DEBORAH THORNE PLAINTIFF And: COLLEGE OF THE NORTH ATLANTIC DEFENDANT, 2019 NLSC 157

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Thorne v. College of the North Atlantic , 2019 NLSC 157 Date : August 27, 2019 Docket : 201306G0131 Between: DEBORAH THORNE PLAINTIFF And: COLLEGE OF THE NORTH ATLANTIC DEFENDANT Before: Justice Katherine O'Brien Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 20, 2019

Summary: The Defendant’s Application pursuant to Rule 14.23 for better and further particulars of the Amended Statement of Claim was denied. The Application was brought after the Defence was filed. Although an Order for particulars of a Statement of Claim could be made after pleadings have closed, in the present case trial fairness was better served by denying the Application. The information sought was within the knowledge of the Defendant and was in the nature of evidence to be explored on discovery. Appearances: James D. Hughes Q.C. and

Philip C.W. Whalen Appearing on behalf of the Plaintiff J. David B. Eaton Q.C. Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Thorne v. College of the North Atlantic, 2014 NLTD(G) 94; Thorne v. College of the North Atlantic, 2015NLTD(G) 63; College of the North Atlantic v. Thorne, 2015 NLCA 47; Thorne v. College of the North Atlantic, 2016 NLTD(G) 165;Thorne v. College of the North Atlantic, 2018 NLCA 33; UFCW Local 1252 v. Cashin (1989), (NL SC), 234 A.P.R.91, 75 Nfld. & P.E.I.R. 91 (Nfld. S.C.T.D.); Duffett v.

Canada (Attorney General), 2004 NLSCTD 58; Newfoundland and Labrador(Attorney General) v. Rothmans Inc., 2015 NLTD(G) 191; John Doe v. Roman Catholic Episcopal Corp. of St. John's, 2015 NLTD(G)81; Jones (Litigation Guardian of) v. Donaghey, 2011 BCCA 6. STATUTES CONSIDERED: Class Actions Act, S.N.L. 2001, c. C-18.1. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch. D.

REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] The Defendant, College of the North Atlantic (“CNA”), has brought an Application for particulars pursuant to Rule 14.23 ofthe Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch. D (the “Rules”). The Application is denied. Background [2] It is helpful to begin with a brief history of this file. [3] The Plaintiff, Ms. Thorne, filed an Amended Statement of Claim on October 3, 2013 under the Class Actions Act, S.N.L. 2001,c. C-18.1 (the “Act”). [4] A certification hearing was held and certification was granted on August 19, 2008 (Thorne v.

College of the North Atlantic,2014 NLTD(G) 94). [5] On January 30, 2015, Ms. Thorne filed an Application to expand the class definition to included people not resident inNewfoundland and Labrador. This application was heard and granted on March 20, 2015. [6] On February 20, 2015, CNA filed a Statement of Defence and Counterclaim. [7] On February 27, 2015, Ms. Thorne brought an Application to Strike the Counterclaim for disclosing no reasonable cause ofaction. This application was heard and granted on May 1, 2015 (Thorne v.

College of the North Atlantic, 2015 NLTD(G) 63). [8] Both the decision to certify the action and the decision to strike the counterclaim were appealed and the appeals were heardtogether. The appeal of the decision to certify was dismissed and the appeal of the decision to strike the counterclaim was allowed. Thedecision to strike was set aside because the applications judge had made a procedural error in law: College of the North Atlantic v.Thorne, 2015 NLCA 47 (“Appeal 1”).

In Appeal 1, the Court of Appeal stated that if CNA wanted to assert its counterclaim againstmembers of the certified class it would need to seek and obtain certification of the counterclaim under the Act. [9] On October 12, 2016, the counterclaim was certified by the Supreme Court Trial Division: Thorne v. College of the NorthAtlantic, 2016 NLTD(G) 165. That decision was appealed. The Court of Appeal allowed the appeal and struck CNA's Counterclaim: Thorne v. College of the North Atlantic, 2018 NLCA 33 (“Appeal 2”). [10] On August 3, 2018, CNA served a Demand for Particulars on Ms. Thorne.

