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John Doe v. Roman Catholic Episcopal Corp. of St. John's

Between
John Doe (G.E.B. #36), plaintiff/applicant, and
The Roman Catholic Episcopal Corporation of St. John's, first
defendant/first respondent, and
The Christian Brothers' Institute Inc., second
defendant/second respondent

[2000] N.J. No. 252
Docket: 1999 No. 01T 3234

Newfoundland Supreme Court - Trial Division
Hall J.

Heard: August 7, 2000.
Judgment: filed August 29, 2000.
(20 paras.)

Counsel:

Geoffrey E. Budden, for the plaintiff/applicant.
Thomas O'Reilly, Q.C., for the first defendant/first respondent.
J. David Eaton, Q.C., for the second defendant/second respondent.

HALL J.:—

BACKGROUND TO PRESENT APPLICATION:

¶ 1 This present matter is one of 40 similar actions (the "Actions") commenced by various John Doe Plaintiffs against the First and Second Defendants. In an earlier order in this matter filed June 13, 2000 I ordered:

THAT unless otherwise ordered:

(a)		all documentation filed with respect to the within application in respect of the within action shall also be deemed to have been filed with respect to the similar applications in those actions set forth in the within Schedule "A" (which schedule is reproduced as Schedule "A" to this judgment);
(b)		all Orders filed with respect to the within application in respect of this action shall be deemed to have been filed with respect to the similar applications in those actions set forth in the aforenoted Schedule "A".

¶ 2 The statement of claim in this, and the other 40 actions, essentially alleges that the various Plaintiffs were children under the care and authority of the Defendants and were financially, emotionally, physically and otherwise dependent upon the Defendants and were, in law, beneficiaries of a fiduciary relationship with the Defendants. It is alleged that the Defendants owned/operated, or were responsible for the operation of an orphanage in the city of St. John's known as Mount Cashel Orphanage and that while residents of that orphanage, the various Plaintiffs were subjected to numerous sexual, physical and emotional assaults by various lay Christian Brothers employed at the Orphanage, and as a result the Plaintiffs suffered physical and emotional abuse, and other injuries (including irreparable psychological harm) and sustained continuing resulting damages.

¶ 3 By an ex-parte order dated the 3rd of March, 2000 the Honourable Chief Justice Hickman of this Court permitted the Plaintiff to effect service of the statements of claim in the Actions upon the Second Defendant at the city of New Rochelle in the State of New York, United States of America. The ex-parte order for service ex juris upon the Second Defendant was based upon an application which stated:

The Plaintiff's proceeding against the Second Defendant is founded, inter alia, upon a tort committed within the Province of Newfoundland.

The only affidavit filed in support of the interlocutory application ex parte for service ex juris was that of the Plaintiff's solicitor who stated that he was familiar with the matter and that he believed that the Plaintiff had a good cause of action against the Second Defendant.

¶ 4 A defence has been filed in this matter by the First Defendant. The Second Defendant has not filed a defence and in an interlocutory application (inter partes) filed April 12, 2000 the Second Defendant stated that it was in no way connected with the ownership, operation, management, direction, control or supervision of Mount Cashel Orphanage, and did not employ any individuals who worked there, nor did it have any direction, control, or supervision over any such person, or Brother, who was there during any relevant period. The Second Defendant stated that the Orphanage was operated by the Congregation of The Brothers of The Christian Schools of Ireland ("the Congregation"). The Second Defendant says that it was incorporated in the State of New York as a not-for-profit-corporate entity without share capital and is concerned only with the management of property entrusted to it to manage, and that it does not employ, or direct, The Brothers of the Congregation and the Brothers are not answerable to it. The Second Defendant further stated that it has not established or operated any schools or undertakings outside of New York State and that it has no dealings with any of the affairs of the Congregation, especially the affairs of the Congregation with respect to Mount Cashel Orphanage. In its interlocutory application the Second Defendant applied for an order setting aside the service of the statement of claim on the Second Defendant and setting aside the order granting leave to the Plaintiff to serve the statement of claim outside of the jurisdiction of this Court. This interlocutory application seeking to set aside the service ex juris has not yet been heard by this Court and will be heard on September 6, 2000.

