COURT FILE NO.: CV-12-461008 DATE: 2020 02 24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PETER MURPHY, Plaintiff - and - TORONTO REGION AND CONSERVATION AUTHORITY and CITY OF TORONTO, Defendants
BEFORE: Master Todd Robinson
COUNSEL: J. Allingham, for the plaintiff H. Paterson, for the defendant
HEARD: November 25, 2019
REASONS FOR DECISION
[1] The plaintiff moves to compel answers to undertakings given and questions refused during the examinations for discovery of each of Toronto Region and Conservation Authority (“TRCA”) and the City of Toronto (the “City”). The plaintiff also seeks an order compelling representatives of both TRCA and the City to re-attend examination to answer those refused questions ordered to be answered and questions arising from answers to undertakings. Both TRCA and the City were examined for discovery on May 23, 2018. Adam Szalfarski was examined as representative of TRCA and Douglas Jones was examined as representative of the City.
[2] By consent timetable order dated February 25, 2019, all undertakings were to have been satisfied by June 1, 2019. Neither TRCA nor the City had provided any answers to undertakings by that date. In the responding motion materials served on November 15, 2019, TRCA and the City provided answers for each undertaking. Plaintiff’s carriage counsel was in trial at the time of the motion hearing, so had not yet had an opportunity to review the answers for their sufficiency. The plaintiff accordingly requested a sine die adjournment of the motion with respect to undertakings. While TRCA and the City openly preferred to have all issues on the plaintiff’s motion dealt with at the same hearing, they did not oppose the adjournment request in the circumstances. I accordingly adjourned that portion of the motion sine die.
[3] The remainder of the plaintiff’s motion regarding refusals and compelling re-attendance at examination was argued. Prior to commencement of the hearing, agreement was reached that certain refusals had been sufficiently answered and the motion was withdrawn with respect to certain other refusals. I have noted those dispositions in my determinations further below.
Background
[4] This action arises from injuries allegedly suffered by the plaintiff in August 2010, when he fell from his bicycle on a path or trail between ET Seton Park and Evergreen Brick Works. While cycling on the path/trail, the plaintiff alleges that he hit an overhanging tree branch, which knocked him from his bicycle, causing injuries. The plaintiff’s discovery evidence appears to be that he found his way on to the path/trail where he sustained his injuries after becoming lost from the recreational trail known as “Bike Trail 45”. The plaintiff sues TRCA and the City in negligence and on the basis of occupiers’ liability, alleging that they were responsible for ensuring safety of the public on the path/trail and that they failed to properly warn or mark the area with appropriate signage or provide a reasonably safe path for travel.
[5] TRCA and the City acknowledge that they are occupiers, but dispute liability on the basis that the plaintiff was not on a path or trail created, maintained or managed by the defendants at the time his injuries were sustained and had assumed the risks of cycling on an unmarked dirt path through the woods. TRCA and the City dispute having any responsibility to maintain or monitor the path/trail and further argue the plaintiff lacked sufficient cycling skill, lacked proper cycling equipment, and failed to take proper precautions when cycling off trail.
Refusals
[6] In determining the propriety of the refused questions in dispute, I have applied the relevance test stated at both Rules 30.03 and 31.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 and the principles of proportionality set out at Rule 29.2.03. I have further considered the scope of discovery as summarized by Justice Perell in Ontario v. Rothmans Inc., 2011 ONSC 2504 at para. 129.
[7] Both parties argued the motion with reference to the revised responding refusals and undertakings charts of TRCA and the City contained the defendants’ supplementary responding motion record. The numerical references below are to those responding charts, located at Tab A (the City’s examination for discovery) and Tab B (TRCA’s examination for discovery).
[8] My rulings on each of the refusals given during TRCA’s examination for discovery, listed at Tab B of the defendants’ supplementary responding motion record, are as follows:
(a) Refusal No. 1: Withdrawn by the plaintiff.
(b) Refusal No. 2: TRCA’s position is that the question of whether the deponent saw any warning signs when he attended the site himself is irrelevant since the deponent had not visited the site at the time of the alleged loss. The plaintiff argues that post-accident remedial measures can be considered in determining whether an occupier met its standard of care: Lopez v. Toronto (City), 2013 ONSC 848 at para. 73. I agree. The need for and presence of warning signs is relevant based on the pleadings: see paras. 17(e), (f) and (p) of the statement of claim. This question shall be answered.