On August 23, 2018, Ms. Thorne provided a Replyto the Demand for Particulars. CNA considered the Reply to be non-responsive to the Demand for Particulars and it filed the presentApplication on October 11, 2018. The Applicable Rules [11] CNA makes this Application pursuant to Rule 14.23(1) of the Rules which states: 14.23.

(1) Where a party, upon receipt of a notice in writing demanding a further and better statement of the nature of the claim or

defence of the party, or further and better particulars of any matter stated in any pleading, affidavit or statement of facts of the party, fails to supply them within the time specified in the notice, which time shall not be less than ten days, the Court may, upon such terms as are just, order the particulars to be delivered within a specified time, or, if no time is specified, then the particulars shall be filed and delivered within ten days from the date of the order. [ 12 ] CNA also relies on Rules 14.03, 14.11 and 14.13.

THE REQUESTED and Provided PARTICULARS [ 13 ] CNA's request for particulars relates to paragraphs 6 and 7 of the Amended Statement of Claim. These paragraphs read: 6. In November, 2008, the Defendant and/or its employees, agents and assigns invoked and provided a Cost of Living Allowance (COLA) retroactive to September 1, 2008. 7. The Plaintiff repeats the preceding paragraphs and states that by virtue of the terms of the contract with the Defendant, particularly,

article 5.2, the Plaintiff and all others within the Class are entitled to be paid the COLA. [ 14 ] The Demand for Particulars contains two requests.

The first is for further and better particulars of the allegation that CNA “invoked and provided” the Cost of Living Allowance (“COLA”) including, but not limited to, who invoked and who provided the COLA and by what process or method was it invoked and provided. [ 15 ] In its Reply to the Demand for Particulars, the Plaintiff stated CNA invoked and provided the COLA and that the Plaintiff is not aware of, nor was a party to, the specific process or method utilized by CNA when the COLA was invoked or provided. [ 16 ] The second request in the Demand for Particulars is for better and further particulars of how

article 5.2 of the terms of the contract between the parties has given rise to the entitlement claimed by the Plaintiff and all class members to be paid COLA, including, but not limited to, what, if any, acts of the Defendant are alleged to have given rise to the entitlement. [ 17 ] In its Reply, the Plaintiff quotes

article 5.2 of the Terms and Conditions of her employment contract with CNA (the “Employment Contract”) and continues: Between September 1, 2008 and November 22, 2011, the Defendant invoiced and provided a Cost of Living Allowance but failed to make it a part of the Plaintiff’s total annual compensation as contemplated by the terms of the employment contract, whether based on a contractual term implied or expressed as contemplated by

Article 5.2 of the Terms and Conditions stated above. The Comprehensive Agreement [ 18 ] Central to CNA’s request for particulars is an agreement between CNA and the State of Qatar known as the “Comprehensive Agreement”. The Comprehensive Agreement was the subject of CNA's counterclaim, now struck. The Comprehensive Agreement is not mentioned in the Amended Statement of Claim. It was referenced directly in Ms. Thorne’s Application for Certification at paragraph 9: That an amendment was made to the Comprehensive Agreement between the Defendant and the State of Qatar that implemented the COLA increase effective September 1, 2008 (See Comprehensive Agreement at

Schedule ‘B”). [ 19 ] In an effort to resolve the present Application without need for a hearing, Ms. Thorne proposed amending the Amended Statement of Claim to include the following paragraph: The Plaintiff is aware that there was a comprehensive agreement between the Defendant and the State of Qatar respecting the operation of the Defendant’s Qatar campus including funding.

