Court File and Parties

COURT FILE NO.: 724/03 DATE: 2004-02-11

ONTARIO SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)

RE: Tom Sottile et al. v. City of Vaughan et al.

BEFORE: Swinton J.

COUNSEL: Jacqueline Wall for Daimler-Chrysler/Moving Party Michael W. Chadwick for Tom Sottile/Responding Party

HEARD at Toronto: February 10, 2004

ENDORSEMENT

[1] Daimler-Chrysler, a defendant in this action, seeks leave to appeal from the order of McLean J. dated June 17, 2003. On a motion for an order for preservation of a motor vehicle and for an order for temporary removal of the vehicle for testing, McLean J. gave the preservation order and also ordered both parties to pay equally any storage costs outstanding as to the vehicle and that any testing or engineering studies shall be conducted on an agreed upon joint basis by the experts of both parties and with results being available to each.

[2] The moving party seeks leave to appeal two aspects of the order: the compelled disclosure of any expert’s report and the payment of storage costs. The responding party did not oppose the motion with respect to the first ground.

[3] With respect to both grounds on which leave is sought, the appropriate inquiry is under Rule 62.02(4)(b), in my view, as this is not a case where there is a conflicting decision by another judge pursuant to Rule 62.02(4)(a).

The Litigation Privilege Issue

[4] In my view, there is good reason to doubt the correctness of McLean J.’s order that any expert’s report obtained be disclosed to the other party. The effect of the order is to abrogate Daimler-Chrysler’s right to claim litigation privilege over any expert report, a fundamental aspect of the Canadian adversarial system (General Accident Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321 (C.A.) at 330-1). Rule 31.06(3) provides that the findings, opinions and conclusions of an expert need not be disclosed during an examination for discovery if they relate to a matter in issue in an action and were formed in preparation for contemplated or pending litigation and for no other purpose, provided that the party being examined undertakes not to call the expert as a witness at trial. The order of McLean J. deprives the moving party of its right to claim litigation privilege in these circumstances.

[5] In order for leave to be granted pursuant to Rule 62.02(4)(b), the matter must be one of public importance (Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.) at 575). This decision creates an exception to litigation privilege in the context of an inspection order that is of importance for litigants throughout the province, and not just these parties. Therefore, leave is granted with respect to paragraph 3 of the order.

The Order to Pay Half the Storage Costs

[6] The moving party also argues that there is good reason to doubt the correctness of the order that it pay half of the storage costs. The vehicle which is to be tested is stored with a non-party, Prochilo Bros., which has refused to allow the vehicle to be tested until the unpaid storage costs are paid. Prochilo Bros. was not served with the motion materials. The amount owing is substantial, although there is no precise quantification, and the moving party states that there was no evidence before the motions judge with respect to the quantification of the costs.

[7] The moving party argues that the motions judge has, in effect, granted partial summary judgment on the plaintiff’s claim for special damages to cover towing and storage costs without first finding liability or having evidence of the quantification of the damages. The plaintiff argues that the order should simply be seen as an award of costs on an interlocutory matter, which is a matter within the discretion of the motions judge, or a term of the inspection pursuant to Rule 32.01(3), which is, again, an exercise of discretion.

[8] In my view, this order can not be characterized solely as an order for costs. It is not an order to compensate the plaintiff for legal fees or disbursements. Rather, it is an order for payment of storage fees to a non-party who is in a contractual relationship with the plaintiff.

[9] However, the order of the motions judge was an exercise of his discretion, made in the determination whether to order inspection and to facilitate access for testing. While the moving party argues that he has pre-determined the issue of liability for special damages by this order, I do not find that to be the case. The plaintiff’s claim for special damages and the issue of mitigation remain for the trial judge to determine, while Daimler-Chrysler, if successful at trial, will be able to raise a claim for reimbursement before the trial judge.

[10] Even if there were good reason to question the correctness of this aspect of the order of the motions judge, the order was made in the exercise of his discretion on the facts before him. There appears to be no matter of public importance here nor any matter relevant to the development of the law that would warrant the granting of leave on this issue.

Conclusion

[11] Leave to appeal is granted with respect to paragraph 3 of McLean J.’s order. In accordance with oral submissions, costs to the responding party are fixed at $1,500.00 for this motion, payable forthwith. The parties are agreed that if leave is granted, the hearing of the appeal shall be in Toronto.

Released: February 11, 2004

Swinton J.