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

[2001] N.J. No. 31
Docket: 1999 No. 01T 3234

Newfoundland Supreme Court - Trial Division
HALL J.

Heard: November 3, 2000.
Judgment: filed February 1, 2001.
(68 paras.)

Counsel:

       HALL J.:—

BACKGROUND TO ACTION:

¶ 1      Forty John Doe Plaintiffs have commenced similar but separate actions against the First and Second Defendants. The Plaintiffs essentially allege that when they were children they were placed 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 injuries (including irreparable psychological harm) and sustained continuing resulting damages.

¶ 2      The Second Defendant is a body corporate incorporated in the State of New York, United States of America.  The Honourable Chief Justice Hickman of this Court (now retired) granted an ex parte Order which permitted the Plaintiffs to effect service of the statements of claim in the actions upon the Second Defendant at New Rochelle in New York State.  The ex parte Order for service ex juris on the Second Defendant was based upon an application which stated that the Plaintiffs' proceedings against the Second Defendant were founded inter alia upon a tort committed within the Province of Newfoundland.

¶ 3      The Second Defendant has not filed a defence and in an interlocutory application filed in this matter 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 stated 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 had not established or operated any schools or undertakings outside of New York and it has no dealings with any of the affairs of the Congregation, especially the affairs of the Congregation with respect to Mount Cashel Orphanage.

¶ 4      In an earlier application I had ordered that all Orders filed with respect to this action shall be deemed to have been filed with respect to the similar applications in those actions set forth in Schedule "A" to this judgment.

BACKGROUND TO PRESENT APPLICATION:

¶ 5      In order to defend against the Second Defendant's application to have the Order for services ex juris of the statements of claim set aside, the Plaintiffs filed an application seeking an Order for Interrogatories directed to and Discoveries of certain named individuals.  The Plaintiffs stated that the Interrogatories and Discoveries were necessary to enable it to properly respond to the Second Defendant's application to have the Order set aside and to "test the assertions" contained in the application to set aside service. The ultimate result of a series of applications directed to that end was a formal Order dated September 20th wherein the Second Defendant was ordered to answer, through an officer or agent of his own designation, the Interrogatories annexed as schedule "A" to the Plaintiffs' application of July 21, 2000. Formal reasons for judgment related to that Order were filed on August 29, 2000.

¶ 6      The Second Defendant has forwarded to the Plaintiff certain Answers to the Interrogatories.  In the present application and with respect to those Answers, the Plaintiff has stated in this present application:

¶ 7      The purpose of the present application therefore was to determine whether:

¶ 8      The Plaintiff seeks to establish that the Second Defendant is "in all respects the temporal identity and actor of the Congregation of Christian Brothers in Canada".  He adopts that phraseology from the decision of Mr. Justice Blair of the Ontario Court (General Division) in Re Christian Brothers of Ireland in Canada 1998 37 O.R. (3d) 367 (hereinafter the "CBIC case").  In the CBIC case (at p. 371, Blair J. set out an historical overview of the Christian Brothers in Canada as follows:

It should be noted that the boys referred to by Blair J. as having been abused between the mid-1960s and mid-1980s are not the same individuals who are plaintiffs in these present matters.

¶ 9      A series of issues arose in the CBIC case. Principal amongst them were:

¶ 10      To aid in determining these issues, Blair J. devoted considerable time to a review of the history of both the Congregation of Christian Brothers and the Corporation ("CBIC").  In that review he considered:

¶ 11      Based upon this review, and as stated earlier, Blair J. concluded that the Christian Brothers in Canada was in all respects the temporal identity and actor of the Congregation of Christian Brothers in Canada.

¶ 12      In this present matter the Plaintiff contends that analysis of the affairs of the Second Defendant such as was conducted by Blair J. into the affairs of CBIC will demonstrate that the Second Defendant was also a "temporal identity and actor of the Congregation" insofar as its activities related to Mount Cashel Orphanage.