(c) Refusal No. 3: The plaintiff argues that TRCA’s response is only a partial answer. TRCA argues that the question has been answered by TRCA’s confirmation that it has no record of having knowledge of bicyclists going through the area before the incident. The plaintiff submits that the specific request was to ask Mike Fenning, Associate Director, Property and Risk Management, if TRCA knew that there were bike trails going through the subject area before the plaintiff’s loss. On review of the transcript, I agree that is the question asked and taken under advisement. Mr. Fenning’s knowledge is not reflected in the answer given by TRCA, but the plaintiff’s framing of the question in the refusals chart does not reference Mr. Fenning. I accordingly do not fault TRCA for not having made an inquiry of Mr. Fenning. Nevertheless, in my view, the inquiry must be made of Mr. Fenning and his knowledge, information and belief provided regarding the question.
(d) Refusal No. 4: I agree the question as asked is overbroad. No timeframe for the inquiry regarding complaints was posed. Plaintiff’s counsel argues that 3 years pre-accident is reasonable. That is not the question asked and refused. Upon refusal of the question asked, it was open to examining counsel to make a request for 3 years pre-accident. He did not. It is up to an examining counsel to reframe questions that are subject to objections. It is not appropriate for the court to require answers to questions that were not asked. This refusal was proper and the question need no be answered.
(e) Refusal No. 5: TRCA’s position is that the question was answered during the examination. The plaintiff disagrees. I concur with the plaintiff. The portion of the transcript relied upon by TRCA deals with knowledge of prior injuries, not bicycle use in the area. The question asked is relevant based on the pleadings: see paras. 14-15 and 17(e), (j), (k) and (o) of the statement of claim and paras. 8-9 of TRCA’s statement of defence. This question shall be answered with TRCA’s knowledge, information and belief regarding bicycle use in the area where the injuries were sustained.
(f) Refusal Nos. 6 and 7: TRCA disputes that erosion inspections have any relevance based on the pleadings. TRCA submits that the area in question is not part of the riverbank, that there is no evidence that there was any erosion in the area, and that erosion is not pleaded as a contributing factor. The plaintiff submits that the crux of these questions is not erosion, but TRCA’s knowledge of the use of the paths. I have assessed the questions as asked. I agree there is a semblance of potential relevance of the questions as asked to issues in dispute. However, the test is relevance. The refusals given to these questions were proper and the questions need not be answered.
(g) Refusal No. 8: TRCA is acknowledged to have sufficiently answered this refused question.
(h) Refusal No. 9: The plaintiff argues that the answer provided by TRCA is incomplete. The adjusters’ investigation steps have not been confirmed and the contents of the adjusters’ file have not been clearly identified. I agree that the plaintiff is entitled to know what investigative steps were taken by the adjuster and to be provided an itemization of what documents are in the adjuster’s file, whether or not privilege is claimed. This question shall be answered.
[9] My rulings on each of the refusals given during the City’s examination for discovery, listed at Tab A of the defendants’ supplementary responding motion record, are as follows:
(a) Refusal No. 1: I am satisfied that the state of the guardrail is relevant based on the pleadings: see paras. 17(c), (h) and (m) of the statement of claim and paras. 8-10 of the City’s statement of defence. As already confirmed above, I agree that post-accident remedial measures may be appropriately considered in determining whether an occupier has met its standard of care: Lopez v. Toronto (City), supra at para. 73. This question shall be answered. Whether or not the answer is ultimately admissible evidence at trial is for the trial judge to determine, but in my view it is relevant for discovery purposes.
(b) Refusal No. 2: I am satisfied that the question is relevant based on the pleadings: see paras. 10, 15 and 17(b)-(d), (i), (m) and (p) of the statement of claim and paras. 9-10 of the City’s statement of defence. I do not agree with the City’s submission that the question is overbroad given the length of Bike Trail 45. Signage on a portion of Bike Trail 45 is squarely in issue, so the standards used in design and signage on the trail itself was a proper line of inquiry. This question shall be answered.
(c) Refusal No. 3: I am not satisfied that whether or not there were other wooden structures is relevant based on the pleadings. This question need not be answered.
(d) Refusal No. 4: The City is acknowledged to have sufficiently answered this refused question.
