Levine v. Roots Canada Limited, 2012 NSSC 268

SUPREME COURT OF NOVA SCOTIA Citation: Levine v. Roots Canada Limited, 2012 NSSC 268 Date: 20120718 Docket: Hfx. No. 206532 Registry: Halifax Between: Lennard Levine Plaintiff v. Roots Canada Limited Defendant Judge: The Honourable Justice Peter Rosinski Heard: July 4, 2012, in Halifax, Nova Scotia Counsel: Blair Mitchell, for the Plaintiff Sandra Arab Clarke, for the Defendant By the Court : Introduction [ 1 ] This is a Motion to have the Court order the production / disclosure of the Defendant insurer's entire file to the Plaintiff insofar as it may "touch upon" how the insurer handled the Plaintiff's claim.

[ 2 ] The Plaintiff claims that his opportunity to fully present evidence and argue that the insurer's handling of his claim is relevant to the awarding of costs and prejudgment interest will otherwise be hobbled. [ 3 ] Disclosure of all relevant documents/information is fundamental to do justice between litigants subject to exceptions in the Civil Procedure Rules , legislation, or privileges barring same for policy reasons. Yet somewhere there must be a line between relevant and irrelevant information. [ 4 ] Drawing that line is by no means a scientifically precise exercise.

It is a determination uniquely driven by the facts in each case, and the intention to do justice between the parties by concerning oneself with proportionality between the material sought and its place in the design that is the pleading. [ 5 ] If satisfied that the probative link between the requested materials and a specific fact in issue between the parties is sufficient to give the materials' relevance an air of reality, then disclosure should be ordered. [ 6 ] Not having had the desired disclosure to date, the Plaintiff argues that there is an air of reality to the suggested relevance of materials remaining in the possession of the insurer, regarding the manner in which it handled Mr.

Levine's claim. [ 7 ] While not to discount Mr. Levine's personal feelings about the insurer's conduct, I do not find myself satisfied that he has demonstrated that there is an air of reality to his disclosure request, and I must therefore dismiss his motion. Background [ 8 ] While at a Roots store on September 3, 1997, Mr. Levine was injured. An originating notice (action) with an attached statement of claim was issued about September 2, 2003. [ 9 ] On November 2, 2006, a consent order between counsel (Robert Stewart, Q.C. and Michael Messenger for the Defendant) was taken out/approved by Justice J. Murphy.

It read: UPON HEARING Michael Messenger, solicitor for the Defendant, with Robert Stewart, Q.C., solicitor for the Plaintiff consenting hereto; AND UPON IT APPEARING that the Plaintiff and Defendant have agreed to a severance of the issues of liability and damages, with the issue of liability to be tried prior to and separately from the issue of damages; AND UPON IT FURTHER APPEARING that the parties have agreed to request that the Court, pursuant to Rule 28.04, should so order; NOW UPON MOTION: IT IS ORDERED THAT the issues of liability and damages in this action should be severed and separately tried, with the issue of

liability in this action tried prior to and separately from the issue of damages. [ 10 ] As it notes, the issue of "liability" and "damages" were to be separately tried. [ 11 ] On September 21, 2009, an order issued consequent to a trial "on the issue of liability alone" before Justice A. Boudreau. [ 12 ] It read: The issues of damages and liability were severed by Consent Order dated November 2, 2006. The trial was for determination of the issue of liability alone and was heard on May 27, 28 and 29, 2009. A decision was given on May 29, 2009.

At trial it was determined that the Defendant is 50% liable for the Plaintiff's damages, if any. It was also determined that the Plaintiff was contributorily negligent and is 50% liable for his own damages, if any. The issues of causation and the quantum of the Plaintiff's damages, if any, have not yet been determined.

On the motion of the Defendant, the following is ordered: The Defendant shall pay to the Plaintiff 50% of the Plaintiff's damages, if any, caused by an incident which occurred on September 3, 1997, at premises occupied by the Defendant in Bayer's Lake, Halifax Regional Municipality, Province of Nova Scotia.

The parties shall each bear their own costs of the trial of the liability issue. [ 13 ] This left the issue of causation of the Plaintiff's alleged injuries and quantum of damages to be considered at the second trial. [ 14 ] On March 5, 2012, the Defendant requested a Date Assignment Conference which was held by Associate Chief Justice Deborah Smith on June 8, 2012. [ 15 ] On June 7, 2012, the Plaintiff filed the herein notice of motion requesting: An order compelling disclosure of all documentary and electronic information touching upon or covering the Plaintiff's injury or claim (other than that which is not subject to an identified or to be identified claim of privilege). [ 16 ] The Plaintiff provided a draft order in which he specified the relief sought as: On the motion of the Plaintiff, Lennard LeVine the following is ordered: 1.

