Sanford v. Carleton Road Industries Association, 2020 NSSC 185

SUPREME COURT OF Nova Scotia Citation: Sanford v. Carleton Road Industries Association , 2020 NSSC 185 Date: 20200521 Docket: Ken No. 347156 Registry: Kentville Between: Rhonda Sanford Plaintiff v. Carleton Road Industries Limited Defendant Judge: The Honourable Justice John A.

Keith Heard: February 25, 2020, in Kentville, Nova Scotia Counsel: Mark Tector and Richard Jordan , for the Applicant (Defendant) Carleton Road Industries Limited Derrick Kimball Q.C. and Christina Macdonald , for the Respondent (Plaintiff) Rhonda Sanford By the Court: reserving the right to release as a written decision [ 1 ] I rendered this decision orally on May 21, 2020.

At the time, I confirmed that, should the decision be reduced to writing, my conclusions and my reasoning will not change, but I reserved the right to make editorial and structural changes, as well as inserting the supporting case law where needed if I am asked to release this as a written decision.

ISSUE [ 2 ] The Defendant, Carleton Road Industries (who are described in this decision as either “ Carleton ” or “ the Defendant ”), is a not-for-profit society operating in Lawrencetown, Nova Scotia which provides vocational and life skills training for disabled adults. [ 3 ] The Plaintiff Rhonda Sanford (who is described in this decision as either “ Ms. Sanford ” or “ the Plaintiff ”) worked as a Vocational Program Instructor with Carleton from March 11, 2005 until her employment was terminated on September 23, 2008. [ 4 ] In a nutshell, Ms.

Sanford’s counsel at the time (i.e. in 2013), filed an expert report under Civil Procedure Rule 55 with the Court on November 29, 2013 but he did not immediately deliver it to Carleton. In fact, the report would not be delivered to Carleton until June 4, 2019, more than 5 years later. The surrounding circumstances are described in greater detail below. For present purposes, suffice it to say that Ms.

Sanford had three different counsel of record between 2013 and 2019; and, for reasons which are not entirely clear on the evidence before me, the need to deliver a filed expert report to Carleton was somehow overlooked or lost in the mix. [ 5 ] The matter has not yet been set down for trial. There has been no Date Assignment Conference. Nevertheless, the issue is whether the expert report filed in 2013, but not delivered to Carleton until 2019, should be struck on account of this very significant delay FACTS [ 6 ] By Statement of Claim dated April 2011, Ms.

Sanford sued Carleton, alleging wrongful termination, intentional infliction of emotional harm and related damages – including aggravated and punitive damages. Ms. Sanford also alleged negligent infliction of emotional stress or mental suffering, although that cause of action was subsequently struck by Order of Moir, J on November 5, 2014. [ 7 ] Carleton defended the action. [ 8 ] Ms. Sanford’s original legal counsel, who commenced the action, was Jonathan Cuming of Atlantica Law Group. [ 9 ] On June 10, 2013, Mr. Cuming wrote to Dr.

Myles Genest, a psychologist, requesting an expert medical opinion on “what, if any, emotional harm was suffered by Ms. Sanford and what, if any, inferences/conclusions may be drawn with respect to whether the

treatment she received at the hands of her former co-workers caused or materially contributed to that emotional harm.” [ 10 ] On July 25, 2013, Dr. Genest conducted an assessment of Ms. Sanford. [ 11 ] On September 16, 2013, Dr. Genest delivered his report entitled “Psychological Assessment” (the “ Genest Report ”). The covering letter attaching the report is addressed to Ms. Sanford directly – not her original counsel, Mr. Cuming. [ 12 ] Although the Court file still identified Mr. Cuming as Ms.

Sanford’s counsel of record, it appears that between the time he requested this expert opinion and the delivery of the expert opinion, Mr. Cuming moved law firms. Following Mr. Cuming’s departure, it also appears that the firm Atlantica Law Group retained Ms. Sanford’s file. This is because the solicitor of record would eventually become Bernard Conway of Atlantica Law Group. However, Mr. Conway would not file a Notice of New Counsel until December 11, 2013. [ 13 ] In any event, on November 29, 2013 and just prior to Mr. Conway filing the required Notice of New Counsel, Mr.