(e) Refusal Nos. 5, 6, 7, 8 and 9: Withdrawn by the plaintiff.
(f) Refusal No. 10: I agree with the City that the question asked is overbroad. There is no foundation in the pleadings or evidence for the City’s use of the trails@toronto.ca email address at the time of the plaintiff’s loss, which also does not appear to have been a question asked of the deponent. The email address is drawn from a document post-dating the incident by several years, which solicits volunteers for a community stewardship program apparently unrelated to Bike Trail 45. In my view, the refusal was proper and this question need not be answered.
(g) Refusal No. 11: The plaintiff argues that relevance of the question has been conceded by the City’s agreement to answer for the period of 1-year pre-accident. The plaintiff argues that 5 years pre-accident is appropriate, and the conduct of risk studies is relevant to the foreseeability of the plaintiff’s injuries. I agree the subject matter is relevant: see paras. 15, 17(a)-(d) and (k) of the statement of claim and paras. 9-10 of the City’s statement of defence. However, the question asked is not limited to 5 years pre-accident. It seeks to confirm if the City “ever engage[d] any independent risk study or analysis prior to this loss”. I agree with the City’s argument that the scope of the question as asked is overbroad. It requests confirmation going back for an undefined period. If the plaintiff only wished to obtain 5-years pre-accident, that ought to have been asked upon refusal of the broader question. As set out above, in my view, it is not appropriate for the court to order an answer to a different question than was actually asked. As noted, the City has agreed to provide an answer for 1-year pre-accident.
(h) Refusal No. 12: I agree with the plaintiff that the City’s knowledge of other similar incidents is relevant based on the pleadings: see para. 17(o) of the statement of claim. The City is correct that the subject newspaper article reports on vandalism of a trail bridge in a different area than where the plaintiff’s loss is alleged to have occurred. The article also post-dates the plaintiff’s loss. However, the article makes reference to a prior vandalism of the same trail bridge that pre-dates the loss. James Dunn is specifically mentioned in the article as having commented to the press on the incident. The City argues that Mr. Dunn is responsible for waterfront parks and not the area at issue in this litigation. The City further argues that the area of vandalism in the article has no connection to Bike Trail 45. Mr. Dunn appears to be personnel with some seniority. I am satisfied that his knowledge of apparently similar incidents on other trails is relevant for the purposes of discovery. Whether or not such evidence is ultimately admissible at trial is for the trial judge to determine. This question shall be answered.
(i) Refusal No. 13: The City’s position is that Bike Trail 45 is not treated by the City as a “natural trail” as defined in the “Natural Environmental Trail Strategy” document that is the subject of the question asked. Accordingly, the City argues that the document is irrelevant and, in any event, it post-dates the plaintiff’s loss. However, there appears to be a genuine dispute regarding the proper characterization of the path/trail where the plaintiff’s loss is alleged to have occurred. The question asked was whether the document was in place at the time of loss and, if not, to provide the strategy that was in place. The complete publication is not in evidence. Nevertheless, the index for the document indicates that it covers topics such as signage and wayfinding, trailhead signage, inspection and maintenance, and risk management. In my view, these types of strategies for dealing with nature trails are relevant based on the pleadings: see paras. 16, 17(b), (f), (p) and 18-19. This question shall accordingly be answered. Whether or not such evidence is admissible at trial is for the trial judge to determine.
(j) Refusal No. 14: The City’s position is that the subject publication entitled “Toronto Multi-Use Trail Design Guidelines” post-dates the plaintiff’s loss and pertains to hard surface, off road routes. The City argues that the path/trail where the plaintiff’s loss allegedly occurred is not such a route. The plaintiff disagrees with the City’s characterization of the path/trail. The complete publication is not in evidence. The plaintiff points to sections of the publication in the index such as “Trails through Natural Areas” and cyclist groups listed as participating stakeholder organizations. Given the dispute regarding the characterization of the subject path/trail, for the same reasons as in subparagraph (i) above, this question shall be answered. Whether or not such evidence is admissible at trial is for the trial judge to determine.
