2019 NLSC 59, 2019 NLSC 59

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : East Point Condominium Corporation v.

Gibraltar Development Ltd. , 2019 NLSC 59 Date : March 13, 2019 Docket : 201401G6371 Between: EAST POINT CONDOMINIUM CORPORATION PLAINTIFF And: BONNIE HUDSON second PLAINTIFF And: JOHN LUNDRIGAN third PLAINTIFF And: GLORIA HARDING fourth PLAINTIFF And: SHARON PIPPY fifth PLAINTIFF And: JOAN COOK sixth PLAINTIFF And: DAVID JEANS seventh PLAINTIFF And: WALLACE OATES eighth PLAINTIFF And: CONRAD SULLIVAN ninth PLAINTIFF And: ELI CROSS tenth PLAINTIFF And: RAY MASON eleventh PLAINTIFF And: KATHLEEN BARRY Twelfth PLAINTIFF And: BRENDA COLLINS thirteenth PLAINTIFF And: GIBRALTAR DEVELOPMENT LTD. FIRST DEFENDANT

And: A-1 PLUMBING AND HEATING

(2007) LTD. SECOND DEFENDANT And: CITY OF ST. JOHN’S FIRST THIRD PARTY And: A-1 PLUMBING AND HEATING

(2007) LTD. SECOND THIRD PARTY Before: Justice Daniel M. Boone Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 1, 2019

Summary: The Plaintiffs made Application for adjournment of a trial scheduled to commence on March 19, 2019. The application was granted. Appearances: Philip J. Buckingham Appearing on behalf of the Applicant Terry G. Rowe, Q.C. Appearing on behalf of the Respondent Glen L. Noel, Q.C. and Elliott M. Bursey Appearing on behalf of the Second Defendant F. Stephen Fitzgerald Appearing on behalf of City of St. John’s Authorities Cited:

CASES CONSIDERED: Jadhav v. Kielly, 2019 NLCA 5; Allen v. Stone (1996), (NL CA), 146 Nfld. & P.E.I.R.308, 1996 CarswellNfld 299 (C.A.); Tarrant v. Manufacturers Life Insurance Co. (1993), (NL SC), 113 Nfld. &P.E.I.R. 162, 353 A.P.R. 162 (Nfld. S.C.(T.D.)); Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This is an Application by the Plaintiffs for adjournment of a trial scheduled to commence on March 19, 2019.

TheDefendants oppose the Application; the First Third Party consents. [2] The parties certified readiness for trial and attended a Pre-Trial Conference in summer 2017. [3] This action is for damages allegedly arising from water damage in a condominium building. The First Defendant wasresponsible for the construction of the building. The Second Defendant/Second Third Party installed the plumbing. The First Defendantalleges that First Third Party contributed to the water damage by not acting soon enough to turn off the water supply to the building.

Italso claims over in negligence against the Second Defendant/Second Third Party. [4] The Plaintiffs’ main allegation is that a plumbing joint separated from a pipe joint. They allege that negligence of the Firstand Second Defendants caused this. They do not intend to call an expert witness to prove the standard of care. They did not intend tocall an expert in respect of causation, but now they say that they feel it necessary to do so.

They seek an adjournment of the trial in orderto allow time to retain and instruct the expert. [5] The underlying facts have not changed and there has been no change in the parties. The Plaintiffs, however, take the positionthat the law has recently changed in this jurisdiction and that the effect of this change is to alter the evidentiary burden they face at trial,essentially requiring that they retain an expert to meet that burden. [6] In particular, the Plaintiffs take the position that a recent case from our Court of Appeal, Jadhav v.

Kielly, 2019 NLCA 5,changed the law regarding proof of causation in negligence, and that “the law now requires a plaintiff, when relying upon an inference tobe drawn by the trier of fact, to prove that even in the presence of negligence by a defendant, there could be no other cause” of thePlaintiffs’ damages. [7] The following cases in this jurisdiction set out the principles for me to consider in determining whether to exercise mydiscretion to adjourn the trial: Allen v. Stone (1996), (NL CA), 146 Nfld. & P.E.I.R. 308, 1996 CarswellNfld 299(C.A.); Tarrant v.