THE INTERROGATORIES AND THE ANSWERS IN DISPUTE:

¶ 13      At pp. 11-12 of my judgment filed August 29, 2000 I concluded generally that Interrogatories were available to assist the Plaintiff in defending against the application to set aside the Order of the Chief Justice for service ex juris of the statement of claim.  I concluded:

¶ 14      I will now deal with the various Interrogatories and the Answers thereto supplied by the Second Defendant in order to determine whether the tests set out above have in fact been met.  Where a specific Interrogatory is not mentioned, this is because the Plaintiff is satisfied with the Answer of the Second Defendant to this Interrogatory.  The Interrogatories and Answers in dispute are:

Interrogatory No. 2

¶ 15      In this Interrogatory the Plaintiff asks what were the specific assignments, residencies and citizenships of Brothers James C. Whitty, Patrick J. Hennessy, James W. Power and George T. Frisby in 1906.  These gentlemen are the original signatories to an application for the formation of a "Membership Corporation pursuant to the provisions of the Membership Corporation Law of the State of New York".  Their application was made in September 1906.  The Second Defendant responds that it has no information to answer the Interrogatory and queries what possible relevance 94 years hence, the specific assignments, residences, and citizenships of these four gentlemen could have many decades prior to the alleged events giving rise to the causes of action in the present matters.

¶ 16      The Plaintiff's solicitor responds that the assignments of these individuals is important if their instructions from the Congregation were to create a mission for North America.  He further complains that the deponent Brother Moffett is able to provide detailed history of the affairs of the Congregation when it suits his purpose but does not do so when it does not.

¶ 17      Counsel for the Second Defendant responded that if the purpose of Interrogatory No. 2 is to establish a connection between the Second Defendant and the Congregation, then the answer to Interrogatory No. 12 satisfies the Plaintiff's needs under Interrogatory No. 2.  In Interrogatory No. 12 the Plaintiff asks that for the period 1940 to 1968, did any individual serve on the Board of Directors (of the Second Defendant) who were not members of the Corporation and, if the answer is in the affirmative, provide the names and current addresses of such individuals.  In its answer to that Interrogatory the Second Defendant responded that all members of the Board of Directors of the Second Defendant were members of the Congregation.

¶ 18      I am satisfied that the information sought by the Plaintiff under this Interrogatory is too remote to be relevant to the matters at hand.  They relate to a period of time some 36 year prior to the earliest possible relevant time frame for the matters at hand.  In my view to compel the Second Defendant to conduct the necessary research in order to put itself in a position to answer this question is oppressive to the Second Defendant and I order that Answer No. 2 of the Second Defendant's Answers to Interrogatories dated the 22 September 2000 is satisfactory.

Interrogatory No. 3

¶ 19      The Plaintiff asks if there are any bylaws of the Second Defendant and if so that same be annexed to the Answer. The Second Defendant answers that this Interrogatory goes far beyond the scope of the issue before the Court and is irrelevant to the issues under consideration.  I disagree with this position.  Clearly the bylaws which govern the affairs of the Second Defendant would give some insight into how it conducted its affairs and whether those affairs had any involvement with the subject matter of the present action.  I agree nonetheless with the Second Defendant that it is excessive that it be required to supply copies of all the bylaws for the whole period of time from 1906 onward.  I therefore order that the Second Defendant provide copies of all bylaws in force and in effect from January 1, 1940 onward.

Interrogatory No. 4

¶ 20      In Interrogatory No. 4 the Plaintiff seeks disclosure by the Second Defendant of financial statements, annual (or other periodic) schedules of assets and debts (including cash balances, annual (or other periodic) records of all money and other property (both real and personal) transfers between the Second Defendant and the St. Patrick Province Centre (and its predecessor Province and Mission) covering the period from 1940 to 1968 inclusive.  In its answer the Second Defendant says that it is not in possession or control of any such records.

¶ 21      The Plaintiff's solicitor does not accept the answer that this material is not available.  He is of the view that there must be some explanation given as to why it is not available and he finds it incredible that records for a period of 30 years are missing.  He argues that some explanation as to why they are not available ought to have been given in the answer to this Interrogatory.  The solicitor for the Second Defendant states that the answer is clear.  One cannot produce what one does not have.  He states that it is not at all unusual for institutions not to keep records of this duration. He points out that it is 60 years from the earliest time frame for which records are requested, i.e. 1940, and 32 years since the most recent period, i.e. 1968.  There is merit to the argument of the Second Defendant.  However the obligation of a responding party is to answer every Interrogatory to the best of his or her personal knowledge or from information available to him or her through any person (Rule 31.01(1)) This includes an obligation "to inquire of servants, agents and other persons under his control for information necessary to answer the Interrogatories if he does not have the information himself" (Attorney General of Newfoundland v. Churchill Falls (Labrador) Corporation Ltd., per Goodridge J. at p. 513).  The responding party cannot shield behind a claim of ignorance where the means of enlightenment are at his or her disposal.

