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John Doe (G.E.B. #36) v. Roman Catholic Episcopal Corp. of St
John's

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

[2003] N.J. No. 235
2003 NLSCTD 137
Docket: 1999 01T 3234

Newfoundland and Labrador Supreme Court - Trial Division
Adams J.

Judgment: filed October 7, 2003.
(34 paras.)

   Practice — Service — Service of notice, writ or statement of claim out of jurisdiction — Setting aside service or order for service ex juris, evidence — Evidence — Affidavits, use of — Cross-examination of deponent.

   Application by the plaintiff, Doe, for an order allowing him to cross-examine a deponent from outside of the jurisdiction. Doe applied to set aside an ex parte order for service ex juris.  He had brought an application against the defendant Christian Brothers Institute for damages for sexual and physical assault.  Christian Brothers was a foreign corporation and was served ex juris.  It filed an application by its president in support of its application to set aside the service.  The Christian Brothers argued that the court did not have jurisdiction over it.

   HELD:  Application allowed.  The application to vacate the order was not deemed to be a submission to the court.  The court had jurisdiction to permit the cross-examination of an affiant in these circumstances.

Statutes, Regulations and Rules Cited:

   Judicature Act, R.S.N. 1990, c. J-4, ss. 54, 55.
   Newfoundland Rules of the Supreme Court, 1986, Rules 6.07, 10.05, 10.05(1)(c), 29.01, 29.01(1)(b), 29.02, 29.09, 29.09(1)(a), 29.09(1)(c), 29.10, 29.10(g), 48.05, 48.10, 48.10(c).
   Statutes and Subordinate Legislation Act, R.S.N. 1990, c. S-27.

Cases cited:

Province of Newfoundland v. Churchill Falls (Labrador) Corporation Limited and Quebec Hydro Electric Commission (1977) 13 Nfld. & P.E.I.R. 421 (Nfld. Sup. Ct., Trial Division), (1978) 15 Nfld. & P.E.I.R. 77 (Nfld. C.A.).
Beanland v. Beanland (1997) 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.) and Dr. Livingstone, I Presume (Canada).
Limited v. Jesso, et al. (1995) 137 Nfld. & P.E.I.R. 111 (Nfld. Sup. Ct., Trial Division).

Counsel:

Geoffrey E. Budden, for the plaintiff.
J. David Eaton, Q.C., for the second defendant.

       ADAMS J.:—

INTRODUCTION

 1      This is an application (the "application") seeking leave to cross-examine a deponent on his affidavit filed in an inter partes interlocutory application to vacate an order for service ex juris.

BACKGROUND

 2      The plaintiff is one of a group of approximately 40 other former residents of the former Mount Cashel Orphanage whose cases are being heard together who have commenced action for damages arising out of alleged sexual and physical assaults during the 1940's and 50's.  The action was commenced against the Roman Catholic Episcopal Corporation of St. John's (the "RCEC") and a corporation called The Christian Brothers Institute Inc. ("CBI").  The RCEC took no part in this application although it was served with it.

 3      CBI is a corporation organized and existing under the laws of the State of New York, United States of America. The Statement of Claim was issued in 1999.  On 3 March 2000, Hickman C.J. (retired) of this Court allowed an ex parte application for an order permitting CBI to be served out of the jurisdiction in New York.  The plaintiff had the Statement of Claim served on CBI in that jurisdiction.

 4      CBI filed an application on 12 April 2000 to have the ex juris service and order set aside (the "main application").  That application was supported by an affidavit of James B. Moffett.  Mr. Moffett is a member of the Congregation of the Brothers of the Christian Schools of Ireland (the "Christian Brothers") and the Province Leader of the St. Patrick's Province Centre of the Christian Brothers located in New Rochelle, New York.  He is also the President of CBI.  The main application to vacate the order for service ex juris is set to be heard commencing 8 December 2003.

 5      The present application is preliminary to that main application.  In it the plaintiff seeks an order requiring James B. Moffett to attend at the main application in order to be cross-examined on his affidavit.  The application is resisted by CBI.