Conway filed the Genest Report with the Court. Thus, the report was filed about 2 ½ months after it was completed. [ 14 ] The Genest Report was not immediately delivered to the Defendant. As indicated, the reasons for this omission are unclear. Neither Mr. Cuming nor Mr. Conway filed evidence with the Court to explain the change in solicitors of record or the circumstances surrounding the failure to deliver the report to the Defendant. [ 15 ] About 2 ½ years later, on April 20, 2016, the Plaintiff’s counsel resumed examination of the Defendant’s representative, Catherine Savage.

That discovery occurred without the Defendant knowing that the Genest Report existed or having an opportunity to review it. On April 20 – 21, 2016, the Defendant’s counsel examined the Plaintiff, Ms. Sanford. During the course of that discovery examination, Ms. Sanford gave 32 undertakings. [ 16 ] On November 30, 2017 Derrick Kimball, Q.C., of Kimball Law filed a Notice of New Counsel and formally replaced Mr. Conway as solicitor of record for Ms. Sanford. [ 17 ] Immediately upon being retained, Mr. Kimball began the process of reviewing what was described as a voluminous file.

One of the first tasks was to answer the undertakings which arose prior to his retention, during the April 2016 discovery examination. That process took about three years. Mr. Kimball was assisted in this effort by his associate, Christina Macdonald, who filed an affidavit in response to this motion. [ 18 ] On May 14, 2019, Mr. Kimball and Ms. Macdonald provided answers to the outstanding undertakings. [ 19 ] The answers to undertakings referenced the Genest Report, which had already been filed with the Court in 2013.

Shortly after receiving these answers, the Defendant’s counsel expressed significant concerns that the Genest Report was filed some 5 years earlier, but never delivered to or received by the Defendant. [ 20 ] In an affidavit filed in response to this motion, the Plaintiff’s co-counsel, Christina McDonald, acknowledged that: “…we were surprised to be advised by counsel that the Defendant had no prior knowledge of the Genest report”. [ 21 ] I have no doubt that both the Plaintiff’s counsel and the Defendant’s counsel were surprised that an expert report filed by the Plaintiff more than five years before had not yet been delivered to the Defendant.

It is a remarkably long period of time for a document filed with the Court to have not been delivered to a party otherwise entitled to notice. [ 22 ] On June 4, 2019 and immediately upon being advised of the non-disclosure, current counsel for the Plaintiff (Mr. Kimball) delivered the Genest Report to the Defendant’s counsel. ANALYSIS

a) Position of the Parties [ 23 ] The parties concede that the belated delivery of the filed Genest Report does not technically breach Rule 55 governing Expert Reports.

Rule 55.03(1) simply states: A party to an action who wishes to offer an expert opinion, other than in rebuttal of an expert opinion offered by another party, must file the expert’s report no less than six months before the finish date, or by a deadline set by a judge. [ 24 ] Nevertheless, the Defendant argues that delivery of the Genest Report more than 5 years after it was filed breached Rule 31.15(1) which states: A party who files a document must deliver a copy of the document to each other party immediately before or after it is filed, unless one of the following applies: (

a) The other party is disentitled to notice; (

b) The motion is made ex parte ; (

c) The parties agree or a judge orders, that notice is not required. [ 25 ] None of the exceptions that would otherwise require immediate disclosure of a filed document apply here.

[ 26 ] The Defendant further argues that this breach, in terms of failing to file this expert report, cannot now (many years after the fact) be simply excused as an irregularity under Rule 2.02. The Defendant further argues that the impact of the breach was not merely technical, it says that it suffered significant prejudice as a result of this breach. [ 27 ] The nature of the alleged prejudice is described in

part in the affidavit of McKenzie Akin, Executive Director for the Defendant, filed in support of this motion. He states that the Defendant has lost its opportunity to engage an expert to assess Ms. Sanford’s psychological condition in 2013 or 2014 [ 28 ] The Defendant repeats this claim of prejudice in its written submissions and elaborates on the alleged prejudice by noting that: 1. the Defendant also lost the opportunity to discover Ms. Sanford in 2016 with respect to the Genest Report. 2. the Defendant states in their written submissions: While an expert may be able to determine whether Ms.