¶ 22      I therefore order that:

Interrogatory No. 5

¶ 23      In Interrogatory No. 5 the Plaintiff queries whether there are within the possession or control of the Second Defendant any documents including minutes of the Superior General's Council, with respect to the establishment of St. Patrick's Province Centre (and its predecessor Province Mission) and to provides copies of same.  The Second Defendant has responded that it is not in possession or control of any such records and counsel for the Second Defendant states that the reasons for the lack of said records are the same as those set out with respect to Interrogatory No. 4.  Additionally he argues that the requested material is obviously material generated or created by the Congregation and not by the Second Defendant.

¶ 24      I am satisfied that Rule 30 and 31 did not require the Second Defendant to make inquiries as to the availability of the records of third parties in order to inform itself and be in a position to answer this Interrogatory.  I therefore order that no further response is required of the Second Defendant with respect to this Interrogatory.

Interrogatories Nos. 6 - 9, inclusive.

¶ 25      These Interrogatories ask:

¶ 26      In its Answers to these Interrogatives the Second Defendant responds that the questions are irrelevant to the issues before the Court.  Counsel for the Plaintiff responds that the process whereby Directors are elected to the Board of Directors of the Second Defendant is integral to determining the degree of connection between the Second Defendant and the Congregation and is germane to establishing that the Second Defendant is the temporal identity and actor of the Congregation.  The Defendant responds that the process of election or appointment is not relevant and acknowledges that all of the Directors of the Second Defendant are Christian Brothers.  The methodology of their appointment, he argues, cannot advance the Plaintiff's cause.  In reply, the Plaintiff says that the questions go to the question of leadership and control and if a person occupied a position within the Congregation and as a result thereof was ex officio a Director of the board of the Second Defendant, a degree of control of the Second Defendant by the Congregation is established.

¶ 27      I am satisfied that there is a wide scope for Discovery and Interrogatories in Newfoundland and that the information requested is potentially relevant and that there is no policy argument for exclusion of the evidence requested. Therefore it is ordered that the Second Defendant provide answers to Interrogatories Nos. 6 - 9, inclusive.

Interrogatory No. 11

¶ 28      In this Interrogatory the Plaintiff seeks information as to what persons have served on the Board of Directors of the Second Defendant from 1906 to 2000, inclusive, and for what periods of time.  In answer to this Interrogatory the Second Defendant responds that the question is irrelevant to the issues before the court.  Plaintiff's counsel responds that the purpose of the question is to establish cross-links indicating control of the Second Defendant by the Congregation and that therefore comparison of the Directors of the Second Defendant with those occupying positions of power within the Congregation is important to establish that control.

¶ 29      I am satisfied that with respect to the period from 1940 to 2000 the Interrogatory is not unreasonable and should not be difficult to comply with and it is therefore ordered that the Second Defendant answer the Interrogatories but that the Answer need only relate to the period from 1940 to the year 2000.

Interrogatories Nos. 14 - 16, inclusive.

¶ 30      In these Interrogatories the Plaintiff seeks information as to whether the Second Defendant has ever operated, leased, mortgaged or owned (solely or in conjunction with others), property anywhere in the world outside of the State of New York and seeks the civic addresses of that property and true copies of any deeds, mortgages or legal descriptions.  This same general question is applied to schools outside of the State of New York or orphanages anywhere in the world.  Plaintiff's counsel argues that the answers to these Interrogatories would provide insight into the operations of the Second Defendant.  He points out that the Affidavit of Brother Moffett filed in the application of the Second Defendant to have the Order for service ex juris set aside, says that the institute operates "principally in New York.  He argues that this is a question which goes to credibility and reliability of Brother Moffett as deponent.

¶ 31      Second Defendant's counsel questions how it can possibly be relevant to the matters at hand if the Second Defendant owned a building in the State of New Jersey.  What is the connection to Mount Cashel?  He points out that the issue before Blair J. in the CBIC case was completely different in that there was a particular interest/connection between CBIC and the Congregation and that was a current connection.  He argues that there is absolutely no indication of any connection whatsoever between the Second Defendant and Mount Cashel.