¶ 5 In support of its interlocutory application to have the order for service ex juris set aside, the Second Defendant has filed an affidavit of James B. Moffett. In his affidavit, Brother Moffett deposes that he is the Province Leader (formerly known as Brother Provincial) of the St. Patrick's Province Centre of the Congregation. He also deposes that he is the president of the Second Defendant. In his affidavit Brother Moffett deposes as to the organizational structure of the Congregation, its various Provinces, formation of the Second Defendant, the history of the Christian Brothers in Newfoundland and their relationship to the operations of Mount Cashel Orphanage and St. Patrick's Hall School. Essentially, Brother Moffett deposes that the affairs of the Congregation with respect to the operation of the Mount Cashel Orphanage, and the St. Patrick's Hall School, were under the direction of various Brothers Superior of the Congregation, and that the operations of these two institutions were funded by various sources of funding totally unconnected with the Second Defendant. Brother Moffett deposes that the Second Defendant had no connection with either of these two institutions.

THE PRESENT APPLICATION:

¶ 6 On the 21st of July, 2000 the Plaintiff filed this present application seeking an order for interrogatories and discoveries of certain named individuals in the application, including Brother Moffett. The Plaintiff states that the interrogatories and discoveries are necessary to enable the Plaintiff to properly respond to the Second Defendant's application to have the order for service ex juris set aside, and to "test the assertions" contained in the Second Defendant's application to set aside service ex juris, including the assertions contained in the affidavit of Brother Moffett. The individuals to whom the various interrogatories are to be directed (in addition to Brother Moffett), are various officers of the Second Defendant resident in New York, the Director General of the Congregation who resides in Italy, and the Provisional Liquidator of The Christian Brothers of Ireland in Canada Inc., who resides in Toronto, Ontario. In addition, discoveries are requested of the Provisional Liquidator aforesaid, a Brother Darcy who resides in this province, and a Brother McHugh who resides at or near Toronto, Ontario. The latter two Brothers were apparently active in the administration of the affairs of the Congregation in Newfoundland at the relevant time.

¶ 7 Beyond the assertions contained in the present application that the interrogatories and discoveries are necessary to respond to and test the assertions contained in the Second Defendant's application and those in the affidavit of Brother Moffett, no other evidence is proffered as to why an examination of these individuals, by either interrogatories or discovery, is necessary. Attached to the present application as Schedule "A" are the interrogatories (comprising 41 different questions) directed to Brother Moffett. Also attached are the various draft notices of examination for discovery tendered to be directed to the Provisional Liquidator aforesaid, Brother Darcy and Brother McHugh.

¶ 8 A review of the interrogatories addressed to Brother Moffett, which appear in Schedule "A" to the present application, reveals, as a general thrust, an attempt to investigate the assertions of Brother Moffett to the effect that the Second Defendant never had anything to do with the operation of Mount Cashel Orphanage or St. Patrick's Hall School. Inter alia the interrogatories seek evidence as to the existence of documents; financial information; correspondence; information on the operation, leasing, mortgaging or owning of property outside of the State of New York; information respecting the employment of individuals outside of the State of New York; information with respect to civil corporations, partnerships, joint ventures, associations or trusts to which the Second Defendant is related; information as to the knowledge that the Second Defendant had of the various allegations against the individual Brothers contained in the statements of claim; information as to whether the Second Defendant has made any financial contributions to the defence of the various-named Brothers; and other generalized information all aimed at testing the assertions of Brother Moffett and the assertions contained in the Second Defendant's application to have the order for service ex juris set aside.

THE POSITION OF THE SECOND DEFENDANT:

¶ 9 The Second Defendant, inter alia, advanced the following argument against the Plaintiff's present application:

(A)

Real and substantial connection/other reasonable grounds tests:

Under this heading the Second Defendant argues that there are Constitutional limits to the jurisdiction which can be conferred by a Provincial Legislature on that province's Courts relative to extra-territorial service. Counsel argued that consideration of whether there is a real and substantial connection with the province, or other reasonable grounds for assuming jurisdiction, may be a factor for the Newfoundland Court hearing an application for service ex juris to consider before exercising its discretion to authorize that type of service.

