter of 1825 and ss. 3and 23 of the Judicature Act and, in this case, by s. 30 of the Mechanics' Lien Act, R.S.N. 1990, c. M-3. The Rules of Court provide theprocedural mechanisms by which claims within that jurisdiction are to be generally enforced.

They operate to facilitate, not frustrate, themovement of litigation through the judicial system. As Goodridge, J. (as he then was), said in Newfoundland (Attorney General) v.Newfoundland Association of Public Employees (1978), 25 Nfld. & P.E.I.R. 147, 36 A.P.R. 147; (NL SC), 84 D.L.R.(3d) 44 (Nfld. T.D.) at p. 48 "the Rules of Court are intended to be the servants and not the masters of those appearing in court", and inUnited Australia Ltd. v.

Barclay's Bank Ltd., [1941] A.C. 1 (H.L.), Viscount Simon, L.C. said at p. 22 in a similar vein, "while admiringthe subtlety of the old special pleaders, our courts are primarily concerned to see that rules of law and procedure should serve to securejustice between the parties". 12 The Rules of Court, then, do not define jurisdiction but set out procedural pathways or guidelines for the conduct of litigation.

Thecourt, in the exercise of its inherent jurisdiction to control its own process and under the Rules themselves, may modify the strictures ofparticular procedural requirements to meet the exigencies of a specific case provided always, of course, any such modification can bedone without trenching on the rights of other parties to a fair and proper hearing. [15] Rule 32.01(1) sets out a “procedural pathway” for the production of documents following the close of pleadings. [16] Rule 3.03 gives the Court specific authority to “extend or abridge” a time period prescribed by the Rules. See LundriganGroup Ltd. v.

Pilgrim (1989), (NL CA), 75 Nfld. & P.E.I.R. 217 (NLCA); Rules of Court annotated - Practice andProcedure – Bar Admission Course 2017, Christopher P. Curran, Q.C. and Chief Justice J. Derek Green at pages 3-10 – 3-12. [17] The defendant did not formally seek an extension of time in this case. [18] In the 23 years since Marco, much has been said about access to timely and cost – effective justice. Steps have been taken tostreamline court procedures and the adjudicative process, all with the objective of providing a fair adjudication following a proceduraljourney that is proportionate to the claim in question.

The notion of proportionality - both in procedure and in the mode of adjudication -was endorsed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. In the context of a

summary judgment application,Justice Karakatsanis said at paragraph 2: 2 Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordableaccess to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from theconventional trial in favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure andaccess struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair andjust. (my underlining) [19] Justice Karakatsanis went on to refer to the decision of the Newfoundland and Labrador Court of Appeal in Szeto v.

Dwyer,2010 NLCA 36, saying at paragraph 31: 31 Even where proportionality is not specifically codified, applying rules of court that involve discretion "includes ... an underlyingprinciple of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, andits timeliness, given the nature and complexity of the litigation" (Szeto v. Dwyer, 2010 NLCA 36, 297 Nfld. & P.E.I.R. 311 (N.L.

C.A.),at para. 53). [20] Of particular interest is her comment on the responsibility of counsel – at paragraphs 32-33: 32 This culture shift requires judges to actively manage the legal process in line with the principle of proportionality... While judgescan and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way thatfacilitates rather than frustrates access to justice.

Lawyers should consider their client's limited means and the nature of their case andfashion proportionate means to achieve a fair and just result. 33 A complex claim may involve an extensive record and a significant commitment of time and expense. However, proportionality isinevitably comparative; even slow and expensive procedures can be proportionate when they are the fastest and most efficientalternative.