¶ 32      I am satisfied that, given the wide ranging nature of the Discovery/Interrogatory process in this Province and the importance of the answer to this question to test the credibility of the deponent, it should be a simple matter for the deponent to answer these Interrogatories and I order that the Second Defendant provide the requested answer to these Interrogatories.  It shall only be necessary however for the Second Defendant, at this time, to provide a listing of such properties and schools.  The remaining information sought appears to be part of an attempt to garner information about assets for later use in a judgement enforcement process.  The information is not necessary to contest the credibility of the deponent.

Interrogatory No. 17

¶ 33      In this Interrogatory the Plaintiff asks whether the Second Defendant has ever employed individuals who carried out the majority of their employment duties outside of the State of New York and, if so, to provide the identity of such employees.

¶ 34      The Second Defendant argues that this question is irrelevant insofar as it concerns employment of any individuals other than in Newfoundland and further answers that the Second Defendant has never employed anyone in Newfoundland.

¶ 35      I am satisfied that the answer that the Second Defendant has never employed anyone in Newfoundland is adequate.  The whole issue in question here is control of Mount Cashel.  If there is no one employed by the Second Defendant within Newfoundland, the degree of control necessary to establish tortious liability for the assaults in question in these matters can be argued to have not likely existed.  I am therefore satisfied with the answer given to this Interrogatory and no further answer is required.

Interrogatories Nos. 18 and 19

¶ 36      In these Interrogatories the Plaintiff asks:

¶ 37      With respect to issue (a) the Second Defendant responds that the question is irrelevant insofar as it concerns any related civil corporations, partnerships, joint ventures, associations or trusts anywhere other than Newfoundland.  It further responds that the Second Respondent has never had any such things in Newfoundland.  With respect to item (b) above the response is that the question is irrelevant and does not relate to the issues before the Court. Plaintiff's counsel responds that these questions are an attempt to flush out connections between the Second Defendant and other Christian Brother organizations with a view to showing a common control of all of these organizations.

¶ 38      I am satisfied that the Second Defendant's answer with respect to the related civil corporations etc. to the effect that it has never had any such things in Newfoundland is an adequate response to this question.  Additionally, with respect to the existence of financial or other legal transactions in the States of New Jersey, Massachusetts and Michigan owned by the St. Patrick's Province Centre, I am also satisfied that this question is irrelevant.

Interrogatory No. 20.

¶ 39      In this Interrogatory the Plaintiff seeks to know whether there have been any documents, transmittals, letters, memos, e-mails, faxes, or other written communications exchanged between the Second Defendant and the St. Patrick's Province Centre (and its predecessor Province and Mission) and if so that copies of same be supplied.

¶ 40      Plaintiff's counsel argues that an answer to this Interrogatory is important to establish the detail of connection between the Second Defendant and the Congregation and Mount Cashel.  He states that it is undeniable that there are striking connections between the Second Defendant and the Congregation.  Both are operating at the same time in some of the same places and with some of the same people, and the answer to these questions could go to the question of whether the Second Defendant is the temporal identity and actor of the Congregation.  He states he is simply attempting to duplicate the record that was available to Blair J. in the CBIC case.

¶ 41      I am satisfied that this question is oppressive. It is far too broad.  It covers almost a century and it does not in any way attempt to restrict itself to particular types of documentation or to documents related to particular issues. I am therefore satisfied that no further answer to this specific Interrogatory is required.

Interrogatories Nos. 21 and 22

¶ 42      In these two Interrogatories the Plaintiff asks:

¶ 43      With respect to issue (a) above the Second Defendant replies that the question is irrelevant and does not relate to the issues before the Court.  With respect to issue (b) it states the same thing and further states that the question suggests that the Second Defendant operated Mount Cashel and/or other schools in Newfoundland, which statement it says is incorrect.  The Plaintiff argues that the Answers to these Interrogatories would illuminate the relationship between the Second Defendant and the Congregation and Mount Cashel.  Second Defendant's counsel responds that the questions are totally irrelevant to the question of whether the Second Defendant owned or operated Mount Cashel from 1940 - 1968 and states that there is no connection between the question and the time frame under discussion.

¶ 44      I am not satisfied that any answers to these Interrogatories advance the case of the Plaintiffs in any manner.  The issue here is to establish a degree of relationship between the Second Defendant and the Congregation and Mount Cashel so that it can be argued that the Second Defendant controlled or owned or managed Mount Cashel.  When members of the Congregation who happened to be Directors of the Second Defendant may have become aware of the allegations or complaints of physical and sexual assault has no nexus to the question of control, ownership or management of Mount Cashel.  I find therefore that the questions are irrelevant and that no further answer to the specific Interrogatories is required of the Second Defendant.