The Defendant produce all documents and information relevant to the conduct of the Defendant in relation to the subject matter of this proceeding prior to the commencement of this action; 2. Redactions in documents produced by the Defendant be removed unless demonstrated to be justified by a specifically identified privilege;

[Emphasis added] [ 17 ] Should such argued disclosable materials - referred to in the Notice of Motion as “ touching upon or covering the Plaintiff ’ s injury or claim ” - be ordered disclosed by the Defendant? Position of the Parties The Plaintiff [ 18 ] The dispute centers on Mr. Levine's position that:

i) He is entitled to disclosure of any information/documentation with respect to the manner in which the Defendant's insurer handled and assessed the Plaintiff's claim for damages after he injured himself at the Defendant's retail store; and that ii) he is entitled to such disclosure without redacting. [ 19 ] Mr.

Levine starts with the premises that all relevant information / documentation must be disclosed; and that under the Civil Procedure Rules (1972) the semblance of relevancy test requires disclosure of information/documents which could likely assist a party in proving or disproving a fact in issue at trial (i.e. the existence of the fact is a "live" issue). [ 20 ] Mr. Levine argues specifically that the manner in which the Defendant's insurer handled and assessed the Plaintiff's claim for damages after he was injured could likely assist him in proving that:

a) The conduct of the Defendant (or more correctly its insurer) rather than the Plaintiff, has been responsible for undue delay, if any, which could affect the length of time that the prejudgment interest award will cover - s. 41 (

k) Judicature Act , R.S.N.S. 1989 c. 240; and the amount of costs generally - Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) , 2011 NSSC 429 per Duncan J.;

b) the Defendant's conduct "can be consistent with a claims negotiation process that amounts to misconduct potentially to the end of obtaining a negotiating advantage" - page 5 of brief June 19, 2012. [ 21 ] He replies to the Defendant's assertions in its brief, that it is prematurely arguing the merits of the costs award rather than the extant issue - is there merit to the Plaintiff's request for further disclosure? [ 22 ] Furthermore, Mr. Levine argues that if the court examines the proposed disclosable materials, Roots will not be able to show a proper basis for all the redactions.

Defendant's Position [ 23 ] The Defendant argues that the conduct of the Defendant's insurer is not relevant in this case because: (

a) The issue of liability for the Plaintiff's claim was determined at trial in May 2009;

(

b) the Honourable Justice Boudreau determined that the Plaintiff was 50% contributorily negligent and therefore 50% responsiblefor his resulting damages, if any; (

c) the finding of 50% responsibility on the part of the Plaintiff supports a conclusion that the Defendant had a reasonable basis fordisputing liability with respect to this claim; (

d) the Honourable Justice Boudreau ordered that each party bear its own costs of the trial of liability in this matter, thereby implicitlytaking into account considerations relevant to the issue of costs with respect to the parties' decision to proceed to trial on the issue ofliability; (

e) liability, and costs with respect to liability, are no longer in issue in the existing proceeding; (

f) assessment of the Plaintiff's damages, if any, is the only remaining issue in this litigation; (

g) the insurer of the Defendant in a tort claim does not owe a duty of good faith to a third party Plaintiff nor does it owe any otherduty to a Plaintiff with respect to its assessment of the Plaintiff's claim. Accordingly, its assessment of the claim cannot give rise to anaward of damages to the Plaintiff nor is it relevant to the assessment of costs; (

h) the Plaintiff's Statement of Claim does not include any allegations with respect to the manner in which the Defendant or itsinsurer conducted the assessment of the Plaintiff's claim. Accordingly, this is not a "matter in question in the proceeding", ascontemplated by Rule 20.01(1) of the Nova Scotia Civil Procedure Rules (1972). (

i) in addition to the foregoing, the Defendant has produced all relevant documentation, subject to the exclusion permitted by Rule31.15(2) of the Civil Procedure Rules (1972). (At paras. 37 and 58 of its Brief.) [24] Regarding the redactions in the disclosure to date, the Defendant's counsel has provided greater specificity to its list ofdocuments by its letters to the Plaintiff dated June 21 and July 3, 2012, and one further minor removal of a redacted date, time and placeof the incident (p. 33 to Exh. “B” of Mr.