(k) Refusal No. 15: The plaintiff seeks the City’s position on what factual risks the plaintiff is said to have assumed by riding down Bike Trail 45 from Eglinton to ET Seton Park. The City has refused on the basis that the question calls for a legal conclusion as to what constitutes a “risk” and interpretation of what “assuming a risk” means. The City further argues the area of inquiry on Bike Trail 45 is not relevant. The plaintiff argues that he was on Bike Trail 45 and lost his way to arrive on the path/trail where his injuries are alleged to have occurred, and points to the City’s position that the plaintiff voluntarily assumed the risk of travelling on that path/trail. I agree with the plaintiff that questions regarding a party’s legal position are proper on discovery: Ontario v. Rothmans Inc., supra at para. 129. However, I also agree with the City that the subject area of the inquiry is not relevant based on the pleadings. The City’s position at para. 6 of its statement of defence is expressly that the plaintiff “willingly and voluntarily assumed the risks associated with cycling in the area in question”. The “area in question” is the path/trail where the plaintiff’s injuries allegedly occurred, not Bike Trail 45. The City’s refusal was proper and this question need not be answered.
(l) Refusal No. 16: The City is acknowledged to have sufficiently answered this refused question.
(m) Refusal Nos. 17 and 18: The City has already admitted that there was no signage on the subject path/trail except for an “Area Closed” sign on a chain link fence. I agree with the City that the questions requesting that the City produce “all documents” relating to signage in ET Seton Park “in any form” and advise what signage was in place in the identified area for 5 years prior to the loss are overbroad. These questions need not be answered.
(n) Refusal No. 19: I agree with the City that neither the pleadings nor discovery evidence support relevance of the Bailey Bridge to the plaintiff’s alleged loss. It is not pleaded and there is no evidence that the plaintiff ever reached that bridge. Signage on the Bailey Bridge is accordingly not relevant and the refused question need not be answered.
(o) Refusal No. 20: The City has confirmed that no logs pertaining to the erection of signage in the subject area of the question have been located. The plaintiff argues that “erection” is distinct from the question asked, which is about signage “replacements”. The City initially took the question under advisement. An answer was subsequently given without any qualification that it was being provided under Rule 34.12(2) or otherwise without conceding relevance. In my view, the City has thereby conceded relevance. I agree that “erection” and “replacement” may well be distinct. The City shall provide clarification as to whether “logs pertaining to the erection of this signage” includes logs pertaining to replacement of signage. If not, the City shall provide an answer to the question.
(p) Refusal No. 21: Proper signage is an issue in this litigation: see para. 17(f) and (p) of the statement of claim. It appears undisputed that the plaintiff accessed the path/trail on which his injuries are alleged to have occurred from Bike Trail 45. In my view, the person with knowledge of the signage policy for Bike Trail 45 at the time of the loss is a potentially relevant witness. The request for the identity of such a person was accordingly relevant and a proper question. The question shall be answered.
(q) Refusal No. 22: The City has agreed to produce all records dealing with the replacement of the subject trespass sign at the railway fence from one year prior to the loss. I am not satisfied that five years prior to the loss is a relevant or proportionate period. The refusal to provide five years prior to the loss was proper and this question need not be answered.
(r) Refusal No. 23: The City is acknowledged to have sufficiently answered this refused question.
(s) Refusal No. 24: For reasons similar to those in subparagraphs (i) and (j) above, I am satisfied that whether or not the City had a version of the “Toronto Parks & Trails Wayfinding Strategy” in place at the time of the loss is relevant for the purposes of discovery. The City shall provide an answer to this question. As with the other similar questions, whether or not such evidence is admissible at trial is for the trial judge to determine.
(t) Refusal No. 25: The City’s evidence on discovery was that volunteers are involved with park maintenance, but that there were no such volunteers in the area at issue in this litigation. Accordingly, I agree with the City that the City’s volunteer policy at the time of the loss is accordingly now irrelevant, since discovery evidence has confirmed there were no volunteers assisting with park maintenance in the subject area. This question need not be answered.
Re-attendance at Examination
[10] In support of an order that representatives of TRCA and the City re-attend examination to answer the refused questions and questions arising from answers given to undertakings, the plaintiff relies primarily on the decision in Senechal v. Muskoka (Municipality), [2005] OJ No 1406. In that case, Master MacLeod (as he was then) made the following observation at para. 5:
Improper refusals are an interruption of the discovery while undertakings are an acknowledgment that the question is a proper one and a promise to obtain and provide the answer. Generally speaking, had the discovery not been interrupted by the refusal or the answer to the undertaking been available, not only would the answer have been given under oath as part of the transcript but the examining party would have been entitled to ask appropriate follow up questions as part of the examination. Arguably then an answer that genuinely gives rise to follow up questions should give rise to a right to complete the oral discovery as if the question has been answered. […] I have no hesitation in agreeing with the moving party that the party conducting a discovery should generally be entitled to complete the oral discovery once undertakings and questions improperly refused have been answered.
