Court File and Parties

COURT FILE NO.: 19-CV-617403 MOTION HEARD: 2021-11-23 REASONS RELEASED: 2022-02-24

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

LORRAINE BLUE Plaintiff

• and-

METRO ONTARIO INC. Defendant

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: R. Plate -for the Plaintiff E-mail: dswilson@davidswilsonlaw.com

D. Iaboni -for the Defendant E-mail: diaboni@intact.net

REASONS RELEASED: February 24, 2022

Reasons for Endorsement

I. Introduction

[1] The Plaintiff brings a motion in this Simplified Procedure action for an order granting leave to extend the time for examination for discovery of the Defendant’s representative by 60 minutes.

II. Background

[2] This action arises from a slip and fall accident on July 22, 2017 at a grocery store in Toronto operated by the Defendant Metro Ontario Inc. (“MOI”). The Plaintiff commenced this action by Statement of Claim issued on April 2, 2019 claiming general damages of $100,000.

[3] MOI delivered a draft Affidavit of Documents on March 11, 2020 which made reference to store surveillance footage of the incident. Plaintiff’s counsel made numerous requests for production of the surveillance in advance of examinations for discovery scheduled for January 11, 2021. On December 9, 2020, Defendant’s counsel sent an email to Plaintiff’s counsel attaching the surveillance but Plaintiff’s counsel was unable to open it. Plaintiff’s counsel exchanged correspondence with a law clerk in MOI’s counsel’s office in an attempt to open it.

[4] On January 8, 2021, Plaintiff’s counsel received a CD from MOI’s counsel containing the surveillance but was unable to open it. On the same day, an IT provider for Plaintiff’s counsel was able to open the attachment to the December 9 email. However, the attachment contained only 20 of the 60 minutes of surveillance footage. Plaintiff’s counsel advised MOI’s counsel on January 10, 2021, the day before the examination for discovery of Patti Burrows, a store manager with MOI.

[5] Counsel discussed the possibility of having the balance of the surveillance sent prior to the commencement of Ms. Burrows’ examination, however, this was not possible. Therefore, counsel agreed that Ms. Burrows’ examination would proceed as scheduled and MOI’s counsel would have her office try to send the portion of the surveillance not included with the December 9 email (but included on the CD) to Plaintiff’s counsel during the examination. It was agreed that once received, Plaintiff’s counsel would adjourn the examination so that he could watch the portion he had not viewed and then resume the examination to ask Ms. Burrows any related questions (Transcripts at Question 1).

[6] Ms. Burrows’ examination commenced at 11:02 a.m. Ms. Burrows had not viewed the surveillance however, Plaintiff’s counsel asked some questions about it primarily with respect to her role as the staff member who saved the footage. There was extensive questioning regarding problems she encountered in saving the surveillance and the length of the footage including whether 3 hours or 1 hour was available. MOI gave an undertaking to advise how much surveillance was saved and how much was available for counsel’s review that day (Transcripts at Questions 375-459).

[7] At one point, MOI’s counsel advised Plaintiff’s counsel that he was approaching the 3-hour limit. At 2:42 p.m., MOI’s counsel advised Plaintiff’s counsel that he had exceeded the 3-hour limit, which Plaintiff’s counsel disputed. When Ms. Burrows’ examination concluded at 3:56 p.m, the surveillance had not been sent and MOI’s counsel advised that it was still downloading and had been since 12 noon. Plaintiff’s counsel advised that his examination was completed subject to any questions related to the unsent surveillance however, after discussions with MOI’s counsel it became apparent that MOI would not agree to reproduce Ms. Burrows. MOI’s counsel sent an email at 4:44 p.m. attaching the complete surveillance in three separate parts totaling approximately 60 minutes.

[8] During oral submissions, I canvassed potential terms with counsel which would resolve the motion and permit limited questioning on the surveillance. Although an agreement was not reached, the Plaintiff agreed and confirmed to the court that an additional 30 minutes of discovery would be sufficient. At the time the motion was argued, the Plaintiff was seeking an order to compel MOI to produce the full surveillance, however, MOI has agreed to do so.

III. The Law and Analysis

[9] The only issue on this motion is whether the examination for discovery of MOI’s representative should be extended by 30 minutes so that Plaintiff’s counsel can ask further questions about the surveillance.

[10] Rule 76.04(2) of the Rules of Civil Procedure states the following regarding examinations for discovery under the Simplified Procedure:

“Despite rule 31.05.1 (time limit on discovery), no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this Rule, exceed a total of three hours of examination, regardless of the number of parties or other persons to be examined.”