Levine’s affidavit). [25] Roots counsel has provided the unredacted materials for review by the court should it decide it appropriate to do so. [26] In a nutshell, Roots says the redacted material/information is either irrelevant, or need not be disclosed pursuant to cases suchas Clark v. O'Brien (1996) 1995 NSCA 232 , 146 N.S.R. 2d 135 (CA); Sydney Steel Corp. v. Mannesmann Pipe and Steel Corp.(1985) (NS SC), 69 N.S.R. (2d) 389 (SC) and Civil Procedure Rule (1972) 31.15(2) which reads: 31.15.

(1) Unless the court orders, no document shall be admissible in evidence on behalf of a party unless, (

a) reference to it appears in the pleadings, or in a list of documents filed and served under rule 20.01 by any party; (

b) it has been produced by any party or an officer, director or managing agent of a party that is a body corporate, partnership or

association, on an examination for discovery; (

c) it has been produced by a witness who is not, in the opinion of the court, under control of the party; (

d) it is a plan, photograph, or model in respect of which the requirement of rule 31.07 has been satisfied. (2) Paragraph (1) does not apply to a document that is used solely as a foundation for, or as part of a question in, cross-examination or re-examination. Analysis [ 27 ] At the hearing Mr. Levine ’ s counsel raised concerns about the affidavit filed by Ms. Arab Clarke viz - see the letters filed as Exhibits No.1 and No. 2 herein [Exhibit No. 3 was filed only to express in writing for the Court ’ s convenience the argument of the Plaintiff]. In essence Mr.

Levine sought the Court strike or ignore paras. 5 to 11, 13 to 17, 19 to 24, 34 as irrelevant and 43 as inadmissible hearsay. [ 28 ] Underlying these objections is the Plaintiff ’ s position that rather than Ms. Arab Clarke being the affiant, it should be someone who has custody of the records (the Plaintiff argues someone like Michelle Poirier of the insurer) and thereby would be subject to more meaningful cross examination. To this Ms.

Arab Clarke replies that under the old Rules (List of Documents CPR 20.01) it was the solicitor who produced what materials they had available/received from their clients. [ 29 ] I conclude that Ms. Arab Clarke ’ s affidavit is in proper form considering the purpose it is intended to serve - i.e. set out the procedural history and positions taken by the parties, including her assertion that she has provided all materials required, from the materials she received from her client Roots, to the Plaintiff (excluding the redacted items which she has provided to the Court in unredacted form). [ 30 ] Has Mr.

Levine made the conduct of the insurer of Roots a live issue, having a semblance of relevance to an issue that will be in dispute at the trial - i.e. prejudgment interest and costs of the causation/damages assessment issues? [ 31 ] I am not satisfied that Mr. Levine has placed an evidentiary basis before me that raises this argument from “ fishing expedition ” to air of reality - Civil Procedure Rules (1972) 20.01(1) and the jurisprudence - e.g. para. 11, Canada Life Mortgage Services Ltd. v. Leeside Estates Ltd., 2002 NSSC 30 . Mr.

Levine ’ s counsel could not when asked, point to any specific compelling evidence that there was an air of reality to his assertion that the insurer ’ s handling of Mr. Levine ’ s claim was relevant. [ 32 ] The mere fact of delay and lack of the Defendant ’ s requesting an IME (independent medical examination) of Mr. Levine until December 2011 and the other circumstances cited by the Plaintiff do not make an examination of the insurer ’ s conduct and its entire file appropriate. [ 33 ] I note that Mr.

Levine ’ s brief regarding its assertion about the insurer ’ s conduct herein is replete with language suggesting that he recognizes the argument's fragility: e.g. in his June 19, 2012, brief (pages 3 to 4): The conduct of the Defendant, the Plaintiff suspects ....is consistent with, among other things: 1 - An intention...to suggest that his complaint of debilitation and pain was not genuine...

4 - An attempt on the part of the insurer to avoid committing itself to expressing the alleged inconsistencies by adopting the positionthat its reasons for deprecating the claim were obvious, with the impact of producing a course of litigation. Such approaches can be consistent with a claims negotiation process that amount to misconduct potentially to the end of obtaining anegotiating advantage. [34] I observe that this perceived fragility is reinforced by:

i) the fact that no mention of this position was made known to the Defendant until December 21, 2011 - Exh. “H” to the affidavit of Ms.Arab Clarke; ii) there are no affidavits from Mr. Levine’s previous counsels (Joseph Roza; Robert Stewart, Q.C.) that give a direct evidentiary basisfor the progress or lack thereof of the litigation from between 2001 and late 2009; iii) I note here that while “special costs” can be ordered for misconduct during the litigation, misconduct prior to litigation should be pleaded as a cause of action - e.g. para. 32 Foundation Co. of Canada Ltd. v.