Sanford has a visible and provable illness in 2020, it seems highly unlikely that an expert could determine with any degree of certainty the extent to which [Carleton’s] actions 12 years ago 2008 because that illness rather than others factors or stressors in Ms. Sanford life which either pre-dated Dr. Genest’s report in 2013 or post-dated it. [ 29 ] The Plaintiff disagrees with these arguments and states in response to this motion that: 1. Rule 55 is entitled “Expert Opinion” and was specifically created to address when and how expert opinions must be delivered to an opposing party.

Here, the Plaintiff argues, all parties agree that there has been no technical breach of Rule 55. The deadline for filing and serving an expert report is, under Rule 55, connected to the Finish Date (i.e. 6 months before the Finish Date). Because there has not even been a Date Assignment Conference, no Finish Date has been scheduled. As a result, there is no connected deadline for filing expert reports. From that perspective, it might be argued that the Defendant has now received a copy of the Genest Report well in advance of any deadlines set out in Rule 55; 2.

As to Rule 31.15, the Plaintiff argues that Rule 55 prevails. Having said that, the Plaintiff does equally acknowledge that it would “appropriate” when filing documents with the Court (even expert reports) to immediately deliver those documents to all other parties who are otherwise entitled to notice. In this case, even if there has been a technical non-compliance with Rule 33.15, the Plaintiff immediately delivered the Genest Report upon becoming aware of the issue and thus corrected the problem.; 3.

The Plaintiff describes the Defendant’s approach to the Rules as “exacting and rigid” (para 6 of written submissions) and that “blind adherence” to the black letter of the Rules “can sometimes lead to absurd results”. For example, they observe that having now received the Genest Report, the Defendants were required, if they sought to do so, to file a rebuttal report within certain set deadlines. They have failed to meet those deadlines, which would technically be in contravention of the Rules. However, the Plaintiff says that this conclusion in the circumstances would be neither fair nor just.

b) Applicable Legal Principles [ 30 ] In my view, the following principles apply to the determination of this motion: 1. Rule 55 is entitled “Expert Opinion” and, among other things, it establishes minimal procedural standards for filing expert opinions in terms of notice and content; 2. Rule 55 also addresses other matters such as the issue of admissibility, which is related to the question of procedural fairness, but also distinct from that issue, and specifically the issue of procedural fairness.

The dichotomy between a question of a procedure and the substantive law on admissibility is recognized in Rules 55.01(1), 55.01(2), 55.10(3) and 55.15(4). All of these Rules clearly distinguish conformity with the procedural requirements under Rule 55 from the exclusive jurisdiction of the trial or hearing judge to determine issues of qualification, admissibility , and weight . Here, I am not the trial judge. Questions as to the admissibility of the Genest Report and the weight which might be attached to it would be for the trial judge to decide, not me. I refer to Rule 55.15(4) specifically.

That said, I would note in obiter that there is evidence before me which might influence or bear upon that decision, and I return to that issue below. For present purposes, I am primarily concerned with issues of procedural fairness which engages such concepts as sufficiency of notice to avoid surprise, avoid undue prejudice and enable a party to fairly respond to the opinions being relied upon; 3. As indicated, Rule 55 establishes minimal standards around procedural fairness for expert reports.

However, I disagree with the Plaintiff that it establishes a complete, standalone code which might be viewed in isolation from other important principles which animate the application of the Civil Procedure Rules . Thus, for example, Rule 1.01 confirms that the objectives of the Rules as a whole are for the “just, speedy and inexpensive determination of every proceeding.” I further disagree with the Plaintiff’s argument that Rule 31.15 is somehow inapplicable.

I note that the Plaintiff virtually conceded this conclusion when her counsel: a. expressed surprise that the Genest Report was not delivered to the Defendant. Obviously, counsel was surprised because she properly understood that the document ought to have been delivered to the Defendant soon after it was filed: and b. recognized that it would be appropriate when expert opinion is filed with the court that they would be immediately delivered to all parties entitled to notice.

