Paul Renouf Plaintiff And: George Ansel Smith, Roman Catholic Episcopal Corporation of St. George's, Corner Brook Roman Catholic Episcopal Corporation, v. Corner Brook Episcopal Lands Corporation, 2022 NLSC 39

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Renouf v. Smith , 2022 NLSC 39 Date : March 16, 2022 Docket : 202004G0090 Between: Paul Renouf Plaintiff And: George Ansel Smith, Roman Catholic Episcopal Corporation of St. George's, Corner Brook Roman Catholic Episcopal Corporation, and Corner Brook Episcopal Lands Corporation DefendantS Before: Justice Peter N. Browne Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: January 20, 2022 and March 7, 2022 Date of Oral Judgment: March 11, 2022

Summary: The Plaintiff, Paul Renouf, sought to add the Roman Catholic Episcopal Corporation of Halifax as a party to the proceeding pursuant to Rule 15.01 and Rule 7.04(2)(

b) based on new information disclosed during document production from the existing Defendants. The Court denied the Plaintiff’s application having found that that addition of the Roman Catholic Episcopal Corporation of Halifax as a

party did not meet the requirements of either Rule. Appearances: Aaron Lealess Appearing on behalf of the Plaintiff Jamie Merrigan Appearing on behalf of the Defendants J. David Eaton, Q.C. and Morgan Chafe Appearing on behalf of the Roman Catholic Episcopal Corporation of Halifax Authorities Cited: CASES CONSIDERED: Tucker v. Unknown Person, 2012 NLTD(G) 132; Chipman v. Party Unknown, 2021 NLSC 62; MidnightMarine Ltd. v. Aviva Insurance Co. of Canada, 2015 NLTD(G) 112; Dobbin v. Tucker, 2021 NLSC 22; 10475 Newfoundland Ltd. v.Houston, 2012 NLCA 34; Mandavia v.

Central West Health Care Institutions Board (2003), (NL SC), 222 Nfld. &P.E.I.R. 265, 119 A.C.W.S. (3d) 732 (N.L. S.C.(T.D.)); Clearwater Fine Foods Inc. v. Day & Ross Inc., 2003 NLSCTD 106, aff’d 2004NLCA 3; and Vardy v. Dufour, 2008 NLCA 22 STATUTES CONSIDERED:

Interpretation Act, R.S.N.L. 1990, C. I-19 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] Paul Renouf (“Renouf”) has applied to amend the original Statement of Claim to add the Roman Catholic EpiscopalCorporation of Halifax (“RCEC-Halifax”) as an additional Defendant to the proceeding. BACKGROUND [2] On June 18, 2020, Renouf commenced a civil action for damages arising from an allegation of historical sexual abusecommitted by the Defendant, George Ansel Smith (“Smith”).

Smith was a priest with the Roman Catholic Church and was assigned tothe Diocese of St. George’s and was the Pastor of the St. Columcille Parish in St. Fintan’s, NL. Renouf alleges that the sexual abusebegan while he was 12 years old in 1978. [3] The original pleadings named Smith and three Roman Catholic Episcopal Corporations located in the Diocese of St. George’sand Corner Brook as Defendants.

Counsel for Renouf advised the Court that the proposed Amended Statement of Claim addresses newinformation that arose after the filing of Defences and the List of Documents by the Roman Catholic Episcopal Corporation of St.George’s (“RCEC-St. Georges”). [4] Through this disclosure, Renouf became aware that Smith had attended seminary training at the Holy Heart Seminary ofHalifax which was in partnership with the proposed defendant. During the years of 1965 - 1969, RCEC-Halifax became aware ofinformation that called into question Smith’s character and his appropriateness for the priesthood.

Despite knowing this information,RCEC-Halifax permitted a request from Smith to transfer to the Diocese of St. George’s. In so doing, they were negligent in failing towarn RCEC-St. George’s of their concerns. ISSUE [5] The sole issue for determination is should the Court allow the proposed amendment requested by Renouf to add RCEC-

Halifax as a Defendant? Position of the parties Renouf [6] Counsel for Renouf argues that this Court has jurisdiction under Rule 15.01 of the Rules of the Supreme Court, 1986, S.N.L.1986, c. 42, Sch. D to allow for an amendment to add a party where it would rectify a genuine mistake. He contends that Renoufintended to sue all those whose negligence contributed to Smith’s sexual abuse, including those involved in the “recruitment, selectionand training” of Smith. RCEC-Halifax [7] Counsel for RCEC-Halifax opposes the proposed amendment stating that the application is properly brought under Rule 7 andnot Rule 15.