The question is whether the added expense and delay of fact finding at trial is necessary to a fair process and justadjudication. (my underlining) [21] Four years before Hryniak, Szeto incorporated the principle of proportionality into the

interpretation and application of theRules. The Chief Justice stressed that, in so doing, the Court was requiring the parties to pursue an expeditious path to the finaladjudication on the merits. Although the decision was in the context of a rule which contemplated the Court’s exercise of discretion, Iconsider it would be too narrow an

interpretation of Szeto – particularly in light of Hryniak - to limit its application to rules which involve

the exercise of judicial discretion. [ 22 ] From the decision in Marco on the ‘subservient’ nature of the Rules and the clear culture shift direction in Sezto and Hryniak , I consider the following

summary to reflect both how procedural rules should be viewed, interpreted and applied in today’s civil litigation, and also how litigation counsel must accept responsibility to facilitate an expeditious and cost-effective pathway to the eventual adjudication: 1. The Rules set a procedural pathway to facilitate the progress of litigation through to its adjudication. They are a means to an end, not an end in themselves. 2. The Rules are at all times subject to the inherent jurisdiction of the Court to control its own processes and to address the circumstances of any particular litigation. 3.

The Rules should be used, interpreted and applied with the aim of securing cost-effective and timely access to a fair adjudication on the merits. 4. Cost-effective and timely access to justice demands that, without detracting from the right to a fair adjudication, the procedures contained in the Rules be interpreted and applied with flexibility and in a manner that is proportional to and in harmony with the needs of the litigation in question. 5. Facilitating and promoting a culture shift in civil litigation is a professional obligation resting on all counsel.

Counsel are under an obligation to make every reasonable effort to reach agreement on procedural issues. It is the responsibility of the parties, guided by their counsel, to apply a ‘realty check’ before applying for a procedural order or demanding strict compliance with the requirements of a particular rule. [ 23 ] Is the ten day time limit in rule 32.01(1) a mandatory ‘iron rail’ that allows for no flexibility? Does it trigger a ten day entitlement to a list of documents in all cases? In my view, the answer must be no.

The opening words of rule 32.01(1) – “Unless the Court otherwise orders…” reflect a flexibility inherent in the rule and confirm the jurisdiction of the Court to set a time limit that is responsive to the reality of any particular claim.

Further, and particularly in light of the culture shift endorsed in Hryniak , a cost-effective and efficient civil litigation process must allow for the modification of the ten day limit through the agreement of counsel. [ 24 ] Counsel for the plaintiff knows the claim that is being advanced and will have a good sense of its complexity and the nature and extent of production required of both sides.

Counsel for the defendant will, following the service of the statement of claim, require some time to assess the nature of the claim, consider potential defences, and appreciate the general parameters of the disclosure obligation. [ 25 ] The ten day requirement should be viewed as a default time limit or perhaps a minimum time to allow for production of a list of documents. It should be viewed as a starting point for the important pre-trial disclosure and discovery processes.

It is a time constraint that, while on its face mandatory, should not be applied when the circumstances of the litigation, reasonably assessed, make considered compliance impossible.

As Justice Karakatsanis said in Hryniak “a complex claim may involve an extensive record…”. [ 26 ] If on careful consideration of the time required to file a list of documents, counsel - usually for the defendant - forms the opinion that further time is required, the appropriate course is to immediately communicate with opposing counsel and to provide as much information as possible on the nature of the search required, the anticipated extent and nature of production and the length of time needed to compile a list of documents that is responsive to the claims and defences being advanced. [ 27 ] It is then the responsibility of opposing counsel to assess the reasonableness of the position advanced, to discuss the matter further if necessary and, all things being equal, to reach an agreement on when a primary list of documents should be produced. (I say “primary” simply because other documents may later come to light that were either not disclosed or not initially considered relevant; supplemental disclosure may be necessary). [ 28 ] Such an approach reflects the obligation of all counsel involved in the matter to approach disclosure and other procedural issues in a manner that is reasonable, civil and proportionate to the litigation.

I consider such an approach to reflect the ‘reality check’ obligation placed on litigation counsel by both Szeto and Hryniak . [ 29 ] When all counsel to a proceeding fulfil their obligation, the default timeline imposed by rule 32.01(1) gives way to the timeline agreed by counsel.

Being able to displace by agreement of counsel the rule-based ten day time limit avoids the need for unnecessary court applications and pointless pro forma filings of incomplete lists. [ 30 ] I am mindful of the comment of Chief Justice Green at paragraph 60 of Szeto when he cautioned that the application of the principle of proportionality does not allow for the modification of clearly mandatory words in a rule.

