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John Doe v.
Roman Catholic Episcopal Corp. of St. John's Counsel:
INTERLOCUTORY APPLICATION (inter partes) HALL J.:— BACKGROUND TO ACTION ¶ 1 This is one of a series of applications dealing with Interrogatories and Discoveries related to the Second Defendant's application to have an Order for service ex juris against it dismissed. I will repeat in this decision a number of paragraphs from my earlier decision in this matter filed February 1, 2001 so that the background of this present application, and this decision, is intelligible without the need to refer any further to the earlier decision. ¶ 2 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. ¶ 3 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. ¶ 4 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. ¶ 5 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. ¶ 6 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 Plaintiff's application of July 21, 2000. Formal reasons for Judgment related to that Order were filed on August 29, 2000. ¶ 7 The Second Defendant forwarded to the Plaintiff certain Answers to the Interrogatories directed to be answered by it. Having reviewed those Answers, the Plaintiff filed a further Interlocutory Application requiring the Second Defendant inter alia to answer certain Interrogatories which it had refused to answer on various grounds, or had answered incompletely. The result of that application was my decision filed on February 1, 2001. ¶ 8 The Plaintiff now seeks an Order:
COSTS ¶ 9 The Plaintiff has sought costs on this present application, and an earlier application of May 4, 2001, which application was dismissed by Adams, J. of this Court with leave to apply for costs. It is the Plaintiff's contention that this present application, and the application of May 4th, would not have been necessary if the Second Defendant had responded to the Interrogatories as directed in my February 1, 2001 Judgment in a timely manner and in accordance with Rule 31.03(1) of the Rules of the Supreme Court, 1986 which require, in the absence of a specific time frame being ordered for Answers, that Interrogatories be answered with in 10 days. My decision of February 1, 2001 had not set a specific time for the answering of the Interrogatories and therefore, by default, under the Rules, the Answers had to be filed within 10 days of the Order. However, I am satisfied that a large number of the Interrogatories required considerable work on the part of the Second Defendant in order to place itself in a position to be able to answer. Many of the Interrogatories relate to matters of "history" within the affairs of the Second Defendant and would not, in my view, logically appear in current files of the Second Defendant. It is therefore reasonable to assume that some time would be necessary to compile the requested information. While counsel for the Second Defendant did not keep the Plaintiff's counsel adequately advised as to the progress being made in assembling the necessary information to answer the ordered Interrogatories, I am not satisfied that that omission, in and of itself, is sufficient to justify an award of costs on the May 4th application, or this present application, at this time. It must be remembered that 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, serves any salutary purpose such as inducing the Second Defendant to answer Interrogatories more expeditiously. The ball is still in the Plaintiff's court to ultimately demonstrate that the Second Defendant is, in fact, a proper defendant in these actions and it would be neither just, nor fair, to order costs immediately payable on any interim step in these proceedings in the absence of actions or inaction on the part of the Second Defendant clearly in disregard of the Orders of this Court. Therefore, no Order as to costs against the Second Defendant with respect to this application, or the application of May 4, 2001, will be made at this time. SUBSTANTIVE ISSUES WITH RESPECT TO INTERROGATORIES ¶ 10 Further to the previously alleged deficiencies in the Answers to the Interrogatories, the Plaintiff contends in this present application that deficiencies exist with respect to the following Answers to the following Interrogatories: Answer 2 [Interrogatory No. 4] ¶ 11 In Interrogatory No. 4 the Plaintiff sought disclosure by the Second Defendant of financial statements and other financial records related to transfers between it and the St. Patrick Province Centre for the period 1940 to 1968. The Second Defendant responded that it was not in possession or control of any such records. I had ordered that the Second Defendant make reasonable inquiries as to the existence of the requested records of all persons who may reasonably be expected to have had copies of them and to advise the Plaintiff, through a Supplemental Answer to Interrogatory No. 4, as to the nature and extent of the efforts made in making such inquiries and the results thereof. The Second Defendant responded:
Plaintiff's counsel argues that he cannot determine from Answer 2 whether in fact reasonable inquiries were made. He contends that the Second Defendant should state in Answer 2 what efforts were made and should list the inquiries made, and of whom they were made, and the details of the responses. ¶ 12 I agree with Plaintiff's counsel in this regard and the Second Defendant is ordered to advise the Plaintiff, through a Supplemental Answer to Interrogatory No. 4, of the nature and extent of the efforts made in such inquiries, and the results thereof including, but not limited to:
Answers 5 and 6 [Interrogatories No. 8 and 9] ¶ 13 In these two Interrogatories the Plaintiff had asked by whom, when and by what process James B. Moffett and Brian Walsh were elected to the Board of Directors of the Second Defendant. The Second Defendant answered giving specific dates of election and stating that Moffett and Walsh were elected to the Board by the then current board members, but that there were no corporate minutes, resolutions or other indicia of that election and that the Second Defendant was not in possession or control of any such records. The Answers do not indicate why there are no such records. It may simply be that the records were never kept, were lost, or have been deliberately destroyed for some reason. Given that the named individuals were only elected to the Board of Directors in 1993, it should not be difficult for the Second Defendant to answer why there are no such records. I therefore order that the Second Defendant provide a Supplemental Answer to Interrogatories 8 and 9 stating the reasons why there are no such records, and if the Answer indicates that the requested records have been destroyed, the Supplemental Answer shall state the rationale for the destruction of those records. Answer 7 [Interrogatory No. 9 and 11] ¶ 14 In this Interrogatory the Plaintiff sought information as to what persons had served on the Board of Directors of the Second Defendant. I ordered that the Defendant need answer that Interrogatory, not for the whole period of its existence from 1906 onward, but only for the period relevant to the present actions, namely 1940 to the year 2000. In answering this Interrogatory, the Second Defendant has provided two different lists to the Plaintiff. The second list contained additional names, alternate spellings of certain names and, possibly, different persons altogether than those contained on the first list. The Second Defendant's counsel indicates that to his information the second list filed is the final and complete one. Plaintiff's counsel argues that a Supplemental Answer to this Interrogatory, to this effect, ought to be provided. I agree. It is therefore ordered that the Second Defendant shall file a Supplemental Answer to Interrogatory No. 11 clarifying with finality who were the members of the Board of Directors of the Second Defendant from 1940 to 2000 inclusive. Answer 11 [Interrogatory No. 25] ¶ 15 This Interrogatory had inquired whether the Second Defendant had ever had discussions or had sent, received, or exchanged any correspondence, facsimile, e-mails, memos of the like with respect to 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. I ordered that this Interrogatory ought to be answered insofar as it related for the period 1970 to 2000. Brother Moffett, the designated official answering the Interrogatories on behalf of the Second Defendant, answered the Interrogatory but confined his Answer to communications with Brother Edmund Garvey and did not Answer the Interrogatory insofar as it related to "...any other member of the Council of the Congregation Centre..." In an affidavit in this matter filed August 13, 2001 counsel for the Second Defendant acknowledged that the Answer appeared to be limited to discussions and correspondence with Brother Garvey, whereas the question in the Interrogatory was broader. He deposed that it was not until he had received the present application that this issue had been brought to his attention. He further deposed that he had been advised that there is no "Council of the Congregation Centre" as referred to in Interrogatory No. 25. He further deposed that he was advised that Brother Garvey's Answer would be the same with respect to other members of the General Council and that a further affidavit or Supplementary Answer could be provided to clarify this. I therefore order that a Supplemental Answer to Interrogatory No. 25 be provided as indicated in the affidavit of the Second Defendant's counsel. Answer 12 [Interrogatory No. 28] ¶ 16 In this Interrogatory the Plaintiff asked whether a certain Brother A. E. DeLorenzo was an employee of the Second Defendant and asked about his employment and other information. I ordered that the Second Defendant should answer the Interrogatory as to whether or not there was a position of archivist (or similar position) within the Second Defendant and whether Brother DeLorenzo ever occupied that position and for what periods of time. I further ordered that it should be confined to the period 1990 to 2000. I stated in my Judgment that:
The Second Defendant, in answer to this Interrogatory, simply stated that Brother A. E. DeLorenzo is not the archivist of the Second Defendant. Plaintiff's counsel complains that this Answer only partly addresses the Interrogatory and that it does not say whether there was a position of archivist and who occupied that position. Second Defendant's counsel has indicated orally, at the hearing of this present application, that there is not, in fact, a position of archivist. It is therefore ordered that a Supplemental Answer to this Interrogatory to this effect is to be filed. ¶ 17 The Plaintiff has additionally argued that generally the Answers to the Interrogatories are deficient and not in compliance with Rule 31 of the Rules of Court, 1986. He makes no specific allegations in this regard and, in the absence of specific allegations, no further Order is appropriate. ¶ 18 The Second Defendant's counsel has indicated that since the filing of the most recent Supplemental Answer to the Interrogatories, Brother Moffett, who was the designated official to Answer the Interrogatories, has left on sabbatical and his position of president has been assumed, on an acting basis, by Brother Brian Walsh. There will, apparently, be some difficulty in contacting Brother Moffett and I therefore order that any Supplemental Answers to the Interrogatories, except insofar as same must ,obviously, be answered by Brother Moffett, may be answered by Brother Walsh. Other Relief Sought and this Present Application ¶ 19 The Plaintiff also seeks an Order that Brother Moffett be made available to be discovered. That application has been withdrawn by the Plaintiff until such time as the Supplemental Answers to the Interrogatories sought in this present application are provided. ¶ 20 In preceding applications, the Plaintiff had requested an Order for Interrogatories directed to one Sgt. Mark Wall of the Royal Newfoundland Constabulary, a Brother Ronald Justin Lasik, and a Brother Thomas Cuthbert Ford. The form of Interrogatories were attached as Schedules to an Interlocutory Application of the Plaintiff dated October 26, 2000. Interrogatories of Sgt. Mark Wall ¶ 21 The form of Interrogatories sought had included a paragraph 2 which required Sgt. Wall to provide certain correspondence. It would obviously be very onerous for Sgt. Wall to answer, and paragraph 2 of the Interrogatories will be deleted by the Plaintiff. Leave is therefore granted to the Plaintiff to serve Interrogatories on Sgt. Mark Wall of the Royal Newfoundland Constabulary in the form attached to the Plaintiff's Interlocutory Application of October 26, 2000 deleting therefrom Interrogatory No. 2. In the absence of an Order of the Court, this Interrogatory is to be answered within 30 days of its service on Sgt. Wall. Interrogatories of Ronald Justin Lasik ¶ 22 Ronald Justin Lasik is presently a prisoner in a federal penitentiary. His exact location is not yet known to the Plaintiff, but it is outside of Newfoundland. The Plaintiff seeks an Order for Interrogatories in the form attached to its October 26, 2000 application and an Order for service ex juris of those Interrogatories. Interrogatory No. 2 requests Brother Lasik to identify every school at which he has taught, the dates he began teaching and ceased teaching at each and who was his employer at that school. I have ordered that this Interrogatory is irrelevant. Leave, however, is granted to the Plaintiff to issue Interrogatories directed to Ronald Justin Lasik in the form attached to the Plaintiff's Interlocutory Application dated October 26, 2001 deleting therefrom Interrogatory No. 2 and that leave is granted for the said Interrogatories to be served ex juris. In the absence of an Order of the Court, this Interrogatory is to be answered within 30 days of its service on Brother Lasik. Interrogatories of Thomas Cuthbert Ford ¶ 23 The same form of Interrogatories as are addressed to Brother Lasik are also addressed to Brother Ford. It is not known with certainty whether Brother Ford is still a member of the Order of Christian Brothers and his present address is unknown to the Plaintiff. Second Defendant's counsel indicates that if Brother Ford is still a member of the Congregation, his address is likely to be known to Brother Brian Walsh. It was agreed by counsel that the Interrogatories could be served upon Brother Walsh, and would be deemed to have been served on Brother Ford within 14 days of their service upon Brother Walsh, unless Brother Walsh shall file an affidavit with this Court to the effect that Brother Ford is no longer a member of the Congregation of Christian Brothers. Because Brother Walsh resides outside of Newfoundland, leave is given for service ex juris of the Interrogatories directed to Brother Ford upon Brother Walsh, and it is further ordered that Answers to the said Interrogatories shall be provided within 30 days of the deemed or actual service of the said Interrogatories on Brother Ford, whichever is the lesser. HALL J. * * * * *
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