Interrogatory No. 23

¶ 45      In this Interrogatory the Plaintiff asks which individuals, corporations, associations or religious orders or organizations (lay or otherwise) have made financial contributions to the legal defences of each of the individuals referred to in Interrogatory No. 21 and, if an affirmative answer is given, particulars are requested of the Second Defendant's knowledge about that party's contributions.  The Second Defendant responds that this Interrogatory is irrelevant and does not relate to the issues before the Court and that additionally it objects to answering this question on the basis of privilege but it does not set out any particulars whatsoever of the privilege.  Plaintiff's counsel responds that any privilege belongs to the individual Brothers either charged with or alleged to have committed the offences in question.  The privilege does not belong to the Second Defendant.  Plaintiff's counsel indicates he is not trying to pry into relationships between individual Defendants and their legal counsel.  He argues that the suggestion that who pays another legal fees is privileged is a new area in law.  The Second Defendant's counsel argues that how a lawyer is being paid goes hand in hand with representing that client.  It is an essential ingredient of the solicitor-client privilege.  He cites in support of that proposition the decision of Hickman, C.J.T.D. (now retired) in Pioneer Insulation Ltd. v. Newfoundland Processing Ltd. [1991] N.J. No. 159.  In Pioneer Insulation there was an application for production by the defendant of a report which had been prepared for use by the defendant in another action in which the plaintiff was not involved.  The plaintiff claimed for labour and the defendant denied that it was indebted to the plaintiff and in the alternative alleged that the plaintiff conspired with the plaintiff in the other action.  The plaintiff claimed that the report had direct bearing on the action and the defendant claimed privilege.  Hickman C.J. dismissed the application holding that the report in question was privileged for the purpose of the other action which was still ongoing and that the privilege prevailed against any person, including the plaintiff, even though the action in which the report was sought was not related to the action for which the report was prepared.  The Second Defendant argues that it is a matter of privilege as to who pays the legal fees of a defendant in a criminal action and that, based upon the logic of Pioneer Insulation, that privilege ought to extend to disclosing the answer to that question in a subsequent but unrelated action.

¶ 46      I am satisfied that there is a legitimate issue of privilege with respect to the question of who paid the legal fees of the Defendants in the criminal actions to which the present tort claims relate.  I am not satisfied that there is an adequate balance between the desirability for the disclosure of that information in this case as against what I regard to be a serious intrusion into the confidentiality which must exist between a solicitor and his client on matters of litigation.  I would regard compelling the Second Defendant in this matter to answer that question to be a serious intrusion upon solicitor-client privilege.  It is therefore ordered that no further response to this Interrogatory is required.

Interrogatory No. 24.

¶ 47      The thrust of this Interrogatory is to request of the deponent Brother Moffett whether, prior to being served with the statements of claim in these actions, he had ever discussed the allegations of sexual and physical assault with any other member of the Board of Directors of the Second Defendant particularly, but not limited to Vincent J. Dougherty (the Treasurer of the Second Defendant) and if the answer is in the affirmative what was the nature and substance of those discussions.  In its answer to this Interrogatory the Second Defendant says that the question is irrelevant and does not relate to the issues before the Court.

¶ 48      Plaintiff's counsel suggests that the answer to this Interrogatory would shed light on the interconnection between the Second Defendant and the Congregation/Mount Cashel.  He further suggests that privilege cannot be claimed in this matter because if the Second Defendant did not know it was being sued then such conversations cannot be considered to have taken place in anticipation of litigation.  He suggests that such discussions might not be an innocent exchange of information.  The conversations might have been in the nature of "Brother X was our employee at the time, what can we do to help?"  Counsel for the Second Defendant argues that this is merely another attempt to achieve indirectly information with respect to who financed the defences of certain Brothers with respect to the criminal charges.  I agree with this position by the Second Defendant and order that no further response to this Interrogatory is required.

Interrogatory No. 25.

¶ 49      This Interrogatory inquires whether the Second Defendant has ever had discussions or has sent, received or exchanged any correspondence, facsimile, e-mails, memos or like documentation with respect to the allegations of sexual and physical assault , to or with one Brother Edmund Garvey or any other member of the council of the Congregation Centre and, if the answer is in the affirmative identify the nature and substance of same.