POSITION OF THE PARTIES

 6      Both parties agree that there is no absolute right to cross-examine a deponent on his affidavit.  However, it is within the discretionary power of the Court to allow cross-examination of a deponent in appropriate circumstances.

 7      Counsel for CBI submits that the Court lacks jurisdiction to order Brother Moffett to appear for cross-examination as CBI is a non-resident corporation and Brother Moffett is a non-resident individual who simply is speaking in behalf of the corporation as it obviously cannot speak except through its corporate officers.  CBI does not acknowledge the jurisdiction of the Court to hear or decide the issues in the Statement of Claim allegedly involving CBI. It also denies any jurisdiction in the Court or me as a judge of the Court to order Brother Moffett to appear for cross-examination on his affidavit.  Counsel says that any such order which purports to do so would be indirectly forcing CBI to be bound by the jurisdiction of this Court and a tacit recognition of authority over it which the corporation denies.

 8      The plaintiff submits that he ought to be entitled to cross-examine the deponent to test the credibility of his assertions of fact in his affidavit, some of which are contested by the plaintiff.  He says that failure to seek cross-examination may be taken as an admission by the plaintiff of the veracity of Brother Moffett's factual assertions.

ISSUE

 9      Does the court have the jurisdiction to order cross-examination of a non-resident deponent in an application to vacate an ex juris order and service?  If the answer is yes, is this a case where the court should exercise its discretion to allow cross-examination?

RULES OF COURT

 10      The following Rules of Court are relevant to this application:

6.07. (2) The Court may, upon an application under rule 6.07(1) supported by affidavit or other evidence stating that in the belief of the deponent the plaintiff has a good cause of action and showing in what place or country the defendant is or probably may be found, order that the originating document be served on the defendant in such place or country and make such other order as it thinks fit.

10.05. (1) A defendant may, at any time before filing a defence or appearing on an application, apply to the Court for an order

...

(c)

setting aside any order giving leave to serve the originating document on the defendant elsewhere than in the province;

          (2)  The application to the Court for an order referred to in rule 10.05(1) shall not be deemed to be a submission to the jurisdiction of the Court.

29.01. (1) Unless the Court otherwise orders, an application in a proceeding commenced by an originating application (inter partes) or an originating application (ex parte) or an interlocutory application in a proceeding, shall be heard by

(b)

a judge sitting in chambers.

29.02. (1) An application shall set forth with sufficient particularity the nature of any claim being made or of any question sought to be determined, and of any relief or order claimed, and have attached thereto a true copy of any affidavit to be used in support of the application, but it shall not be necessary to claim for general or other relief or for costs.

29.09.

(1) Evidence on a hearing may be given

(a)

by an affidavit or statutory declaration made pursuant to Rule 48;

...

(c)

with leave of the Court, by any witness in person;

            (2) Where there is or may be a dispute on a hearing as to the facts, the Court may, before or on the hearing, order that the application shall be heard on oral evidence, either alone or with any other form of evidence, and may give such other directions relating to any pre-hearing procedure and the conduct of the applications as it considers just.

29.10. (1) On a hearing of an application, the Court may on such terms as it thinks just,

...

(g)

exercise such jurisdiction and grant any other order as it deems just.

48.05. (1) An affidavit may be made on behalf of a body corporate or association by an officer, servant or agent thereof.

48.10.  The deponent of an affidavit to be used on a trial or hearing may be cross-examined and re-examined on

...

(c)

a hearing, under rule 29.09(1)(c).

ANALYSIS

 11      CBI has taken an application pursuant to Rule 10.05(1)(c) to have the Court vacate the order for service ex juris issued by Hickman C.J.  Rule 10.05(2) states that such an application shall not be deemed to be a submission to the jurisdiction of the Court.  Counsel submits that these rules are procedural only and do not confer any jurisdiction on the Court.

