Tower v. Foulkes, (2015) 436 N.B.R.(2d) 325 (CA)

• Judge: Drapeau, C.J.N.B., Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 10, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 436 N.B.R.(2d) 325 (CA);2015 NBCA 29

Tower v. Foulkes (2015), 436 N.B.R.(2d) 325 (CA);

    436 R.N.-B.(2e) 325; 1139 A.P.R. 325

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. MY.004

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MY.004

Dustin Tower (appellant) v. Justin Foulkes and Stacy L. Foulkes (respondents)

(59-14-CA; 2015 NBCA 29)

Indexed As: Tower v. Foulkes

Répertorié: Tower v. Foulkes

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Deschênes and Richard, JJ.A.

May 7, 2015.

Summary:

Résumé:

At issue on this appeal and cross-appeal was: (1) the test to be applied on motions for production of documents in the possession or control of non-parties; (2) whether, in an action for damages arising from a motor vehicle accident, the court could, without a statutory grant of authority, order the plaintiff to produce files compiled by or on behalf of the Section B (no-fault) insurer; and (3) whether a defendant's duty to deliver an Affidavit of Documents could be discharged by an affidavit from an agent of that defendant's motor vehicle liability insurer.

The New Brunswick Court of Appeal allowed the appeal and allowed the cross-appeal in part on terms. The court awarded the plaintiff costs throughout, set at the global sum of $3,500. The court (1) reaffirmed the "enforceable right" test it had adopted in Paul v. Reilly (2006); and held that the answer to the questions (2) and (3) was no.

Practice - Topic 4572

Discovery - What documents must be produced - Documents in possession, power or control of a party - At issue on this appeal was, inter alia, whether the court could order the plaintiff to produce files compiled by or on behalf of the Section B (no-fault) insurer - Section 4.9 of the Personal Information Protection and Electronic Documents Act (PIPEDA) stated that "Upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate." - The New Brunswick Court of Appeal held that the issue of the application of s. 4.9 to a plaintiff's control over a Section B file was not properly before it - Therefore, the question of plaintiff's control over the Section B file stood to be determined on common law principles - Nevertheless, the court stated that "[e]ven if one assumes, for the sake of argument, that the statute has application to Section B insurers in the context of an action for personal injuries against a third party, it remains very much open to debate whether it was intended to and does actually expand discovery-related rights and obligations." - The court set out a list of factors that any future debate and decision on point should touch upon - See paragraphs 38 and 39.

Practice - Topic 4572

Discovery - What documents must be produced - Documents in possession, power or control of a party - Tower was injured when the motor vehicle in which he was a passenger left the roadway - The vehicle was owned by Stacy Foulkes, operated by her son Justin and insured by United General Insurance ("United") - Tower received Section B benefits under the United policy - Tower contended that a motion judge erred in ordering him to provide the Foulkes with a copy of the Section B insurer's file - He contended that he neither had possession of, nor an enforceable right to a copy of the Section B file - The New Brunswick Court of Appeal held that in an action for damages arising from a motor vehicle accident, the court could not, without a statutory grant of authority, order the plaintiff to produce files compiled by or on behalf of the Section B (no-fault) insurer - Tower did not have an enforceable right at common law to obtain the Section B file or a copy thereof - The order requiring him to produce "the Section B file" was made without jurisdiction, and had to be set aside - See paragraphs 2 and 35 to 42.

Practice - Topic 4572

Discovery - What documents must be produced - Documents in possession, power or control of a party - Tower was injured when the motor vehicle in which he was a passenger left the roadway - Tower contended that a motion judge erred in ordering him to provide copies of his "medical records" - He submitted that the order should be set aside on grounds of vagueness and uncertainty because he did not know what documents were captured by the quoted expression - The New Brunswick Court of Appeal found that, in context, it was at a loss to understand what documents were captured by the reference to "medical records" - Therefore, the order had to be set aside - See paragraphs 43 to 50.

Practice - Topic 4631

Discovery - Affidavit or list of documents - General - The New Brunswick Court of Appeal stated that "The disagreements underlying the present appeal stem from a failure to abide by elementary principles, all of which have been longstanding features of the Province's procedural landscape: absent a dispensation order, compliance with the Rules of Court is not optional and Affidavits of Documents stand to be made by the parties ; all relevant documents, whether privileged or not, must be disclosed therein; production orders must adequately identify the targeted documents with a view to eliminating any uncertainty over compliance; and parties cannot be ordered to produce documents that are not in their possession or control." - See paragraph 1.

Practice - Topic 4631

Discovery - Affidavit or list of documents - General - [See Practice - Topic 4633 ].

Practice - Topic 4633

Discovery - Documents - Affidavit of documents - Duty of solicitor of party required to make affidavit of documents - The New Brunswick Court of Appeal reviewed the obligations of parties and solicitors under rule 31.03 of the Rules of Court regarding the making of an Affidavit of Documents - See paragraphs 51 to 63.