(B)

Second Defendant not a proper party:

Counsel for the Second Defendant argues that in this present action we have one party, namely the Second Defendant, over whom in personim jurisdiction is in dispute. The Second Defendant has not appeared in this action except to get the service ex juris order set aside, and counsel contends that the Second Defendant has, therefore, not submitted to the jurisdiction of this Court. He contends that the Second Defendant is not a proper party and that it is entitled to, and must do, whatever is necessary to protect its interests either in this province or in the Courts of the State of New York to which it is subject as a New York resident corporation. Counsel contends that how the Second Defendant acts in this Court on this matter may affect how it is treated by the New York Courts in any action commenced by the Plaintiffs in that jurisdiction with respect to the same subject matter. He contends that if the Second Defendant participates in any proceedings in this matter, for any purpose whatsoever, (other than the application to set aside service on it) it will be deemed by New York Courts to have attorned to the jurisdiction of this Court for all purposes of these Actions. He asserts this position even though I suggested that this Court might issue an order to the effect that by answering the requested interrogatories, or by participating in the requested discoveries, the Second Defendant would not be considered by this Court to have attorned to the jurisdiction of a Court over this matter generally. The Second Defendant's counsel indicated that the Second Defendant had a legal opinion of New York counsel to this effect, but this opinion was not tendered in evidence at the hearing of the present application.

(C)

Onus on Plaintiff to establish grounds for service ex juris order:

The Second Defendant contends that the obligation is upon the Plaintiff, and remains upon the Plaintiff to satisfy the Court that the order for service ex juris upon the Second Defendant ought to be granted. He contends that this onus must be satisfied without the assistance of the discovery or interrogatory processes of the Court. In essence, he contends that unless the Plaintiff is able to establish absolutely and finally, at the time of the original application for service ex juris, that the tests for permitting service ex juris are met, then subsequent use of the discovery or interlocutory processes cannot be conscripted to aid in establishing grounds sufficient to justify the service ex juris order or to defend against an application like the Second Defendant's to have the service ex juris order set aside.

(D)

Proliferation of discovery/interlocutory processes in interlocutory applications:

Counsel for the Second Defendant contends that if the Plaintiff's present application is allowed, there will be an uncontrollable proliferation of similar applications in interlocutory matters come before the Court. He argues that the Court ought to be extremely reticent in allowing this expansion of the discovery/interlocutory processes into the area of interlocutory applications.

DECISION:

¶ 10 I cannot accept the position of the Second Defendant as set out in subparagraphs A, B, and C, par. 9 of this Judgment. The Plaintiff has already received his order permitting service ex juris. The Plaintiff satisfied the Honourable Chief Justice that grounds existed to permit the order for service ex juris to go. This present application is not to contest the validity of that order. The purpose of the present application is to determine whether the additional remedies of interrogatories and discovery are available to bolster the position of the Plaintiff and aid him in defending the Second Defendant's application to have the order for service ex juris set aside. Rule 31.02(1) of the Rules of Court stipulates that interlocutories shall relate to the same matters as may be dealt with by an examination for discovery under Rule 30.08. Rule 30.08(1) provides that any person being examined upon discovery shall answer any question within that person's knowledge, or means of knowledge, regarding any matter, not privileged, that is relevant to the subject matter of the proceedings, even though it is not within the scope of the pleadings. Rule 30.13 provides that all or any part of a deposition, so far as admissible under the rules of evidence, may be used against the party who was present or represented at an examination for discovery to contradict or impeach the testimony of the deponent as a witness. Such answers to interrogatories are able, under Rule 30.13(1) to be used either at a trial or "upon a hearing of an application". There is nothing in the Rules which prohibits the use of interrogatories and discovery by a Plaintiff to bolster his defence to an application on the part of a Defendant to have an order for service ex juris set aside. Therefore, absent any jurisprudence interpreting these Rules to the contrary, the interrogatories and discoveries requested by the Plaintiff appear to be in order.