By virtue of this comprehensive agreement or otherwise the Plaintiff asserts that the Defendant secured and/or received funds, and had an obligation to provide these funds to the benefit of employees including the Plaintiff, and the Defendant failed to do so in contravention of the terms of the individual contracts or employment between the Plaintiffs and the Defendant. [ 20 ] CNA was satisfied with this proposed amendment with one exception: the inclusion of the words “secured and/or”. In other words, CNA would be satisfied if Ms. Thorne restricted herself to pleading that CNA received funds. As Ms.

Thorne would not agree to this restriction, this Application proceeded. CNA’s POSITION [ 21 ] CNA concedes that it is most common for particulars to be sought before a defence is filed. In fact, neither party provided the Court with any precedents of applications for particulars after pleadings were closed.

Yet CNA submits that requests for particulars can be made after a defence has been filed, noting that Rule 14.23 does not place any time limit on demands for particulars and allows parties to demand particulars beyond pleadings, including particulars of matters stated in affidavits and statements of fact. [ 22 ] CNA maintains that it requires the sought particulars to: 1. Inform it of the nature of the claim; 2. Prevent it from being taken by surprise; 3. Enable it to know what evidence it ought to be prepared to present at trial;

4. Limit the generality of the pleading; 5. Define the issue to be tried; and 6. Tie the Plaintiff’s hands so that it cannot go without leave into matters not included. [23] In support of its position it relies on UFCW Local 1252 v. Cashin (1989), (NL SC), 234 A.P.R. 91, 75 Nfld.& P.E.I.R. 91 (Nfld. S.C.T.D.) and Duffett v. Canada (Attorney General), 2004 NLSCTD 58. [24] CNA asserts that Ms. Thorne has been vague in the Amended Statement of Claim and it is necessary to have further particularsto clarify what material facts, and what particulars of those facts, Ms. Thorne is relying upon. In response to Ms.

Thorne’s assertion thatthe specific process or method used by CNA when the COLA was invoked or provided is not within her knowledge or control but wouldbe known by CNA, CNA submits that this is irrelevant to the present analysis. [25] CNA further submits that the fact that different judges have come to different conclusions upon reading the pleadings in thiscase demonstrates that more clarity is needed. As it stands, CNA says there is confusion or uncertainty to the point that there couldpotentially be completely different trials depending on the

interpretation of the allegations. CNA wants further particulars to help definethe scope of the trial. [26] With respect to the different conclusions on the pleadings by different judges, CNA emphasizes a number of passages inprevious decisions in this matter. I will review the most significant of these. [27] In Appeal 1, at paragraph 53, Rowe, J.A. (as he then was) wrote: 53 I would note an unusual aspect of the counterclaim. Ms.

Thorne's claim rests in part on an interaction between her contract ofemployment with CONA and the Comprehensive Agreement, the effect of which was (she alleges) to make CONA liable to pay her theCOLA. In its defence, CONA denies that the agreements interact to give rise to this result. In the alternative, CONA counterclaims that,if the two agreements interact as Ms.

Thorne alleges so as to make her eligible to be paid the COLA, then (in CONA's submission) theagreements interact in a further way so as to give rise to an additional result, i.e. to cap the amount payable to instructors employed byCONA in Qatar, which cap would give rise to a situation of overpayment to some members of the certified class. I note this by way ofexplanation and not as the basis for setting aside the order to strike. [28] CNA interprets Rowe, J.A.’s statement that “Ms.