[11] The plaintiff argues that his examinations for discovery were interrupted by the refusals and undertakings and that he is entitled to complete the discoveries of both TRCA and the City by oral examination. The plaintiff argues that a party being examined may not compel the examining party to accept answers in writing simply by refusing to answer questions or by giving undertakings: Senechal, supra at para. 7.
[12] Defendants’ counsel argues that, given the time that has passed between the date of loss to the present day, there is no longer a single, primary representative of the City or TRCA who is realistically able to efficiently answer the refused questions or follow-up questions. The evidence filed by the defendants does support difficulties in finding appropriate representatives to produce for examinations for discovery. The defendants argue it is more efficient to permit ordered answers to be given in writing, and for written questions and answers to be used for questions arising from ordered answers and the answers to undertakings. Defendants’ counsel also argues that, if re-attendance for continued examination is ordered, it should not occur until after the plaintiff has disposed of the undertakings portion of this motion, which was adjourned sine die.
[13] Rule 31.02(1) governs the form of examination and provides a presumption that the examining party determines if examination will be by oral examination or an examination by written questions and answers. A party is not entitled to subject a person to both forms of examination, except with leave of the court.
[14] I have broad discretion to determine how the examinations of TRCA and the City are completed pursuant to Rule 34.15(1), which provides that I may make such order as is just. As also set out in Senechal, supra at para. 7, the court will not automatically make an order for follow up discovery if it serves no useful purpose, and making an order for continued oral examination is generally done in circumstances where it appears necessary in order to fulfil the purposes of discovery.
[15] None of the answers to undertakings were argued before me, and no argument was made regarding what questions arising from undertakings must reasonably proceed by oral examination. I have accordingly restricted my consideration to the refused questions for which answers have been ordered. Having considered the nature of those refused questions, I do not think oral examinations are necessary to provide answers to the questions or to address reasonable follow up questions. The questions may accordingly be answered, and any reasonable questions arising from those answers may be asked and answered, in writing in accordance with the procedures in Rule 35, which governs discovery by written questions. I so order below.
[16] I will remain seized of any issues that may arise from carrying out the order for completing the examinations in writing. If the parties encounter issues requiring directions from the court, a case conference may be arranged through my Assistant Trial Coordinator, either in person or by teleconference. I am not otherwise seized of any interlocutory motions or issues in this proceeding.
Orders
[17] I accordingly order as follows:
(a) The plaintiff’s motion regarding TRCA’s refusal nos. 1 and 8 and the City’s refusal nos. 4, 5, 6, 7, 8, 9, 16 and 23 is withdrawn.
(b) TRCA shall provide written answers to refusal nos. 2, 3, 5 and 9 in accordance with subparagraphs 8(b), (c), (e) and (h) above, within 30 days.
(c) The City shall provide written answers to refusal nos. 1, 2, 12, 13, 14, 20, 21 and 24 in accordance with subparagraphs 9(a), (b), (h), (i), (j), (o), (p) and (s) above, within 30 days.
(d) The balance of the plaintiff’s motion on refusals is dismissed.
(e) Any questions by the plaintiff arising from answers given in accordance with subparagraphs (b) and (c) above, and any questions arising from answers to undertakings given by TRCA and the City, shall be asked and answered in accordance with the procedures in Rule 35.
(f) This order is effective without further formality.
Costs
[18] Costs outlines were exchanged and filed at the hearing of the motion. If the parties cannot agree as to costs, then they shall contact my Assistant Trial Coordinator to arrange a case teleconference with me to make costs submissions. Such case teleconference shall be held within the next fourteen (14) days, unless I otherwise approve a later date. Submissions shall not exceed ten (10) minutes per side. Any case law or other material to be relied upon by a party shall be served and submitted to me directly by email at least five (5) days prior to the teleconference. In the absence of a case teleconference being scheduled as ordered, the parties shall be deemed to have agreed on costs.
MASTER TODD ROBINSON DATE: February 24, 2020