United Grain Growers Ltd. (1996) 8 C.P.C. (4th) 354(BCSC) affirmed [1998] BCJ No. 333 (CA) - no specific claim for aggravated damages was made at any time in the pleadings;Moreover, as to prejudgment interest, Mr. Levine can present his previous counsel’s evidence at the trial if he wishes in this respect, but Inote that s. 41(1)(k)(iii) of the Judicature Act only permits less prejudgment interest to be paid to a successful claimant if the claimanthas been responsible for undue delay and the Defendant has the onus; iv) notwithstanding Mr.

Levine’s statements at para. 46 of his affidavit that: “I have understood these events to reflect...an attempt toleverage my claim and discourage me from asserting a claim for debilitation during the course of an injury which was highly debilitatingand demoralizing”; his statements are his subjective opinion of what meaning can be ascribed to what he has personally seen or heardfrom the insurer’s representatives and are not proper content for an affidavit - Civil Procedure Rule (2009) 39 and the sentiments ofJustice Davison in the often cited case Waverley (Village) v.

Nova Scotia (Minister of Municipal Affairs) (1993) 1993 NSSC 71, 123 N.S.R. (2d) 46.

v) Mr. Levine himself has been less than diligent in providing disclosure to the Defendant - see the April 19, 2012 order of Justice Hood(para. 23 and Exh. E to affidavit of Ms. Arab Clarke, and paras. 19 - 20); vi) Mr. Levine has produced no authority for the proposition that an insurer’s handling of a third party’s claim can affect the costs awardas between a Plaintiff and Defendant as is the case here - see eg. McAlpine v. Econotech Services Ltd. 2004 BCCA 111 and Orkin, theLaw of Costs Toronto (looseleaf to May 2012 at p. 2 - 13); vii) Mr.

Levine did not expressly plead these claims in his pleadings and arguably they are not "a matter in issue" - in effect he isclaiming "aggravated damages" by the indirect means of claiming greater costs and pre-judgment interest - Bevis v. Burns 2006 NSCA56; viii) the

interpretation of Justice Boudreau’s order (i.e. The parties shall each bear their own costs of the trial of the liability issue) is bestleft to the trial judge dealing with causation and quantum of damages (if any); ix) having accepted that there is no air of reality to the claimed relevance regarding the Plaintiff's request to have disclosed to him theentire un-redacted file of the Defendant's insurer, I am also asked to expressly review and consider whether those materials produced todate to the Plaintiff have properly been redacted or not;

x) there was no complaint about the redactions in the Defendant’s List of Documents filed on December 12, 2003 until very recently; xi) I accept that in Nova Scotia the law is to permit redactions of irrelevant portions [as well as privileged or statutorily exceptedportions] of documents unless there is a good reason to disclose them such as where redacting them “will distort the meaning andcontinuity of the documents” (per Moir J in Saturley v.

CIBC World Markets Inc., 2011 NSSC 310 at paras. 101-105); yet there is alegitimate concern here that the materials sought overreach what is required and amount to a “fishing expedition” - see (as he then was)Justice J.M. MacDonald’s comments about the tension between liberal disclosure and judicial efficiency in Gould Estate v. EdmondsLandscaping and Construction Service Ltd. (1998) (NS SC), 166 N.S.R. (2d) 334 affirmed

(1998) N.S.J. No. 127(CA) and Justice Leblanc’s treatment of this issue in Murphy v. Lawtons Drug Stores Ltd. 2010 NSSC 289. Similarly, the opinions orattitudes (even if unfavourable to the Plaintiff) of the insurer’s representatives are generally irrelevant to a claim for costs / prejudgmentinterest in these kinds of circumstances - para. 29 in Sydney Steel Corp. v. Mannesmann Pipe and Steel Corp. (1985) (NS SC), 69 NSR (2d) 389 (SC) per Hallett, J.; xii) To alleviate any concern by Mr. Levine, I decided to review the unredacted materials Ms. Arab Clarke provided to the Court.

Afterexamining the Defendant's redactions, I conclude that they are proper as they either involve irrelevant matters or are privileged /excepted under the Rules. Conclusion [35] I find myself unsatisfied that the requested disclosure, regarding the manner in which the Defendant's insurer handled Mr.Levine’s claim, should be ordered in the circumstances of this case. [36] I dismiss the motion with costs in any event of the cause to the Defendant in the amount of $750.00. J.