Thorne’s claim rests in part on an interaction” between the EmploymentContract and the Comprehensive Agreement as a statement that Ms. Thorne is “relying” on the Comprehensive Agreement, despite thefact that Ms. Thorne expressly denies that she is “relying” on the Comprehensive Agreement. [29] CNA states that its

interpretation is the same as that of Stack, J., noting that he wrote at paragraph 36 of Thorne v. College ofthe North Atlantic, 2016 NLTD(G)165: 36 Thus the Comprehensive Agreement is specifically referred to and relied upon by Ms. Thorne to establish her claim to anentitlement to be paid a COLA. Nevertheless, counsel for Ms. Thorne argued before me that she has not relied upon the ComprehensiveAgreement to base her claim, but only upon

article 5.2 of her employment contract. That is not so. Furthermore, the pleadings do notprovide any particulars of how

article 5.2 gives rise to an entitlement to be paid a COLA. [30] CNA asserts that it implicit in Stack, J.’s reasons that he considered that Ms. Thorne’s certification application formed part ofthe pleadings of the case. Counsel for CNA states that CNA held the same

interpretation, considering the certification application aspart of the pleadings. [31] Although CNA may have believed that the certification application formed part of the pleadings, that belief was only shortlyheld because in Appeal 2 the Court of Appeal stated definitively that the certification application does not form part of the pleadings. The salient passages from Appeal 2 are at paragraphs 60 to 62, where Hoegg, J.A. wrote: 60 Ms. Thorne does not plead or rely on any contract or agreement between CNA and Qatar.

Nowhere in her Statement of Claim or herAmended Statement of Claim is there reference to the Comprehensive Agreement between CNA and Qatar. She simply pleadsentitlement to monies from CNA based on the terms of the class members' employment contracts with CNA, which she alleges providedfor CNA to pay the COLA to class members and which she alleges CNA did not do. 61 Ms. Thorne's application for certification also does not refer to the Comprehensive Agreement. The reference to "COLA fundsobtained from Qatar" in Ms. Thorne's application for certification is not a pleading.

Neither is it an assertion that COLA funds were dueeither to them or to CNA from Qatar. Rather, it is an explanatory statement in her application that COLA funds alleged to be due theclass members had been received by CNA from Qatar and not passed on to the class members. There is a difference between materialfacts pleaded in a statement of claim and explanatory information in an application related to an action. 62 Ms. Thorne's action was certified and the certification was upheld by this Court. It is also worth noting that CNA admitted at thecertification hearing that Ms.

Thorne's pleadings disclosed a reasonable cause of action. [32] CNA submits that two things arise from the above passages that are relevant to this Application. The first is that Hoegg, J.A.was in error when she wrote: “Ms. Thorne’s application for certification also does not refer to the Comprehensive Agreement”. Paragraph 9 of the certification application did reference the Comprehensive Agreement and I have quoted that paragraph above. Although CNA does not assert that this error made any difference to the outcome of Appeal 2, it submits that it results in confusion that

makes its demand for further particulars necessary. [ 33 ] The second thing CNA submits arises is that, by referencing “COLA funds obtained from Qatar” in Ms. Thorne’s application for certification as an explanatory statement that COLA funds alleged to be due the class members “had been received by CNA from Qatar”, Hoegg, J.A. set the boundaries of the dispute to be whether funds had been received, not just secured. CNA claims that the pleadings should be limited to the receipt of funds because otherwise they are inconsistent with the basis on which the Court of Appeal struck the counterclaim. Ms.

Thorne’s Position [ 34 ] Ms. Thorne submits that any confusion about the pleadings is of CNA’s own making and due to a failure on the part of CNA to recognize the distinction between contractual reliance and evidentiary reliance. [ 35 ] Ms. Thorne’s counsel asserts that Ms. Thorne is not relying on the Comprehensive Agreement contractually. Ms. Thorne’s case for breach of contract is for breach of the Employment Contract, not for breach of the Comprehensive Agreement. Counsel states that not relying on the Comprehensive Agreement contractually does not mean that Ms.

Thorne will not rely on the Comprehensive Agreement as a matter of evidence. He equates Hoegg, J.A.’s characterization of the statement in the certification application as “an explanatory statement” equivalent to a recognition that it may be relied on evidentially, as opposed to contractually. [ 36 ] Ms. Thorne submits that particulars should not be ordered because the information sought is neither necessary for CNA to plead, as the Defense was filed in February 2015, nor is it information within Ms. Thorne’s knowledge. To support her position she cites Newfoundland and Labrador (Attorney General) v.