But from the overall decision in Szeto and the subsequent direction in Hryniak , I do not interpret this caution as applying to words that, while on their face mandatory, are used in a context which calls for consideration of reasonableness and fairness and in circumstances in which an agreed departure from (e.g.) a time limit causes no unfairness or prejudice. [ 31 ] I emphasize that counsel cannot ignore their client’s disclosure obligations. While the ten day requirement may be the subject of discussion, the obligation to produce and disclose documents relating to the proceeding is not negotiable.

It demands prompt and careful attention once the pleadings are closed and the parameters of the dispute defined. [ 32 ] It is an unfortunate reality that in some circumstances counsel and client will not act reasonably and seriously in responding to the filing and disclosure obligations. In such cases, an application to court may be necessary, and, assuming the application is successful, the imposition of adverse and serious cost consequences may help persuade other litigants of their responsibility to facilitate the progress of their matter.

[ 33 ] The approach taken by plaintiff’s counsel in this case illustrates the counter-productive effect of pursuing an early court application over the timing of document production.

The absence of a ‘reality check’ led to an unnecessary and costly application. [ 34 ] The statement of claim refers to the plaintiff, born in 1978, as being removed from her parents’ care as a young child and being placed “in the care, custody and control of the defendant, during which time she resided in various foster homes”. [ 35 ] The pleading goes on to allege placement in and removal from one foster home in Labrador, placement in a temporary foster home in Labrador, return to the first foster home and subsequent removal and placement in a long-term foster home on the island of Newfoundland.

There follows an allegation of temporary removal to another foster home and the subsequent return to the long-term foster home.

There are allegations of abuse throughout, together with various reports to, and lack of response by, social workers. [ 36 ] From the pleadings alone, it is apparent that the claims require an assessment of circumstances over 30 years old, in different situations and communities, at different times, and involving a number of individuals. [ 37 ] It is unreasonable to expect that a defendant faced with such a claim can produce a comprehensive list of documents either within the time limit prescribed by rule 32.01(1) or, in this case, within the time suggested by plaintiff’s counsel. [ 38 ] Having said that, it is not helpful for defence counsel to say, as he did on September 11, that he was “still awaiting instructions and the documents”.

While this response is open to

interpretation since a discovery before pleadings were closed was being discussed, the obligation to disclose related documents is not one that requires instructions. It is an obligation resting on the party, an obligation which counsel must make every effort to ensure is met on a timely basis. [ 39 ] Plaintiff’s counsel advised that, in cases of this nature, she usually contemplates a period of two years from a claims initiation to its disposition. I express no view on the acceptability of such a timeframe.

But with such a time frame anticipated, it is clear that the defendant’s proposed end of November timeline for the production of its documents did not and does not prejudice the plaintiff in the slightest. The timeline to the adjudication on the merits remains the same. [ 40 ] As noted earlier, counsel for the defendant indicated that, to date, about 4000 records have been retrieved. More are expected.

Whether or not redactions are appropriate may yet have to be determined. [1] [ 41 ] In the circumstances, having considered the representations of counsel, and barring any delay occasioned by a dispute over whether redactions are required, I consider it reasonable at this juncture to require the defendant to provide and file her primary list of documents by December 14. I consider the ‘primary’ list to be the result of the party’s good faith attempt to satisfy its disclosure obligation.

However, and as I have already mentioned, it must be recognized in some circumstances, including the complexity and scope of the litigation, the mode of information retention and storage, and the passage of time from the claim events to the litigation, supplementary productions may be necessary. Indeed I note that in this case, the plaintiff filed a supplementary list of documents on October 30, apparently as a result of a discovery examination. [ 42 ] This application should not have been brought.

The timing of the defendant’s document production could have and should have been agreed between counsel. [ 43 ] In the circumstances, the defendant is entitled to her Column 3 costs of responding to the application, such costs not to be taxed or payable until the conclusion of the proceedings in this Court. conclusion 1. The defendant will file her rule 32.01(1) list of documents on or before December 14, 2018. 2. The defendant is entitled to her Column 3 costs, not to be taxed or payable until the conclusion of proceedings in this Court. _____________________________ David B. Orsborn Justice