When the application is examined in the context of existing jurisprudence, it does not meet the test for adding a party underRule 7.04(2)(b). Further, should this Court grant the application to add RCEC-Halifax as a party then the proposed amended pleadingscontain allegations that do not disclose a cause of action in that they fail to establish: a. a duty of care; b. a breach of the duty; and c. a legal/factual causal connection between the breach and the alleged harm. ANALYSIS The interplay of Rule 15.01 and Rule 7.04(2)(

b) Rule 15.01 [8] The jurisprudence governing the application of Rules 15.01 and 7.04(2)(

b) in the circumstances of adding a party to anexisting proceeding is settled in this province. The leading authority on the interplay between both Rules is the decision of Orsborn,C.J.T.D. (as he then was) in Tucker v. Unknown Person, 2012 NLTD(G) 132 at para. 88, sub-para. 3: 88 . . . 3. In this province, the rule governing the addition of a new party to an existing proceeding is r. 7.04(2)(b).

Adding a new party to anexisting proceeding (Rule 7) is qualitatively and analytically different from an amendment to a pleading or the change or substitution of aparty. (Rule 15) [9] Renouf argues he was not aware of RCEC-Halifax’s role in the recruitment, selection and training of Smith until afterdocument disclosure by the Defendant, RCEC-St. George’s. Consequently, had he been aware of this information at the time of theissuance of the Statement of Claim he would have included RCEC-Halifax among the current Defendants.

It is on this basis this Courtshould exercise its jurisdiction to rectify this mistake under Rule 15. [10] His counsel reminds the Court that

section 16 the

Interpretation Act, R.S.N.L. 1990, C. I-19 requires that the Rules be given abroad and liberal

interpretation. In support of his position he cites the decision in Chipman v. Party Unknown, 2021 NLSC 62 at paras. 7- 8 and Midnight Marine Ltd. v. Aviva Insurance Co. of Canada, 2015 NLTD(G) 112 at para. 2. [11] The issue in Chipman was described more as one of a “substitutional correction” or a “capacital correction” as the Statement ofClaim demonstrated a clear intention from the outset that the first plaintiff would also be named as the first defendant. The Court at para.49 referenced the decision in Dobbin v.

Tucker, 2021 NLSC 22 where my colleague, Paquette, J., refused to grant an application underRule 7.04 which would have had the effect of adding two additional parties as defendants. [12] In Dobbin, the plaintiffs argued that when they started the action it was based on events unknown to them at the time. Paquette,J., using the

section 7.04(2)(

b) analysis, held that the criteria of “ought to” or “necessity” was not met and concluded that the proceedingcould be adjudicated without adding the proposed defendants. [13] Based on the above reasons, I find Rule 15.01 is not applicable to the present case. Rather, the proper legal analysis to beapplied regarding the proposed addition of a new party comes under Rule 7.04(2)(b) (see Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C. (T.D.)) at paras. 1 and 48 – 49).

Rule 7.04(2)(b) -“ought to have been joined as a party” [14] Renouf’s counsel, in both written and oral submissions, argued that his client met this criterion because when the proceedingwas initiated, it was Renouf’s intention to name all parties who were negligent with respect to Smith and liable to him as a result. [15] The fact that Smith was in a seminary school under the auspices of the Archdiocese of Halifax when concerns were raisedabout his suitability for the priesthood creates a legal relationship between the current Defendants and the proposed defendant thatresults in a claim against RCEC-Halifax.

Given that the matter is still in the early stages of the litigation process, there is no prejudice tothe Defendants.

[16] RCEC-Halifax argues that the “ought to” branch of the test under Rule 7.04(2)(

b) is very limited in its application insofar asthe circumstances must exist where the relationship between the existing parties and the proposed party is such that the absence of theproposed party could lead to a dismissal of the action and the lack of the enforceability of a remedy. [17] I agree with this

interpretation of the Rule. At para. 88, sub-para. 4(

i) of Tucker, Orsborn, J. summarized the correct approachto the “ought to” analysis: 88. . . . 4. To ground an entitlement to add a new party to an existing proceeding under r. 7.04(2(b), one of the following conditions must besatisfied: (

i) that the proposed party ought to have initially been joined as a party; this condition, derived from the common law courts, addressesthe relationship between an existing party and the proposed party and considers whether or not the existing party - in a legal sense - isfully constituted in the absence of the proposed party, thus avoiding dismissal (abatement) of the proceeding and ensuring theenforceability of any potential remedy. . . . [18] Since Tucker, our courts have adopted this approach to interpreting the phrase “ought to”. [19] Counsel for Renouf argues the present case is analogous to the decision 10475 Newfoundland Ltd. v.

Houston, 2012 NLCA 34wherein the Court of Appeal permitted the addition of a defendant after the expiration of a limitation period because it held the plaintiffclearly intended to name all of the proper parties to the pleaded occupier’s liability cause of action and the proposed addition was not toolate that it created prejudice to the defendant. [20] A closer reading of Houston clearly distinguishes it from the proposed amendment.