Manufacturers Life Insurance Co. (1993), (NL SC), 113 Nfld. & P.E.I.R. 162, 353 A.P.R. 162(Nfld. S.C.(T.D.)).

From these cases, I extract the following principles: 1) The decision whether to adjourn a scheduled trial before it starts is one within the inherent jurisdiction of the Court; 2) By agreeing to set a matter down for trial, the parties represent to the Court that they are ready for trial; 3) Once a matter is set for trial, interests broader than the parties rights are involved, and the impact of interference with orderlyscheduling upon proper administration of justice must be considered; 4) Once a case is set for trial, each party is, subject to the availability of Court facilities, entitled to have the trial proceed asscheduled; 5) That right to proceed is equivalent to a substantive right, a denial of which will cause injustice to the party who wants toproceed; 6) The party seeking adjournment must demonstrate that the injustice to that party if required to proceed to trial outweighs theinjustice that will result to the opposing party if deprived of the right to proceed. [8] In this case, the Application is based on a change in the law that the Plaintiffs say alters the case they will have to present inorder to succeed.

In considering a question raising this kind of alleged injustice to a party, one of the relevant factors is the timing of thesuggested change in the law. In this case, the change relied upon by the Plaintiffs is, they say, found in a very recent case from our Courtof Appeal issued on January 22, 2019. [9] The law regarding the elements that must be established in order to succeed in negligence has been evolving for decades.

The law regarding the requirements and burden on a plaintiff suing in negligence to establish causation has been most recently stated bythe Supreme Court of Canada in Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, at paragraphs 8 to10: 8 The test for showing causation is the "but for" test. The plaintiff must show on a balance of probabilities that "but for" thedefendant's negligent act, the injury would not have occurred.

Inherent in the phrase "but for" is the requirement that the defendant'snegligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant's

negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. 9 The "but for" causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant's negligence made to the injury. …. 10 A common sense inference of "but for" causation from proof of negligence usually flows without difficulty.

Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant's negligence probably caused the loss. ... [ 10 ] I note that although there was never a requirement to prove causation through expert evidence, there was nothing precluding a plaintiff from adducing such evidence. [ 11 ] This brings me to the case of Jadhav v. Kielly . I have already set out the Plaintiffs’ position as to the change in the law, which they say it effected.

It is trite to say, of course, that our Court of Appeal cannot change the law as stated by the Supreme Court of Canada. However, the Court of Appeal could introduce a nuance to that law by a decision that applies the law to a new factual circumstance or, at least, one which was beyond the range of circumstances under consideration by the Supreme Court of Canada. [ 12 ] I am not convinced that the Court of Appeal in Jadhav v. Kielly really changed the law.

All the Court of Appeal did was state that in a particular set of circumstances the court could not draw an inference as to causation without expert evidence. [ 13 ] I am also not persuaded that a situation analogous to that described by the Court of Appeal exists in this case. [ 14 ] However, I am not prepared to make a definitive finding on those legal questions in the vacuum of this current Application for adjournment. There is simply no basis in evidence of a factual matrix to which to apply the law of negligence and the evidentiary burden on a party asserting negligence.

This Court ought not pronounce on a theoretical change in the law without underpinning proof or agreement as to facts. [ 15 ] What I am faced with is an Application grounded in the opinion of experienced trial counsel to the effect that the law has changed, and that this change in the law requires an alteration to the trial strategy that counsel has recommended. I find that to interfere in those strategic decisions would amount to an injustice to the Plaintiffs. [ 16 ] I note that although this matter has been set for trial for some time, this is the first time that it has come up for trial.

Other than the presumed injustice that results to the other parties from losing their trial date, those parties have not presented any evidence establishing any other prejudice that will result to them from an adjournment, and have frankly conceded that there will be no such other prejudice. [ 17 ] The injustice to the Plaintiffs outweighs the prima facie injustice to the other parties.

Moreover, the possibility of forcing a matter to trial when a party argues that a recent development affects its ability to fairly present its case is not in the interest of the orderly administration of justice [ 18 ] In the circumstances, therefore, the balance favours allowing the Application for adjournment, and I order that the matter be adjourned. I order that costs of this Application, however, will be costs in the cause. _____________________________ Daniel M. Boone Justice