[11] Rule 76.01(2) of the Rules of Civil Procedure provides that the Rules that apply to an action apply to an action that is proceeding under Rule 76 unless Rule 76 provides otherwise.

[12] Rule 3.02(1) of the Rules of Civil Procedure states:

(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.

(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.

(3) An order under subrule (1) extending or abridging a time prescribed by these rules and relating to an appeal to an appellate court may be made only by a judge of the appellate court.

[13] Rule 2.03 of the Rules of Civil Procedure states that the court may, only where and as necessary in the interest of justice, dispense with compliance with any Rule at any time. Rule 1.04(1) of the Rules of Civil Procedure provides that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[14] The Plaintiff submits that MOI agreed to extend the 3-hour limit on Ms. Burrows’ examination and then resiled from that agreement. MOI states that it did not agree to extend the 3-hour limit. MOI acknowledges that there were technical difficulties, however, submits that it bears no responsibility for the difficulties encountered by Plaintiff’s counsel in opening and viewing the surveillance and that Plaintiff’s counsel received the CD with the complete footage. MOI argues that it is also not responsible for counsel’s decision to use the entire 3 hours even though he had not viewed the complete surveillance and that he should have stopped sooner to save some time.

[15] In my view, this motion is not about fault or responsibility for the technological issues but rather the agreement and understanding reached between counsel and what is just and reasonable in the circumstances. Counsel were reasonably attempting to accommodate each other and Ms. Burrows amid the ongoing technical issues. I accept that MOI did not explicitly agree to extend the 3-hour limit nor did it agree to re-produce Ms. Burrows. However, based on the record before me, I find that the parties agreed that when the balance of the surveillance was received, the Plaintiff would have the opportunity to review it and ask further questions related to the portion counsel had not reviewed. MOI submits that it only agreed to “try” and send the surveillance again during the examination. However, there was no suggestion or qualification that if the surveillance was not received during the examination that the Plaintiff would lose the opportunity to examine Ms. Burrows on the portion of the surveillance which counsel had not previously reviewed. Plaintiff’s counsel was not made aware of MOI’s position in this regard until the end of the examination and had no way of knowing that this was case.

[16] I am satisfied that Plaintiff’s counsel reasonably relied on MOI’s counsel and his own understanding that he would receive the balance of the surveillance during the examination and that there was no suggestion that proceeding that day would result in losing the opportunity to ask any questions on the unviewed portion if it was not received before the end of the examination that day. I also accept Plaintiff’s counsel’s uncontroverted evidence that he would not have proceeded with the examination had he known that this was a risk. Counsel’s understanding is consistent with his examination of Ms. Burrows regarding the surveillance and MOI’s undertaking to advise how much of the surveillance video was saved and how much was available on the day of the examination. Specifically, it would be inconsistent to conclude that any further examination on the surveillance was closed off to the Plaintiff when MOI was unable to advise by the end of Ms. Burrows’ examination how much surveillance video existed and was available for viewing that day, including whether or not there was 3 hours instead of 1 hour. This undertaking contemplated the possibility of follow-up questions.

[17] Rule 76.04(2) of the Rules of Civil Procedure does not provide that the time limits on oral discoveries under the Simplified Rules can be extended on consent. However, MOI has taken the position that the time can be extended by agreement and in fact, one of the reasons MOI will not agree to reproduce Ms. Burrows is that it already allowed her to be examined in excess of 3 hours. Similarly, notwithstanding the prohibition in Rule 76.04(1) of the Rules of Civil Procedure on examination for discovery by written questions and answers under the Simplified Rules, the parties discussed the possibility of posing any additional questions regarding the surveillance in writing. However, the Plaintiff refuses to proceed in this manner, taking the position that written discovery is not appropriate in this case. While the insistence on the strict application of Rule 76 appears at odds with some of the positions the parties are taking or have taken, in the absence of an explicit agreement on a re-attendance, I will proceed to determine whether the court can and should order Ms. Burrows to re-attend for 30 minutes.

[18] MOI submits that this Court does not have the jurisdiction to extend the 3-hour time limit in Rule 76.04(2) of the Rules of Civil Procedure. MOI relies on the decision of Associate Justice Jolley in Leask v. Homewood Health Centre Inc., 2021 ONSC 6287. In that case, plaintiff’s counsel examined the defendant for over 5 hours but refused to permit the defendant to continue past three hours, insisting on the strict application of Rule 76.04(2) of the Rules of Civil Procedure. A.J. Jolley held that unlike Rule 31.05.1 of the Rules of Civil Procedure, Rule 76.04(2) of the Rules of Civil Procedure does not provide the court with the discretion to grant leave to extend the time limits for oral discovery:

“10 Unfortunately, I find that the court does not have the discretion to extend the simplified procedure time limits even when counsel have behaved in his manner. While the rules are to be construed to secure the just determination of the matters in dispute and compliance may be waived in the interest of justice, rule 76.04(2) does not provide the court with leave to extend the time limits, in direct contrast with rule 31.05.1.” (Leask at paras. 10-12).