In Houston, the Court of Appeal upheld theapplications judge’s decision that what was being proposed was, in effect, a “capacital correction” of the sole defendant whereby the newdefendants would replace it in the capacity of “owners” as pleaded originally against the sole defendant.

This is not the circumstancebefore this Court. [21] Here, Renouf is seeking to add a new party based on a new factual matrix that dates back to a period 1965 - 1969 when Smithattended seminary school and was subsequently ordained whereas the original pleadings relate to sexual abuse that began from 1978onward. [22] Relying on the Tucker analysis, I find that Renouf’s action against Smith, RCEC-St.

George’s and the remaining Defendants isfully constituted and the absence of RCEC-Halifax as a party will not lead to a dismissal of the proceeding and deny Renouf the ability toenforce a remedy against any of the current Defendants. Accordingly, Renouf has not met the requirements of the “ought to” criterion. Rule 7.04(2)(b) - “whose participation in the proceeding is necessary” [23] Renouf’s counsel contends that the addition of RCEC-Halifax also meets the criterion of “necessity” as its participation wouldlead to the proper adjudication of the claim.

Again, citing the decision in Chipman, he asserts that in instances where the existingdefendants and the proposed defendant are joint and severally liable, the Court found that the proposed party “is necessary” for theproper adjudication of the relief sought. [24] Counsel for RCEC-Halifax argued that the application before the Court in Chipman was one where the second and thirdplaintiffs sought to amend the Statement of Claim to add the first plaintiff as a defendant.

In granting the amendment, my colleague,Burrage, J., was satisfied that the pleadings demonstrated a clear intention to pursue a claim against the first plaintiff as a defendant and,therefore, Rule 15.01 was the proper Rule by which to do so (see paras. 1 - 3 and 7 of Chipman). [25] I find that counsel for Renouf has not established that the addition of RCEC-Halifax as a party is “necessary”. In so doing, Irely on several decisions which pre-date Tucker, namely: Mandavia v. Central West Health Care Institutions Board (2003), (NL SC), 222 Nfld. & P.E.I.R. 265, 119 A.C.W.S. (3d) 732 (N.L.

S.C.(T.D.)); Clearwater Fine Foods Inc. v. Day & Ross Inc.,2003 NLSCTD 106, aff’d 2004 NLCA 3; and Vardy v. Dufour, 2008 NLCA 22. [26] What follows is a synopsis of how Renouf has not met this criterion: a. The existing action between the existing parties can be effectually and completely settled without the addition of the proposed party(see Mandavia at paras. 11 - 14); b. Rule 7.04 contains no provision to allow for the addition of a party in circumstances where it is “just and convenient”( seeMandavia at paras. 17 - 20); c.

Participation is only necessary to ensure the complete adjudication of the existing claims or to ensure that all the relief requested inthe existing action can be awarded (see Clearwater at paras. 2 and 15 - 16);

d. The provision of another avenue for the Plaintiff to recover is not a sufficient basis for adding a party under the “necessity” criterion (see Clearwater at paras. 23 and 30); and e. The wording of this Rule is very narrow and does not permit for the joining of a separate action to an existing one, even if the actions may be related ( see Vardy at para. 24 ).

Discretionary factors favour the addition of RCEC-Halifax as a party [ 27 ] Renouf’s counsel argues that discretionary factors such as fairness, the avoidance of a multiplicity of proceedings and the lack of prejudice to the Defendants given the early stages of the proceeding all favour the addition of RCEC-Halifax as a party. [ 28 ] I disagree. As pointed out by counsel for RCEC-Halifax, the Court’s ability to apply its discretion only comes into play when one of the two criteria under Rule 7.04(2)(

b) have been met. I find neither has so I cannot consider these factors. CONCLUSION [ 29 ] As noted by Orsborn, J. in Tucker , the Rules of the Supreme Court, 1986 provide other mechanisms such as Rule 7 (Causes of Action and Parties) or Rule 18 (Consolidation of a Proceeding) to make the conduct of a properly brought proceeding more efficient. [ 30 ] Renouf has not established a factual or legal basis upon which I should order the addition of RCEC-Halifax as a party under Rule 15.01 or 7.04(2)(b).

Accordingly, the application is dismissed. [ 31 ] Given the result, it will not be necessary to address the arguments raised by counsel for RCEC-Halifax concerning whether the amendments to the pleadings proposed by Renouf fail to disclose a cause of action. [ 32 ] Ordinarily, under Rule 55, the costs of any interlocutory application are to be considered costs in the cause, unless the Court otherwise orders. In the present case, the successful party, RCEC-Halifax, is not a party to the original action. Consequently, they will be entitled to their costs on a Column 3 basis. _____________________________ Peter N.

Browne Justice