¶ 50      Plaintiff's counsel argues that this question explores the relationship of the Second Defendant to the Congregation and that is what makes it relevant.  Counsel for the Second Defendant indicates that this is scattergun approach not related in time and in any event is a Congregational issue.

¶ 51      I am satisfied that the answer to this Interrogatory may well establish some degree of relationship between the Second Defendant and the Congregation/Mount Cashel.  While the question itself is unlimited as to time the likely relevant time frame would be the last 30 years when the issues with respect to allegations of physical and sexual abuse at Mount Cashel came into the public domain.  I therefore order that the Second Defendant respond to this Interrogatory insofar as it relates to the period from 1970 to 2000.

Interrogatory No. 26.

¶ 52      In this Interrogatory the Plaintiff asks whether any of the individual Brothers named in Interrogatory No. 21 have ever taught at a school operated by the Second Defendant. The Second Defendant responds that the question is irrelevant and does not relate to the issues before the Court.  While it is possible perhaps and even perhaps likely that such individuals may have taught at schools owned or operated by the Second Defendant the weight of such information in showing any degree of control of the Congregation and Mount Cashel by the Second Defendant is minuscule and that the effort required to respond to this question is oppressive to the Second Defendant relative to the weight or importance of the evidence to be gathered thereby.  I therefore direct that no further response to this Interrogatory is required of the Second Defendant.

Interrogatory No. 28.

¶ 53      In this Interrogatory the Plaintiff asks whether Brother A.E. DeLorenzo is presently or has he ever been an employee of the Second Defendant and if so what positions did he occupy and for what periods of time.  Apparently Brother DeLorenzo was, in the mid-1990s, the Archivist for the Congregation in the St. Patrick's Province Centre. Plaintiff's counsel contends that the answer to this question may be relevant to the degree of connection between the Second Defendant and the Congregation and if the position of Archivist was commonly occupied in both the Congregation and the Second Defendant this would allow the Plaintiff to ask more questions going to credibility.  The Second Defendant responds that the question is irrelevant and does not relate to the issues before the Court.

¶ 54      I am satisfied that the Second Defendant should at least answer as to whether or not there is a position of Archivist (or similar position) within the Second Defendant and whether Brother DeLorenzo has ever occupied that position and if so for what periods of time.  The question is one which can be very simply answered if confined to the decade from 1990 - 2000 which is the period which apparently interests the Plaintiff.  Obviously the person who is the Archivist and the holder of the records of the Second Defendant could be an important witness in this matter.  The Second Defendant is therefore ordered to answer this Interrogatory to the extent delineated above.

Interrogatory No. 30.

¶ 55      In this Interrogatory the Plaintiff asks what activities has the Second Defendant ever carried out which are separate and distinct from the activities from the Congregation or the St. Patrick's Province Centre.  The Second Respondent responded that all of the activities of the Second Defendant were separate and distinct from the activities of the Congregation and/or St. Patrick's Province Centre.  The Plaintiff objects to this answer on the basis that it is circular.  He states that obviously the Second Defendant and the Congregation were connected.  He suggests that if schools owned/operated by the Second Defendant were staffed and controlled by Brothers who were members of the Congregation this would demonstrate that the Second Defendant and the Congregation/Mount Cashel were not distinct and separate.

¶ 56      I am satisfied that it would be oppressive to the Second Defendant to have to answer this Interrogatory.  The activities of the Second Defendant and the Congregation may very well have been similar in the sense that both operated schools and taught children.  The similarity of the activity however does not mean that the activities of the Second Defendant and those of the Congregation are not separate and distinct.  In addition this Interrogatory is not limited as to time.  Given the amount of effort that would be required to analyze the full range of activities of the Second Defendant and the Congregation for a 94 year period and to determine whether they are separate and distinct from each other would be an impossible burden for the Second Defendant and I am not satisfied that the answer to this Interrogatory would in any way advance the objective of the Plaintiff in this matter, i.e. to establish that the Second Defendant controlled the Congregation and/or Mount Cashel and owned or managed Mount Cashel.  Therefore no further answer to this Interrogatory is required.

Interrogatory No. 31.

