Executive Summary: Key Legal and Evidentiary Issues

• Adequacy of Avondale’s Statement of Particulars in response to Forest Protection Limited’s Demand for Particulars under Rule 27.08 of the New Brunswick Rules of Court.
• Dispute over whether references to documents (including Procore records and contract documents) sufficiently answer the pleaded allegations or improperly shift the burden to FPL to “find” the particulars.
• Tension between a party’s possession of documents and its actual knowledge of the specific facts sought by way of particulars at the pleadings stage.
• Line-drawing between “material facts,” “particulars” and “evidence,” particularly as it relates to delays, scope changes and budget impacts in a complex construction dispute.
• Extent to which particulars can be used to obtain detail versus the proper use of discovery and document production (including Rule 31.04) to clarify Procore data and project documentation.
• Exercise of judicial discretion to refuse further particulars where the court views the additional details sought as evidentiary rather than necessary to enable a responsive pleading, resulting in dismissal of the motion with costs of $2,000 payable to Avondale.

Background and parties

Forest Protection Limited (FPL) commenced an action arising out of a construction project to renovate and expand its airplane hangar in Lincoln, New Brunswick. EXP Services Inc. (EXP) was engaged for design and construction management, and Avondale Construction Limited (Avondale) was recruited as the project contractor and construction manager. The parties entered into a construction management contract under which EXP acted as architect/engineer and consultant, while Avondale served as construction manager. FPL was dissatisfied with the completed project, particularly because the hangar building allegedly leaked, and it claimed Avondale was negligent and in breach of contract in the way it constructed and managed the work.

Core allegations in the underlying dispute

In its action, FPL alleges that Avondale was negligent in constructing the roof, caused delays in the project, and unilaterally increased the budget, scope and schedule, leading to increased costs for FPL. FPL’s position is that Avondale expanded the project and extended the timelines beyond what had been agreed, without proper authority, and that these changes, together with alleged construction deficiencies, caused financial and operational harm to FPL. Avondale, in turn, filed a Statement of Defence and Counterclaim. It denies negligence or breach of contract and asserts that it complied with the plans, specifications and drawings either provided by, or approved through, FPL and EXP. Avondale also pleads that any changes to scope or budget occurred with FPL’s knowledge and consent, and it attributes the alleged problems to design issues and pre-existing structural issues at FPL’s facility, as well as FPL’s own failures to observe the agreed schedule.

Procedural posture and the demand for particulars

The decision addresses a specific procedural motion, not the final determination of liability. FPL served a Demand for Particulars dated July 15, 2025, seeking detailed clarification of various allegations in Avondale’s Statement of Defence and Counterclaim. In response, Avondale served a Statement of Particulars on August 5, 2025. FPL took the position that Avondale’s responses were deficient or non-responsive under the rules of pleading, particularly Rule 27.06(1) and Rule 27.07(3), and it brought a motion for an order compelling Avondale to provide further and better particulars under Rule 27.08 of the Rules of Court. The challenged particulars fell broadly into two categories. First, there were responses in which Avondale effectively answered by saying the requested particulars “relate to” specified documents, including contract documents, cost estimates and Procore project records. Second, some responses refused the demand on the basis that FPL was seeking “evidence or a description of evidence,” which Avondale said goes beyond proper particulars at the pleadings stage.

Legal framework on particulars and discovery

The Court reviewed the purpose and function of particulars in civil litigation. Particulars can be ordered at two stages: at the pleadings stage, to allow intelligent responsive pleadings, and later, after discovery, when additional clarity is needed to define the issues for trial. The judge noted that particulars at the pleadings stage are ordered only if the facts are not within the knowledge of the requesting party and are necessary to enable that party to plead, and emphasized that this motion concerned the sufficiency of particulars already provided by Avondale, not an absence of particulars altogether. The Court drew on authorities distinguishing material facts, particulars and evidence, observing that particulars “flesh out” material facts but must not descend into the level of evidence. The decision highlights that discovery and document production—such as a demand to inspect documents under Rule 31.04—are the proper mechanisms for obtaining evidentiary detail and clarifying voluminous or technical records, rather than expanding particulars beyond their intended scope.

Dispute over document-based responses and Procore references

A central issue was whether Avondale’s practice of answering certain demands by pointing to specific documents, including entries in the Procore project management system, was sufficient. FPL argued that referring to documents as “relating to” an allegation was vague, and that simply indicating that materials existed within its possession or available systems did not equate to providing true particulars. Avondale countered that its responses were precise, pointing to specific documents and Procore records, and that criticizing the use of the phrase “relates to” was mere semantics. The Court agreed with Avondale that describing the requested information as “relating to” identified documents did not make the particulars deficient. The judge accepted that FPL had, in reality, possession or control over most, if not all, of the relevant documents, including the 30-page CCDC contract and associated plans and specifications prepared by EXP. The Court acknowledged that FPL appeared to have difficulty extracting and understanding the relevant information from the Procore system, but concluded that this was properly addressed by seeking assistance with Procore or using discovery tools—such as document production under Rule 31.04—rather than demanding more particulars. Because resolving whether the Procore references fully answered FPL’s demands would require the Court to review the software and underlying records, which it was not prepared to do at this stage, the judge declined to find the particulars inadequate on that basis.

Characterization of certain requests as seeking evidence

The second tranche of contested demands concerned detailed questions about schedule delays, scope changes and budget impacts. Avondale had responded that these demands improperly sought evidence, while in several instances also indicating particular documents and materials that would speak to the issues. The Court recognized that drawing a sharp line between particulars and evidence is difficult, but emphasized that particulars should not be used to compel a party to lay out its full evidentiary case at the pleadings stage. In the construction context, issues such as delay analysis, scope variations and cost consequences are complex and often require expert analysis. The judge considered that the further particulars sought here were essentially asking Avondale to provide evidentiary-level detail—including how and why specific delays and cost changes occurred—rather than merely clarifying the material facts necessary for FPL to plead a Reply. Given this characterization, the Court held that FPL’s additional demands strayed into the realm of evidence and thus exceeded what was properly obtainable by way of further particulars. The fact that Avondale nonetheless indicated certain documents and references in four of the five challenged responses reinforced the judge’s view that the defendant had not simply stonewalled; instead, it had already gone some distance in pointing to the underlying material.

Outcome and costs

In the result, the Court concluded that Avondale’s Statement of Particulars sufficiently responded to FPL’s Demand for Particulars for the purposes of allowing FPL to plead to the Statement of Defence and Counterclaim. The judge found no basis to compel further and better particulars, particularly where the remaining information FPL sought should be pursued through discovery and document production mechanisms, including targeted use of Procore records. FPL’s motion was therefore dismissed. On the question of costs, the Court ordered that Forest Protection Limited pay costs to Avondale Construction Limited in the fixed amount of $2,000.00, payable forthwith, and there was no separate award of damages or other monetary relief in this procedural decision beyond that costs order.