I also conclude that the attempt to characterize the Defendant’s concerns around delay as overly rigid would, , in the circumstances, be unfair and undeserving. Respectfully, finding that delivering filed documents, such as an expert report to other parties, and then not delivering immediately would be inappropriate, is not merely some reflective or innate sense of procedural fairness that hovers outside the express language of the Rules.

That basic requirement to immediately deliver documents filed with the court to the opposing party is part of the very principles and purposes which inspire and infuse Rule 31.15. Where a party files an expert report with the Court, that party is bound to deliver the same report to other parties who are entitled to notice, in my view. Again, Rule 55 merely creates minimal standards. It does not express (nor is it intended to express) every applicable standard no matter when or how

an expert report is filed with the Court. 4. There are several other points worth summarizing:

a) First and foremost, simply because Rule 55 sets an outside deadline for filing expert reports does not mean that expert reports should be hoarded or only disclosed at the last possible moment before a mandatory deadline expires. Withholding expert reports becomes particularly egregious if it is done in an effort to achieve some improper strategic advantage;

b) Early disclosure of expert opinions can better ensure the promise of Rule 1.01 and, as well, begin to transition or enable the necessary “culture shift” which envisions proportionate proceedings and rejects unnecessary delay as represented by the Supreme Court of Canada decision Hryniak v. Mauldin , 2014 SCC 7 . On this I agree with Justice Lauwers, in Clarke v. Hassan , 2011 ONSC 467 , at paragraph 13 , where he states: The practice in this area of civil litigation that copies of expert opinions which a party intends to rely on should be delivered very soon after those opinions are obtained.

There will, obviously, be situations in which the issue of reliance is not clear. But in most cases, expert reports are provided quickly. [ 31 ] In terms of identifying the proper analytical perspective, I agree with the Defendant that the failure to deliver the Genest Report was a mistake or irregularity under Rule 2.02(1). The question becomes whether I should excuse that mistake or irregularity and, if so, on what basis might it be excused? On this, I adopt the approach taken by Justice Murphy in Hardy v. Prince George Hotel Ltd. , 2004 NSSC 168 , even though it was taken under the prior Rules.

This approach seeks to balance the presumption in favor of the trier of fact having access to all relevant evidence against the prejudice suffered by the innocent party due to late disclosure.

c) Application to the Facts [ 32 ] Applying these basic principles to this case, I find: 1. In my view, the Plaintiff was absolutely correct in filing the Genest Report as quickly as she did with the Court, but she was absolutely wrong in not immediately delivering it to the Defendant under Rule 31.15. 2. There is no doubt that the Genest Report was delivered late – inexplicably late and more than 5 years after it was filed. Litigation is expensive and draining. Delay creates uncertainty and compromises a litigant’s ability to move on with their lives.

Inaction and undue delay undermine the confidence which parties and the greater community have in the justice system and can exert a corrosive force on the rule of law. I find that there has been very significant delay here in the failure to deliver the Genest Report. 3. I also find that the Defendant has suffered prejudice beyond the inherent, corrosive effect of delay. The Defendant lost the ability to conduct a complete examination of Ms. Sanford. The Defendant’s own witness was also subjected to discovery without the benefit of the Genest Report which ought to have been disclosed by the time of the discovery.

There are other forms of prejudice, including the fact that certain physicians, whose opinions were relied upon by Dr. Genest, appeared to have died after his original report was written. I note this because the exhibits filed in support of this motion refer to, for example, the “late” Dr. Garvey, who was for a time Ms. Sanford’s psychologist. In addition, I agree with the Defendant’s basic proposition that it has now lost the opportunity to conduct a contemporaneous assessment of Dr. Genest’s opinion, including the facts which underpin that opinion. 4.

That said, the Defendant’s suggestion that it would be “impossible” for any expert to provide relevant evidence as to the extent to which the Defendant’s actions caused the alleged illness in 2008 may overstate the case. At a minimum, I would need opinion evidence from an actual expert before I could safely adopt that conclusion. Moreover, this conclusion seems to suggest that no expert would be able to offer a constructive opinion so many years after the event in question.