¶ 57      In paragraph 32 of the Affidavit of Brother Moffett filed in support of the application to have service of the statements of claim on the Second Defendant set aside, Brother Moffett deposed:

¶ 58      In Interrogatory No. 31 the Plaintiff asks what is the nature of the "business" of CBI and how was it different during the period 1940 - 1968.  In its answer to this Interrogatory the Second Defendant replies that paragraph 25 of the Affidavit of Brother Moffett answers this question. In paragraph 25 of his Affidavit Brother Moffett deposes that the purpose for which CBI was, and continues to be, formed was to establish and conduct elementary and secondary schools for boys in which instruction was, and continues to be, provided in the subjects generally taught in elementary and secondary schools in New York under and in compliance with all of the statutory provisions and rules of the New York State Commissioner of Education pursuant to s. 216 of the Education Law for the State of New York.  Plaintiff's counsel contends that the Interrogatory is only answered in part because it does not answer "how the business was different from 1940 - 1968".

¶ 59      I am satisfied that the answer to this Interrogatory is given in paragraph 25 of Brother Moffett's Affidavit as stated.  He clearly points out that the purpose for which the Second Defendant was and continues to be formed and established has been the same since its incorporation.  I therefore order that no further response to this Interrogatory is required of the Second Defendant.

Interrogatories Nos. 35 - 40.

¶ 60      These Interrogatories request information with respect to:

¶ 61      The answer of the Second Defendant with respect to each of these Interrogatories is that the question is irrelevant and does not relate to the issues before the Court.

¶ 62      Plaintiff's counsel says that the organizations referred to in these Interrogatories are Christian Brother related organizations and that the focus of the Interrogatories is on the connection between the Congregation and the Second Defendant and to explore whether the Congregation and the Second Defendant are in fact separated from each other.  The Second Defendant's counsel questions how it is relevant to whether the Second Defendant controlled Mount Cashel if there was some connection to some organization in Italy or Ireland 60 years ago.  He contends that it is irrelevant.

¶ 63      I am additionally satisfied that the extent of effort to answer these Interrogatories would be oppressive to the Second Defendant and I am not satisfied, unless some connection can be shown between those organizations and Mount Cashel, that the answers to these Interrogatories in any way can advance the Plaintiff's proposition that the Second Defendant controlled the Congregation and/or Mount Cashel.  I therefore order that no further answer to these Interrogatories is required.

Interrogatory No. 41.

¶ 64      In this Interrogatory the Plaintiff asks Brother Moffett, (in his capacity as President of the Second Defendant and as Province Leader of St. Patrick Province Centre) when and by what means he received a report entitled "Reaping the Whirlwind.  A Secret Report of the Executive of the Christian Brothers from 1903 - 1994" written by Brother Barry Coldry. The Interrogatory further requests a copy of this report.  The Second Defendant answers that this question is irrelevant and does not relate to the issues before the Court.  Plaintiff's counsel again indicates that the answer to this Interrogatory is necessary to explore the connection between the Second Defendant and the Congregation/Mount Cashel and he needs to know that report was received in order to establish such inter-connectivity.  He suggests that a great amount of historical information with respect to the Congregation is outside of the jurisdiction of this Court and in the hands of organizations such as the Second Defendant and that it is unfair for the Plaintiff to be placed in a position of being forced to accept a "believe me" type of response from the Second Defendant.  The Second Defendant's counsel responds that there is absolutely no connection between this Interrogatory and any issue being dealt with in these matters and that the Interrogatory is therefore irrelevant.

¶ 65      I am satisfied that from its very title, the report sought hints at an investigation by Bother Coldry into matters which may be relevant to the cases at hand.  It is a simple matter for the Second Defendant to answer this Interrogatory and it is not oppressive to it to be asked to do so given the possible relevance of the response to the matters at hand.  I therefore order that the Second Defendant answer this Interrogatory and provide a copy of the requested report of Brother Coldry if same is within its possession.

Other Relief Sought in the Present Application

¶ 66      In addition to the requested Order of the Court to direct full responses to the Interrogatories, the Plaintiff has sought:

¶ 67      On the hearing of this application argument with respect to the additional relief sought and set out in the above paragraph was deferred pending the Order of the Court with respect to the answers to the Interrogatories.  The sole exception was with respect to costs sought by the Plaintiff against the Second Defendant on this present application.  I am not prepared to order costs as against the Second Defendant on this application at this time.  It is yet to be decided by this Court that the Second Defendant is a proper defendant to these actions.  I am not satisfied that an award of costs against the Second Defendant at this stage would be either just or fair until that issue is determined.  Therefore no order as to costs against the Second Defendant with respect to this present application will be made at this time.

HALL J.

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