 12      The Rules of Court are subordinate legislation passed pursuant to Sections 54 and 55 of the Judicature Act, R.S.N. 1990, c. J-4 and are effective as such under the Statutes and Subordinate Legislation Act, R.S.N. 1990, c. S-27.  Section 55(1)(h) of the Judicature Act states that the Rules Committee may make rules:

       55. (1) Each rules committee may make rules

...

(h)

providing for the service of documents out of the jurisdiction of the court;

 13      The Judicature Act and the Rules of Court clearly provide the jurisdiction to make orders for service ex juris on non-resident defendants.  Non-resident defendants may make an application, supported by an affidavit, to have the ex juris service and order set aside.  Once a non-resident defendant has chosen to challenge the jurisdiction of the Court by way of an application pursuant to Rule 10.05 to vacate the order for service ex juris it has engaged the Court in a review of an earlier order of the Court as a Statement of Claim against a non-resident defendant may not be issued and served without an order of the Court.

 14      The application to vacate the earlier order is not an appeal.  It is a review of the earlier order and must be determined on all of the evidence both from the earlier ex parte application and any new evidence introduced on the application to vacate in order to determine whether grounds existed upon which the order for service ex juris could have been issued in the first place.  By its very nature, an application for the issuance and service of a Statement of Claim outside the jurisdiction must be made ex parte.  A non-resident defendant may then engage the plaintiff and the Court in an inter partes application to debate the propriety of the earlier ex parte order.

 15      This was the case in Province of Newfoundland v. Churchill Falls (Labrador) Corporation Limited and Quebec Hydro Electric Commission (1978) 15 Nfld. & P.E.I.R. 77 (Nfld. C.A.).  In that case, the Province of Newfoundland sought a declaratory judgment that the Government of Newfoundland was entitled to recall a certain quantity of electrically generated power which was being sold to Hydro Quebec pursuant to a contract entered into in 1969.  Hydro Quebec challenged the jurisdiction of this Court to hear the matter and sought to have the ex parte order for service ex juris varied.  The Court held that, prior to filing an appearance (as was then required under the Rules; a defence under the present rules) the only avenue open to a non-resident defendant was to take an application to vacate the order for service ex juris pursuant to Order 12, Rule 13 (the equivalent now being ruled 10.05).

 16      An issue arose as to whether the Chambers judge should have allowed cross-examination of the provincial Attorney General on his affidavit filed in support of the ex parte order for service ex juris granted by Mifflin C.J.  The learned Chambers judge did not allow cross-examination on the affidavit, finding the nature of the cross-examination sought would too closely approach the merits of the main action and was not necessary on the preliminary issue as to whether the ex juris order should have been granted.  The Court of Appeal upheld the Chambers judge's decision to not allow cross-examination on this affidavit while upholding the judge's discretionary power generally to allow such cross-examination in appropriate circumstances.

 17      Counsel for CBI seeks to distinguish the Churchill Falls case on the basis that it dealt only with the right to cross-examine an affiant who filed an affidavit on the original ex parte application for an order for service ex juris.  In other words, counsel submits, the case should be restricted as authority for the recognition of a discretionary power to grant cross-examination by the non-resident defendant of an affidavit filed by the plaintiff in the original ex parte application but not by the plaintiff in respect of an affidavit filed by a non-resident defendant in an application to vacate the original order.  Counsel submits that to do the latter would be to indirectly force the non-resident defendant to submit to the jurisdiction of the Court which it has challenged.  I do not agree that the Churchill Falls case should be so distinguished.

 18      At paragraph 15 of the Court of Appeal decision in the Churchill Falls case, supra, Gushue J.A. stated:

The motion to discharge is a review of an ex parte order which is an extension of the normal right of review because it provides for such before appearance by the defendant. It is perhaps more usual for the judge who granted the ex parte order in the first instance to hear the inter partes motion to strike out (although there is certainly nothing improper with another judge hearing it), and in my view he is still exercising his discretion on the basis of the evidence submitted by both parties as to whether he will allow the earlier order to stand.  It is thus not an appeal, but an extension or review of the first application and in my view the judge can order cross-examination if he deems it necessary.