[19] The Plaintiff relies on Keedi v. Wawanesa, 2021 ONSC 3650 in which R.P. Kaufman J. held as follows:

“11 Unlike Rule 31.05.1 (which limits oral discoveries to 7 hours in regular actions), Rule 76.04(2) does not provide that the time limit may be extended on consent or with leave of the Court. The defendants concede that the Court has jurisdiction to extend the two-hour limit. Indeed, Rule 2.03 provides that the Court may, only and where necessary in the interest of justice, dispense with compliance with any rule at any time. Further, Rule 3.02 allows the Court to extend any time prescribed by these rules on such terms as are just. The defendants argue that Rule 76 aims to streamline claims of relatively modest value, to reduce legal costs and to maintain proportionality. The defendants contend that the Court should not undermine these important objectives by extending the time limit without legitimate reasons. I agree.”

[20] In Keedi, the defendant produced additional relevant documents after discovery in satisfaction of an undertaking. The court concluded that had the documents been produced prior to discovery, the plaintiffs would have asked the questions during the examination and the motion would have been avoided. The plaintiffs requested a 90-minute extension and the court granted 45 minutes.

[21] MOI argues that Keedi is distinguishable because the defendants conceded that the court had jurisdiction to extend the time limit and was more inclined to do so because the limit was only 2 hours at the time of the examination but 3 hours by the time the motion was argued. I do not accept these submissions. The facts of the present case are more analogous to Keedi and I adopt the reasoning from Keedi including Kaufman J’s conclusion that the court has the jurisdiction to extend the 3-hour time limit under Rule 76.04(2) of the Rules of Civil Procedure. I also conclude that Leask is distinguishable given the unique facts of the present case including the agreement regarding the surveillance and unsuccessful transfer during the examination, the fact that MOI insists on the strict application of the Simplified Procedure in some but not all respects and after permitting the examination to exceed 3 hours and the undertaking regarding the length of the surveillance.

[22] MOI argues that the Rules do not leave any gaps to be filled by the inherent jurisdiction of the court. An Associate Judge does not have inherent jurisdiction. This Court only has the jurisdiction granted to it by statute, including the Rules. In my view, this includes Rule 3.02(1) of the Rules of Civil Procedure which permits this Court to extend any time prescribed by the Rules. Rule 3.02(1) does not contain language which excludes its application to Rule 76.04(2) of the Rules of Civil Procedure. Further, Rule 76.01(2) of the Rules of Civil Procedure provides that the Rules which apply to an action apply to an action proceeding under Rule 76 unless Rule 76 provides otherwise and Rule 76 does not exclude the application of Rule 3.02(1). I reach the same conclusions regarding Rule 2.01 of the Rules of Civil Procedure.

[23] I am satisfied that it is just, reasonable and appropriate in all of the circumstances to extend Ms. Burrows’ examination for 30 minutes. The surveillance is relevant and crucial to the matters at issue in the litigation and it would be unjust and prejudicial for the Plaintiff to be prevented from asking its remaining, limited questions. This is particularly true given the agreement between the parties, the fact that Plaintiff’s counsel had not had an opportunity to view the complete surveillance and was relying on MOI’s counsel to provide it and the issues raised during the examination regarding the length of the footage. As in Keedi, similar to answering an undertaking, the complete footage was not received until after the examination and had it been received as planned, I am satisfied that Plaintiff’s counsel would have asked any remaining questions at that time. This is in addition to MOI’s undertaking to advise of the length of the surveillance. Given that this is a limited re-attendance for the specific purpose of asking questions arising from the surveillance not already viewed, it is reasonable, proportionate and consistent with Rule 1.04(1) of the Rules of Civil Procedure. It is also consistent with the purposes of the Simplified Procedure to minimize costs and delay and streamline claims so that they can proceed to trial as expeditiously and efficiently as possible.

IV. Disposition and Costs

[24] Order to go directing MOI to deliver the surveillance within 7 days (if not already delivered) and for Ms. Burrows to re-attend on examination for discovery for 30 minutes limited to any questions arising from the portion of the surveillance not viewed by Plaintiff’s counsel prior to her January 11, 2021 examination on a date and time to be agreed upon by counsel.

[25] If the parties are unable to agree on the costs of this motion, the parties may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) on a timetable to be agreed upon by counsel.

Released: February 24, 2022

Associate Justice McGraw