Rothmans Inc. , 2015 NLTD(G) 191, and John Doe v . Roman Catholic Episcopal Corp. of St . John's , 2015 NLTD(G) 81. [ 37 ] Ms. Thorne argues that the boundaries of her claim are clear. In essence, the action is for breach of the Employment Contract by CNA when, in November 2008, it invoked and provided the COLA retroactive to September 1, 2008 but did not pay the COLA to Ms. Thorne. Ms.

Thorne submits that the information that the Defendant seeks in its demand for particulars as to “by what process or method” the COLA was invoked and provided, is really a matter of “methodology and manner” that is more properly a subject for discovery and ultimately a matter of evidence. In support of this proposition, it cites paragraph 13 of UFCW Local 1252 wherein Wells, J. considered “methodology and manner” of what was done by the defendants to be more properly a subject for discovery, not particulars. [ 38 ] Ms. Thorne disagrees with CNA’s

interpretation of Appeal 2. It disagrees that Hoegg, J.A. limited the dispute between the parties as to whether funds had been received, not just secured. Ms. Thorne submits that in Appeal 2, the Court of Appeal was reviewing the decision to certify the Counterclaim, not determining the boundaries of Ms. Thorne’s Amended Statement of Claim. Ms. Thorne notes that Hoegg, J.A. carefully distinguished between material facts pleaded in a statement of claim and explanatory information in an application related to an action. As I understand Ms.

Thorne’s argument, it is that it makes little sense for Hoegg, J.A. to explicitly distinguish between the two concepts as she did and then implicitly limit the pleadings by interpreting explanatory information in the certification application. [ 39 ] Finally, Ms. Thorne argues that by attempting to have her limited to a claim of funds being “received” as opposed to “secured and/or received”, CNA is attempting to corner Ms. Thorne into pleadings, which should not be allowed. ANALYSIS [ 40 ] The present Application is for further and better particulars of a Statement of Claim.

Although Rule 14.23 also applies to demands for particulars of affidavits and statements of fact, this analysis focuses on Statements of Claim as different considerations may apply in the other cases. [ 41 ] An order for particulars for a Statement of Claim is most often sought because the defendant requires the particulars to properly plead its defence. If the defendant establishes this is the case, particulars will be ordered.

Orsborn, J. expanded on this entitlement at paragraph 20 of Duffett : Upon receipt of a statement of claim, a defendant is entitled to whatever particulars – short of evidence or ‘manner of proof’ information – that it reasonably asserts is required in order to respond with a proper defence. [ 42 ] In the present case, particulars are not required to enable CNA to plead as CNA has already filed its defence. However, this does not end the inquiry. Rule 14.23 does not place any time constraints on demands for particulars. Additionally, particulars serve other purposes besides enabling the opposing party to plead.

In UFCW Local 1252 , Wells J. set out the purpose of particulars at paragraph 5: 5.

The Annual Practice (1964), vol. 1 at p. 384, says of particulars: This Rule imposes on the parties a primary obligation to state in their pleadings all the 'necessary particulars' of any claim, defence or other matter pleaded, and if any pleading does not state such particulars or states only some or insufficient or inadequate particulars, the Rule enables the Court to order a party to serve either (1) particulars or further and better particulars of any claim, defence or other matter pleaded, or (2) a statement of the nature of the case relied on, or (3) both such particulars and statement.

It is therefore an essential principle of the system of pleading that particulars should be given of every material allegation contained in the pleading. The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the

trial, should be conducted fairly, openly and without surprises and in the process to reduce costs. This function has been stated in variousways as follows: (1) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved(per Lindley, L.J., in Duke v. Wisden (1897), 77 L.T. 67, 68; per Buckley, L.J., in Young & Co. v. Scottish Union Co. (1907), 24 T.L.R.73, 74; Aga Khan v. Times Publishing Co., [1924] 1 K.B. (675, 679); (2) to prevent the other side from being taken by surprise at the trial (per Cotton, L. J., in Spedding v.