 19      Justice Gushue did not restrict this comment only to affidavits filed by a plaintiff on the ex parte application although that was the factual issue giving rise to the comment.  The Court upheld the decision of the Chambers judge (Goodridge J.) that he had the discretionary power to allow cross-examination of a deponent filing an affidavit.

 20      It is instructive at this juncture to actually review what Goodridge J. stated in his decision in Chambers in this regard.  His decision is reported at (1977) 13 Nfld. & P.E.I.R. 421.  At paragraphs 47 to 52 Goodridge J. stated:

The affidavit of Mr. Hickman was presented in support of an application made ex parte for an order for service out of the jurisdiction.  That application was heard, the order was granted and the matter is at an end.

The second defendant now proposes to move for an order to discharge that order.  It is a new motion, a new hearing, and not a continuation of the original application.

In the hearing of the motion, the second defendant may, and probably should, present evidence by affidavit showing why the order should be discharged.  The deponent in such affidavit may be cross-examined.  In answer to the motion the plaintiff may rely on a fresh affidavit, or several fresh affidavits, using or ignoring the original affidavit, as it chooses, but the deponent in any affidavit on which the plaintiff relies may be cross-examined.

As the motion to discharge the order has not yet been made and as I do not know at this point whether or not the plaintiff intends to rely on the affidavit of Mr. Hickman in opposition to the motion, I cannot at this point make the order sought that Mr. Hickman be examined on his affidavit.

In Strauss v. Goldschmidt (1891-92), 8 T.L.R. 239, the court, while refusing an application to cross-examine, said that it would make such an order where necessary. However, in that case the defendants gave notice that they would be relying on an earlier affidavit in support of their motion to discharge an order for service ex juris and the deponent thereby became subject to cross-examination.
There is no doubt that a deponent may be cross-examined
if his affidavit is being used to support or oppose an
application, but not otherwise.
                                                      [Emphasis added.]

 21      I am satisfied that a fair reading of these paragraphs (which were not criticized in any way in the Court of Appeal decision) supports the proposition that the Court has jurisdiction to allow cross-examination of an affiant who files an affidavit in support of an inter partes application to vacate an ex parte order for service ex juris. Having chosen to rely on an affidavit from a non-resident in support of its application, I am satisfied that it is not open to CBI to now argue that the Court lacks jurisdiction to order cross-examination of the affiant in that affidavit.

 22      However, having determined that I have the jurisdiction to allow cross-examination of Brother Moffett on his affidavit, there remains the question of whether I should exercise my discretion in this case.  The test to be applied on the consideration of this question was not in dispute.  It was stated by our Court of Appeal in Beanland v. Beanland (1997) 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.) at paragraph 34 where Green J.A. (as he then was) stated:

Even this "right" to cross-examine on affidavits is subject to the discretion of the court.  See rules 48.10(c) and 29.09(1)(c).  Generally, however, the court will permit such cross-examination where it is necessary to challenge facts deposed to by the deponent or to elicit additional relevant evidence amplifying or qualifying the affidavit material which might be solely within the knowledge of the deponent.

 23      Failure to seek an opportunity to cross-examine an affiant on his affidavit may amount to a virtual admission that the assertions of fact in the affidavit are correct:  Dr. Livingstone, I Presume (Canada) Limited v. Jesso, et al. (1995) 137 Nfld. & P.E.I.R. 111, paragraphs 36 - 38.

 24      In this case, the plaintiff has sought to cross-examine the affiant, Brother Moffett.  He alleges that there are a number of factual assertions made by Brother Moffett in his affidavit which are at odds with other information in the knowledge of the plaintiff or which do not agree with statements made by other persons purportedly speaking for CBI on the same subject.

 25      For example, counsel says, in his affidavit Brother Moffett states at paragraph 26 that

"The operations of the corporation have always been and continues (sic) to be limited to the State of New York."