Practice - Topic 4635

Discovery - Affidavit or list of documents - Duty respecting documents in party's possession, power or control - Tower was injured when the motor vehicle in which he was a passenger left the roadway - The vehicle was owned by Stacy Foulkes, operated by her son Justin and insured by United General Insurance ("United") - Tower received Section B benefits under the United policy - In his Affidavit of Documents, Jason referenced in Schedule D (i.e., documents in the possession or control of non-parties) "all documents reflected in Affidavit of Janice Rickard, claims manager, United General Insurance, dated April 4, 2012" - Stacy's Affidavit of Documents essentially replicated Jason's - The Foulkes contended that a motion judge erred in ordering them to provide Affidavits of Documents containing the documents listed in Rickard's affidavit - They argued that Rickard's affidavit was made by "the person with the personal knowledge over the creation and origin of the documents" and that it would be improper to swear an Affidavit of Documents with claims of privilege that were foreign to them - The New Brunswick Court of Appeal held that the motion judge did not err - The procedure followed by the Foulkes constituted a major and unwarranted departure from the requirements in rule 31 of the Rules of Court - A defendant's duty to deliver an Affidavit of Documents could not be discharged by an affidavit from an agent of that defendant's motor vehicle liability insurer - See paragraphs 2 and 51 to 63.

Trade Regulation - Topic 9404

Protection of personal information and electronic documents - General - Application and interpretation of legislation (e.g., Personal Information Protection & Electronic Documents Act) - [See first Practice - Topic 4572 ].

Procédure - Cote 4572

Enquête préalable - Documents à produire - Documents en possession ou sous le contrôle d'une partie - [Voir Practice - Topic 4572 ].

Procédure - Cote 4631

Enquête préalable - Affidavit ou liste de documents - Généralités - [Voir Practice - Topic 4631 ].

Procédure - Cote 4633

Enquête préalable - Affidavit ou liste de documents - Devoir de l'avocat de la partie tenue de faire un affidavit - [Voir Practice - Topic 4633 ].

Procédure - Cote 4635

Enquête préalable - Affidavit ou liste de documents - Devoir concernant les documents en la possession ou sous le contrôle d'une partie - [Voir Practice - Topic 4635 ].

Réglementation du commerce - Cote 9404

Protection des renseignements personnels et les documents électroniques - Généralités - Application et interprétation de la loi (Loi sur la protection des renseignements personnels et les documents électroniques) - [Voir Trade Regulation - Topic 9404 ].

Cases Noticed:

Paul v. Reilly - see/voir Reilly v. Paul.

Reilly v. Paul (2006), 305 N.B.R.(2d) 146; 791 A.P.R. 146; 2006 NBCA 84, affd. [para. 2].

Clark v. Collicott (2013), 400 N.B.R.(2d) 279; 1038 A.P.R. 279 (T.D.), dist. [para. 37].

Rumble v. Sobeys Inc. (2014), 429 N.B.R.(2d) 307; 1119 A.P.R. 307; 2014 NBCA 72, refd to. [para. 37].

State Farm Mutual Automobile Insurance Co. v. Privacy Commissioner (Can.) et al. (2010), 376 F.T.R. 59; 2010 FC 736, refd to. [para. 39].

Veno v. United General Insurance Corp. (2008), 330 N.B.R.(2d) 237; 845 A.P.R. 237; 2008 NBCA 39, refd to. [para. 45].

Ouellet (Janel) Design Inc. v. Desbiens (1998), 207 N.B.R.(2d) 128; 529 A.P.R. 128 (C.A.), consd. [para. 54].

Imperial Oil v. Jacques et al. (2014), 463 N.R. 170; 2014 SCC 66, refd to. [para. 55].

Whelton v. Mercier et al. (2004), 277 N.B.R.(2d) 251; 727 A.P.R. 251; 2004 NBCA 83, refd to. [para. 55].

Forest Protection Ltd. et al. v. Bayer AG et al. (1998), 207 N.B.R.(2d) 50; 529 A.P.R. 50; 46 C.P.C.(4th) 52 (C.A.), refd to. [para. 55].

Delta Electric Co. v. Aetna Casualty Co. of Canada, Taylor Contracting Ltd. and Morden & Helwig Ltd. (1984), 53 N.B.R.(2d) 406; 138 A.P.R. 406 (T.D.), refd to. [para. 62].

Woods v. Martins Bank, Ltd. and Another, [1958] 3 All E.R. 166, refd to. [para. 62].

Statutes Noticed:

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, Sch. 1, sect. 4.9 [para. 38].

Rules of Court (N.B.), rule 31.03 [para. 24 et seq.].

Authors and Works Noticed:

Abrams, Linda, and McGuinness, Kevin Patrick, Canadian Civil Procedure Law (2nd Ed. 2010), generally [para. 61]; para. 13.20 [para. 62].

Cudmore, Gordon, Choate on Discovery (2nd Ed. 2004) (2011 Looseleaf Update, Release 7), Ch. 3, p. 65 [para. 62].

Williston, W.B., and Rolls, R.J., The Law of Civil Procedure (1970), vol. 2, p. 892 [para. 62].

Counsel:

Avocats:

George A. McAllister, Q.C., for the appellant;

Monika M.L. Zauhar and Ryan P. Burgoyne, for the respondents.

This appeal and cross-appeal were heard on February 10, 2015, by Drapeau, C.J.N.B., Deschênes and Richard, JJ.A., of the New Brunswick Court of Appeal. Drapeau, C.J.N.B., delivered the following decision for the court, in both official languages, on May 7, 2015.