Fitzpatrick (1888), 38 Ch. D. at p.413; Thomson v. Birkley (1882), 31 W.B. 230); (3) to enable the other side to know what evidence they ought to be prepared with and to prepare for trial (per Cotton, L.J., ibid, perJessel, M.R., in Thorp v. Holdsworth (1876), 8 Ch. D. 637, 639; Elkington v. London Association for the Protection of Trade (1911), 27T.L.R. 329, 330); (4) to limit the generality of the pleadings (per Thesiger, L.J., Saunders v. Jones (1877), 7 Ch. D. 435 or of the claim or the evidence(Milbank v.

Milbank, [1900] 1 Ch. 376, 385); (5) to limit and define the issues to be tried, and as to which discovery is required (Yorkshire Provident Life Assurance Co. v. Gilbert,[1895] 2 Q.B. 148; per Vaughan Williams, L.J., in Milbank v. Milbank, [1900] 1 Ch. 376, 385); (6) to tie the hands of the party so that he cannot without leave go into any matters not included (per Brett, L.J., in Philipps v. Philipps(1878), 4 Q.B. D. 127, 133; Woolley v. Broad, [1892] 2 Q.B. 317), see (n.) "All material facts" to r. 4; and Wooley v. Broad, [1892] 2Q.B. 317).

But if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in thepleadings (Dean of Chester v. Smelting Corp., [1902] W.N. 5; Hewson v. Cleeve, [1904] 2 Ir. R. 536). [43] Particulars are not the only means of accomplishing the above goals. For example, documentary discovery, discovery ofwitnesses and interrogatories are also used to prevent parties from being taken by surprise at trial. Yet discovery and interrogatories arenot a substitutes for particulars.

In Duffett, Orsborn J. explained the distinction at paragraph 16: 16 Discovery is not a substitute for particulars. Particulars, operating at the pleading level, help to define and limit the issues on whichevidence may be led. In essence, particulars help to build the fence which marks the proper boundaries of the dispute to be brought tocourt.

Once the proper parameters of the dispute are established, discovery enables a party to inquire into how the material facts will beproved - to test the evidence supporting the allegations. [44] Of course, appreciating the above distinction requires an understanding of the differences between “material facts”,“particulars” and “evidence”. It is not a bright line test. In Duffett, Orsborn J. quoted the following from Copland v. CommodoreBusiness Machines Ltd., (ON SC), [1985] O.J. No. 2675, 32 A.C.W.S. (2d) 166 (Ont.

S.C.), with approval: In between the concept of "material facts" and the concept of "evidence", is the concept of "particulars". These are additional bits ofinformation, or data, or detail, that flesh out the "material facts", but they are not so detailed as to amount to "evidence". [45] An order for particulars is a discretionary remedy. In UFCW Local 1252, Wells, J., having distilled the purpose of particularsfrom a number of English and Canadian cases, reviewed the discretionary nature of the remedy starting at paragraph 6: 6 These principles have been developed by a large number of cases e.g. Davy v.

Garrett, Vol. V11 Chancery Division at p. 473,Gaston v. United Newspapers (Limited) and Others, Vol. xxxii Law Times Reports at p. 143 and Newport (Mon) Shipway Dry Dock andEngineering Company v. Paynter, Chancery Division Vol. xxxiv at p. 88.

The cases demonstrate I believe, the tendency of the EnglishCourts to use their discretion in past years, to order particulars more readily than is the custom today, perhaps because discovery was notthen as readily available to the parties. 7 The Canadian Courts appear to be less willing to order extensive particulars, no doubt because of the availability of discovery.Canadian cases e.g. Tidy Car Inc. v. Mr.