¶ 11 I am satisfied that the general purpose of the Rules relating to discovery and interrogatories are aimed at facilitating disclosure between the parties and preventing surprise at trial or in any hearing. The interrogatories must obviously be connected in some manner with, or be of assistance to the interrogating party in relation to a live issue in the dispute. Questions can be asked if the answers sought are reasonably calculated to lead to the discovery of admissible evidence. Therefore "fishing expeditions" are allowed subject to the general principle that an examination must be conducted in good faith and in a reasonable manner so as not to annoy, embarrass or oppress the examinee. I am satisfied that the interrogatories sought to be answered, and the discoveries proposed to be conducted, are not intended in bad faith, or intended to annoy, embarrass or oppress the examinee and are relevant to the issues raised in the Second Defendant's application to set aside the order for service ex juris.

¶ 12 In Fowlow v. Carlson and Ortho Pharmaceutical (Canada) Ltd. (1989), 77 Nfld. & P.E.I.R. 285, Mr. Justice William Adams of this Court dealt with a case involving a Plaintiff father and daughter against a doctor and a drug company alleging that the mother and wife died of heart failure caused by a birth control pill. Before filing its defence, the drug company applied to examine the doctor who performed the autopsy and for production of hospital records respecting the deceased. Mr. Justice Adams allowed examination of the doctor but denied the request for production of hospital records based upon a statutory prohibition contained within the Hospitals Act. In par. 11 of his decision, Mr. Justice Adams states:

"In dealing with applications for discovery of persons and the production of documents Chief Justice Hickman of this court stated in Bradbury v. Cabot Insurance Company (1988), 70 Nfld. & P.E.I.R. 310; 215 A.P.R. 310, at p. 314:

"It is well-established practice in this court, when dealing with applications for discovery of persons and the production of documents, that the relevant rules be interpreted liberally to effect full disclosure. This practice of encouraging and where necessary, insisting upon wide disclosure, is being followed by Canadian and United Kingdom courts with unstinting enthusiasm. This approach is absolutely necessary if access to the courts is to be available to all citizens at reasonable cost. The obvious reason for such a salutary approach is to be found in Williston and Rolls, The Law of Civil Procedure (1970), vol. 2, page 743, where it says:

'Modern practice, whilst based on an adversary system has developed a number of safeguards to enhance the prospect that truth be found and justice be done as expeditiously and as inexpensively as possible. To attain this result, it is essential that at an early stage of the proceedings the issues be clearly defined, the parties know the case they have to meet, the element of surprise be eliminated, the parties be prevented from concealing material facts, and facts not in dispute be clearly admitted. Pleadings, particulars and discovery, each of which has a distinct and separate use, are designed to accomplish this purpose. ...'"

That approach is particularly applicable here. The second defendant is called upon to answer a claim based on a possibility that birth control pills manufactured or distributed by it and used by the deceased for a relatively short time before her death were in some way one of three factors causing her death. It is an uncertain proposition and one which in my opinion deserves fuller information for the second defendant properly and fairly to answer the allegations in the amended statement of claim. To require Dr. Baker to be examined on his findings in the light of the expressed uncertainty of the plaintiff's claim is hardly in the nature of a "fishing expedition". It is important that the second defendant should know, as far as the information gleaned from discovery will reveal, promptly and expeditiously the case it has to meet. There is no doubt that Dr. Baker's report is a matter relevant to the subject matter of the case; indeed, it is central to the issue here, and an oral examination on matters giving rise to his conclusion is justified before the defence is filed. The application for an order for the oral examination of Dr. Baker is granted."