Yet in the next sentence in paragraph 26, he states:

The Certificate of Incorporation clearly states "The
territory in which the operations of this corporation are
to be principally conducted is the State of New York"... [Emphasis added.]

 26      Counsel for the plaintiff submits that this apparent contradiction needs to be amplified or explained as it appears that CBI has the authority to operate outside New York.  This is particularly important, contends counsel, when one compares this statement with a letter dated 3 August 1960 (a time relevant to these proceedings) attached as an exhibit to the evidence on examination for discovery in this matter of Brother J.P. Darcy, a former Vice-Provincial for Canada of the Christian Brothers, held on 27 and 28 March, 2003.  That letter states:

"Dear Sir:

       This is to authorize Brother Wayne G. McIntyre, the Superior of the new St. Thomas More School in Burnaby which is owned and operated by the Christian Brothers Institute to transact business in the name of the said Christian Brothers Institute.

       Accordingly we authorize him on behalf of the above-mentioned school of the said Institute to operate the bank account, to borrow money from the bank and to sign all notes relative to these transactions."

 27      Counsel for the plaintiff submits that this letter clearly indicates that CBI purports to conduct business, owns property, and exercises considerable control over it, all outside the State of New York.  It also implies, says counsel, a very close connection between CBI and the Christian Brothers, a circumstance which the plaintiff relies on to demonstrate that CBI is really the alter ego or the temporal embodiment of the Christian Brothers who operated Mount Cashel Orphanage.

 28      As well, at paragraph 27 of his affidavit, Brother Moffett states:

CBI is not a Papal Institution and therefore is not recognized by the Holy See.  It is a separate and distinct organization from that of the Congregation.  The Congregation is a society of religious lay men that exists at the pleasure of the Holy See in accordance with its approved Constitutions, while CBI is a not-for-profit corporation existing under the laws of the State of New York.

 29      However, in his evidence on examination for discovery on 27 March 2003, Brother Darcy stated at page 38:

"Q.

[Q. No. 897]  What independent life, if any, to your knowledge, did the Christian Brothers Institute Inc. have from the Province?  A. [A. No. 897] Well, it wouldn't have any.  If you turned around, the other way around.  I would describe it like a carpenter using a hammer.  A hammer has no life apart from the carpenter but the carpenter has plenty without the hammer."

 30      Counsel for the plaintiff says that since Brother Darcy was a former Vice-Provincial for Canada, this apparent conflict between his sworn testimony and the affidavit of Brother Moffett needs to be further explained.  Counsel says that these are but two examples of where he submits it is "...necessary to challenge facts deposed to by the deponent or to elicit additional relevant evidence amplifying or qualifying the affidavit material which might be solely within the knowledge of the deponent," as explained in Beanland, supra.  On this basis, he asserts that I should exercise my discretion to allow cross-examination of Brother Moffett on his affidavit at the hearing on CBI's application to vacate the application for service ex juris.

 31      Without in any way passing comment on the importance or materiality of any such alleged contradictions or, indeed, that the alleged statements and documents are contradictory, I am satisfied that the plaintiff has met the test for the exercise of my discretion to allow Brother Moffett to be cross-examined on his affidavit.

CONCLUSION

 32      I order that James B. Moffett attend at the hearing of the application by CBI to vacate the order for ex juris issuance and service of the Statement of Claim in the within action set to commence on 8 December 2003 at St. John's.  Counsel for the plaintiff shall advise counsel for CBI as to the approximate timing of the plan to cross-examine Brother Moffett and the approximate length of time he anticipates it may take as the hearing is set for two weeks and it may not be necessary for him to be here for the entire time.

 33      For the sake of clarity, although not strictly necessary in my view, I declare that the attendance by Brother Moffett at the hearing and any cross-examination of him will not constitute submission by CBI to the jurisdiction of this Court in respect of the within action.

 34      I reserve my decision on costs of this application to be determined at a later time.  Either party may apply.

ADAMS J.

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