Gasket Co. et al 53 O.R. (2d) at p. 169, tend to hold that the Court will exercise its discretionand order particulars where it is necessary for the Defendant to have them in order to plead, but will be otherwise reluctant to do so.Particularly this is so if the Defendant has by virtue of the circumstances of the matter, a more complete and detailed knowledge of thefacts than the Plaintiff. See BRENNAN v. JACK POSLUNS & CO. LTD.,

(1957) O.W.N. at p. 148 and DEE v. DEE, O.R. 1966 Vol. 1, atp. 494. 8 Odgers, Pleading and Practice 22nd ed. (1981) at p. 155 says:

Particulars will be ordered whenever the master is satisfied that without them the applicant cannot tell what is going to be proved againsthim at the trial.

But how his opponent will prove it is a matter of evidence of which particulars will not be ordered. 9 Holmested and Watson, Ontario Civil Procedure says at p. 25-29: While precedents may be useful (and the body of case law is vast, see H. & G.R. 140), in the final analysis whether particulars will beordered is a matter within the discretion of the court, and that discretion will be exercised to do justice to all parties in the light of all thecircumstances: Kilvington Bros. Ltd. v. McIntosh Granite Co., [1954] O.W.N. 463 (Master).

No party to any action has any right to particulars: none can be had, compulsorily, without an order of the Court: when, and to whatextent, particulars should be given are altogether questions for the Court to determine": per Meredith C.J.C.P. in Somers v. Kingsbury(1923), (ON CA), 54 O.L.R. 166 at 168 (C.A.). The general rule is that particulars will not be ordered if they are within the knowledge of the party demanding them: Physicians'Services Inc. v. Cass, (ON CA), [1971] 2 O.R. 626 (C.A.); Min. of Health (Ont.) v. Wilson (1975), (ON SC), 11 O.R. (2d) 631 (Div.

Ct.) and see generally H. & G.R. 140 & 11. [46] I have applied the above principles to the present case and exercised my discretion not to order further particulars. I will explainmy reasons. [47] As already noted, CNA has been able to plead. Although that is not determinative, it is an important consideration and otherfactors weighing in favour of CNA’s application would have to be significant to warrant the relief requested after pleadings have closed.

All parties have an interest in this matter moving forward expeditiously. [48] I am satisfied that on the spectrum between particulars and evidence, the information sought by the Defendant is more in thenature of evidence. The “process or method” alleged to have been used by CNA to invoke and provide the COLA is detail that can befleshed out in discovery.

CNA knows what the issue is and should not be taken by surprise when evidence relevant to this issue issought or adduced. [49] Moreover, by virtue of the circumstances of the matter, CNA is expected to have a more complete and detailed knowledge ofhow they did or did not invoke the COLA than is Ms. Thorne. While a demand for particulars cannot be rebuffed with a simplestatement that the information is known to the demanding party, that does not mean this is not a relevant consideration.

It is a relevantconsideration and one that weighs against the granting of an order for further particulars. [50] Most importantly in deciding this Application, I have to consider the fundamental purpose of particulars, which is to ensure trialfairness. One way fairness is achieved is by preventing surprises. The Defendant is entitled to know with certainty what issues are atplay. I am satisfied that CNA does. Ms. Thorne’s pleadings are not merely vague assertions. The Amended Statement of Claim doesnot allege that CNA invoked and provided the COLA generally, it alleges that this occurred in November 2008.

It also alleges that theCOLA was invoked and provided retroactive to September 1, 2008. The dates are specific and narrow the scope of the claimconsiderably. [51] Another way fairness is achieved is by forcing the Plaintiff to commit to its case and prevent it from using the pleadings as thestarting point for a fishing expedition that it hopes will ultimately reveal wrongs committed by the Defendant. CNA brought thisapplication because Ms. Thorne was unwilling to narrow the pleadings to an assertion that CNA “received” COLA funds that it did notprovide to Ms. Thorne in contravention of the Employment Contract.