¶ 13 Clearly, in Fowlow, Mr. Justice Adams was dealing with a very preliminary matter before pleadings were even closed. He found that discovery was available to the Defendant to test an assertion contained in a statement of claim. Why then should discovery not be available to the Plaintiff to test assertions of the Defendant contained in an application filed by a Defendant to have an order for service ex juris set aside? If I deny the interrogatories/discoveries requested, am I not merely subscribing to the Second Defendant's assertion "believe me"? Surely the Plaintiff is entitled to test the Second Defendant's assertions. This is consistent with the quotation in Fowlow from Williston and Rolls, The Law of Civil Procedure to the effect that:

"...it is essential that at an early stage of the proceedings the issues be clearly defined, the parties know the case they have to meet, the element of surprise be eliminated, the parties be prevented from concealing material facts, and the facts not in dispute be clearly admitted. Pleadings, particulars and discovery, each of which has a distinct and separate use, are designed to accomplish this purpose . ..."

¶ 14 The broad and liberal interpretation of the availability of discovery espoused by Adams J., in Fowlow is supported by Mercer J., of this Court in Winsor v. Marks & Spencer Canada Inc. (1995), 136 Nfld. & P.E.I.R. 1 where are par. 7 Mercer J., states:

"The purpose of discovery is to allow the parties to ascertain whether a plaintiff has a good cause of action or the defendant a good defence. It further enables parties to secure admissions to advance their case or weaken that of their opponents. It prevents surprise at trial and can reduce trial costs...." (Emphasis Added)

¶ 15 Clearly, if discovery is available to allow the Plaintiff to determine whether the Defendant has a good defence, and if discovery is available on hearings as well as trials, then discovery clearly is available to assist the Plaintiff in determining whether the Second Defendant has a good defence to the order for service ex juris granted in this matter by Chief Justice Hickman.

¶ 16 The Second Defendant asserts that it cannot participate in the discoveries requested, or answer the interrogatories requested, without being considered by the Courts of New York to have attorned to the jurisdiction of this Court. Whether that is the case or not, I cannot allow New York law to dictate how this Court operates and how it applies its Rules. The application of the Plaintiff for the requested interrogatories and discoveries are, in general, in compliance with the Rules of this Court and, therefore, are to be allowed. If the Second Defendant refuses to answer the interrogatories, or to have its counsel participate in the discoveries, those are issues to be dealt with at a later date. Under our Rules, the Second Defendant has more than ample protection. It can refuse to answer interrogatories on the basis that the interrogatory is irrelevant. It can object to questions on discovery in accordance with the rules governing the conduct of discoveries. It can even bring an application under Rule 17 or Rule 17(a) for summary judgment or summary trial seeking dismissal of the claim against it on the basis of the type of evidence put forward by Brother Moffett in his affidavit and the assertions contained in the Second Defendant's interlocutory application to have the order for service ex juris set aside. The Second Defendant cannot, however, have its cake and eat it too.

¶ 17 I assume from the Plaintiff's application that it is intended that, in addition to Brother Moffett, the following individuals will answer the same interrogatories as are provided to Brother Moffett and set out in Schedule "A" to the present application, namely: Brother Brian Walsh, Vincent J. Dougherty, Brother Edmund Garvey, and Jennifer Logan-Klassen. My Order is based on that assumption.

ORDER:

¶ 18 It is therefore Ordered that:

1.		Brother James B. Moffett, an officer of the Second Respondent, reply forthwith to the interrogatories of the Plaintiff dated July 19, 2000;
2.		That the Second Respondent and Brother Brian Walsh, the Second Respondent and Vincent J. Dougherty, Brother Edmund Garvey and Jennifer Logan-Klassen reply to the Plaintiff's interrogatories in the same form as set out in Schedule "A" to this present application;
3.		That Jennifer Logan-Klassen, Brother Bertram Darcy (resident in this province) and Brother Gabriel McHugh (resident in the Province of Ontario) attend upon discoveries as per the notices of discovery annexed to the present application as Schedules "B" "C" and "D" and that such notices be forthwith issued by the Registrar;
4.		The aforenoted interrogatories may be served ex juris;
5.		That all interrogatories will be answered within ten days of service of same upon the affected party or person.

¶ 19 In light of the Second Defendant's assertion that it is not a proper party to this action, it is not appropriate that costs of this application be ordered until completion of the Second Defendant's application to have the order for service ex juris set aside. Therefore, the parties are given leave to argue this point further before the Court should they so wish.

HALL J.

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