Any such decision could have wider ranging consequences that I am not prepared to entertain based on the record before me – and certainly not without an expert opinion. 5. But again, I do agree that the failure to deliver the Genest Report until more than 5 years after it was prepared and filed does create a prejudice and confers upon the Plaintiff an undue advantage in the sense that they were able to conduct an assessment of the Plaintiff at the time more closely aligned to the material facts in question. [ 33 ] Related to this issue of prejudice, but balanced against it, I must also note the following: 1.

The mistake does not appear to have been motivated by a misguided litigation strategy or a plan which was hatched to effectively exploit the Rules and the minimal deadlines set out in Rule 55 for the purpose of gaining an improper advantage. Being as charitable as I can, it was an unintentional mistake – a serious mistake which may come with other consequences but for the purposes of this motion before me, it was a mistake nonetheless; 2.

While I do not have sufficient evidence to make any final determination as to how blame related to the delivery of the Genest report might be fairly allocated, I have more than sufficient evidence to conclude emphatically that the Defendant was in no way responsible. However, I also have sufficient evidence to conclude that Ms. Sanford herself should not be held personally responsible. And I am loathe to attribute any potential sins of legal counsel upon the Plaintiff in the circumstances; 3.

To a degree, some of the prejudices identified by the Defendant can be remediated in the form of costs – both in terms of this motion but also in terms of having to conduct further discoveries of the Plaintiff that would not have been necessary had the Genest Report been produced in a timely fashion. In addition, other forms of potential prejudice may be somewhat ameliorated by the fact that Dr. Genest does appear to have maintained complete records from his assessment including the source data created when he administered certain tests on Ms. Sanford. I refer specifically to Exhibit “H” of Mr.

Akin’s affidavit, which is a letter from Plaintiff’s counsel dated June 4, 2019; 4. To the extent certain other prejudices cannot be remediated from a procedural perspective or from the perspective of costs, I

am satisfied that they may yet be addressed satisfactorily in terms of admissibility or the weight which the trial judge might ultimately attach to the opinions of Dr. Genest. Again, these are issues for the trial judge to decide, not me. In reviewing these issues, the trial judge may (or may not) refer to the concerns surrounding Dr.

Garvey described above or to the fact that the Defendant was denied the opportunity to conduct its own contemporaneous assessment and produce its own rebuttal report in a timely fashion. [ 34 ] In the end, the mistakes which were made are serious but they are not so egregious as to completely deny Ms. Sanford the opportunity to present this evidence at trial where it may be tested and where the opinion evidence may be subjected to questions around admissibility or weight. [ 35 ] I acknowledge that this has been a difficult decision, but I am swayed, and ultimately emphatically convinced, that Ms.

Sanford should not be so severely penalized for mistakes that might more properly be laid at the feet of counsel. [ 36 ] Having said that, and in addition to the costs associated with this motion, I would like to hear from counsel as to the costs associated with attempting to mitigate certain of the consequences associated with the late delivery of the Genest Report and, in particular, conducting a further discovery of Ms. Sanford on issues which were raised in the Genest Report, which was not made available to the Defendant’s counsel at the time of the original discovery.

As to any prejudice associated with the discovery examination of the Defendant’s representative, Catherine Savage, I would not order any costs at this stage against Ms. Sanford on this particular issue. I would simply note that the weight which might be attached to this discovery evidence is better left to the trial judge, having regard to the late delivery and any other relevant matters. [ 37 ] As a

summary, my decision is: 1. The motion is dismissed, and the Genest Report is not excluded; 2. Although the Defendant’s motion is dismissed, the Defendant is entitled to costs, in the circumstances. Counsel are direct to provide written submissions with respect to:

a) the costs of this particular motion, and

b) the costs associated with having to conduct a further, potential duplicate discovery of Ms. Sanford. If there are any other costs that counsel believe might have to be duplicated, I would be happy to hear those as well. Keith, J.