Ms. Thorne was willing to claim that CNA “secured and/orreceived” the funds, but not simply “received”. I ask: Is it fair to tie Ms. Thorne’s hands such that if she uncovers evidence in discoverythat establishes that CNA secured COLA funds, but did not come into receipt of them, that Ms. Thorne would either have to get leave toamend her pleadings or fail to establish her case? I conclude that this would not be fair. Ms.

Thorne’s hands should not be tied tootightly. “Securing” and “receiving” funds are not two separate lines of inquiry, at the heart of each is the concept of entitlement to thefunds. [52] I do not see confusion or lack of clarity as result of the previous decisions. Hoegg, J.A.’s error as whether Ms. Thorne’sapplication for certification referred to the Comprehensive Agreement is of no consequence. Appeal 2 was decided on the basis that theAct does not authorize defendant class actions, CNA’s counterclaim did not disclose a cause of action, there was no common issueidentified and Ms.

Thorne was not a suitable representative defendant. None of those reasons rested on whether the application forcertification referred to the Comprehensive Agreement. [53] In Appeal 2 the Court of Appeal also clarified that applications for certification do not form part of the pleading. Thisclarification of the law did not rest on whether the application for certification referred to the Comprehensive Agreement either. Nor didHoegg’s, J.A.’s clarifying the distinction between material facts in a pleading and explanatory information in an application related to anaction.

The example used, even if in error, was merely illustrative of the point. [54] The distinction between material facts and the evidence that tends to prove them was canvassed by the British Columbia Courtof Appeal in Jones (Litigation Guardian of) v. Donaghey, 2011 BCCA 6, commencing at paragraph 16:

16 The relationship between relevance and issues of material or ultimate fact was explained in R. v. Watson (1996), (ON CA), 30 O.R. (3d) 161 (Ont. C.A.), at 172, (1996), 108 C.C.C. (3d) 310 (Ont. C.A.): Relevance ... requires a determination of whether as a matter of human experience and logic the existence of "Fact A" makes theexistence or non-existence of "Fact B" more probable than it would be without the existence of "Fact A". If it does then "Fact A" isrelevant to "Fact B".

As long as "Fact B" is itself a material fact in issue or is relevant to a material fact in issue in the litigation then "FactA" is relevant and prima facie admissible. 17 This concept is succinctly illustrated, albeit using different terminology, in R. v. White, (BC CA), [1926] 2W.W.R. 481 (B.C. C.A.), at 485, (1926), 45 C.C.C. 328 (B.C. C.A.), where the Court adopted a passage from S. L. Phipson, ed., Best onEvidence, 12th ed. (London: Sweet & Maxwell, 1922) at 6 that included these words: The fact sought to be proved is termed the "principal fact"; the fact which tends to establish it, "the evidentiary fact".

When the chainconsists of more than two parts, the intermediate links are principal facts with respect to those below, and evidentiary facts with respectto those above them. 18 Thus, a material fact is the ultimate fact, sometimes called "ultimate issue", to the proof of which evidence is directed. It is the lastin a series or progression of facts. It is the fact put "in issue" by the pleadings. Facts that tend to prove the fact in issue, or to proveanother fact that tends to prove the fact in issue, are evidentiary or "relevant" facts.

And, as Professor Thayer said at 197, "Issues are nottaken upon evidential matter." [55] The Comprehensive Agreement may be used as an evidentiary fact by Ms. Thorne to prove the material facts claimed in herpleadings. She does not need to be a party to the Comprehensive Agreement to use it in this way. I understand Hoegg, J.A.’s commentsin this context. I do not accept that in Appeal 2 the Court of Appeal did, or intended to, limit the scope of Ms. Thorne’s pleading. DISPOSITION [56] For those reasons, I dismiss CNA’s application. In accordance with the costs regime established in

section 37 of the Act, I makeno order as to costs. ___________________________________ KATHERINE O’BRIEN Justice