TD Insurance Home and Auto v. Sivakumar (Litigation Guardian of)

TD Insurance Home and Auto, formerly Liberty Insurance Company of Canada, formerly Liberty Mutual Insurance Company v. Sivakumar, a Minor by his Litigation Guardian, Sivabalasingam et al. [Indexed as: TD Insurance Home and Auto v. Sivakumar (Litigation Guardian of)]

80 O.R. (3d) 671

Court of Appeal for Ontario,

Laskin, Borins and Juriansz JJ.A.

May 25, 2006

• Vous trouverez la traduction française de la décision ci-dessus à la p. 680, post.

Civil procedure -- Evidence -- Preservation of evidence -- Insured claiming that infant was injured in motor vehicle accident -- Insurer denying that injury was caused by motor vehicle accident on basis of expert opinions -- Court not having jurisdiction to grant order under Rule 36 of Rules of Civil Procedure for videotaped examination of those experts under oath in order to preserve their evidence in case they were unable to testify in action which infant might commence when he reached his majority -- Rule 36.01 not conferring any power on court to order preservation of evidence prior to commencement of proceeding -- Section 146 of Courts of Justice Act not applying to confer such power -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 146 -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 36.01.

The father of a child who suffered a significant brain and skull injury put his automobile insurer on notice that the child was injured in a motor vehicle accident. The child's mother had originally claimed that the child was injured when he fell down a stairway while strapped in his car seat. The insurer retained three experts to opine on the cause of the child's injuries. The experts concluded that the injuries were probably caused by a fall down the stairs, and not by a motor vehicle accident. The two-year limitation period for a claim for the recovery of damages occasioned by a motor vehicle did not begin to run until the child reached his majority in 2019. Accordingly, in order to preserve the evidence of the three experts in case they were unable to testify in any action which the child might commence, the insurer brought an application for an order requiring the videotaped examination under oath of those experts. The application judge granted the application, relying on the combined effect of ss. 1, 95, 96, 101 and 146 of the Courts of Justice Act and Rules 14 and 36 of the Ontario Rules of Civil Procedure. The insured appealed. [page672]

Held, the appeal should be allowed.

Rule 14 of the Rules of Civil Procedure and ss. 1, 95, 96 and 101 of the Courts of Justice Act had no application to the circumstances of this case. Rule 36.01 does not confer any power on the court to order the preservation of evidence prior to the commencement of a proceeding, which is defined in rule 1.03(1) as an action or application. The use of the word "party" throughout Rule 36 clearly indicates that it applies only where an action has been commenced and one of the parties to the action wishes to preserve the evidence of a witness for use at trial, usually in circumstances where the proposed witness is ill or of advanced years. As no action had been commenced on behalf of the child, rule 36.01 conferred no power on the application judge to grant the impugned order. Section 146 of the Courts of Justice Act was of no assistance to the insurer. Section 146 does not confer jurisdiction, but refers to procedural lacunae where jurisdiction has otherwise been conferred. That rule 36.01 does not apply where no proceeding has been commenced is not a procedural gap. The absence of statutory authority enabling the court to act prior to the commencement of a proceeding is not a matter of procedure. It indicates the intention of the Civil Rules Committee to confine the application of the rule to situations where a proceeding has been commenced.

APPEAL from a judgment of Echlin J. of the Superior Court of Justice dated July 11, 2005, granting an order for the preservation of evidence.

Cases referred to

Bisoukis v. Brampton (City) (1999), 1999 3825 (ON CA), 46 O.R. (3d) 417, [1999] O.J. No. 4598, 180 D.L.R. (4th) 577, 7 M.P.L.R. (3d) 1, 1 M.V.R. (4th) 42 (C.A.) [Leave to appeal to S.C.C. denied [2000] S.C.C.A. No. 52]; Murphy v. Welsh, 1993 59 (SCC), [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83, 14 O.R. (3d) 799n, 106 D.L.R. (4th) 404, 156 N.R. 263, 18 C.C.L.T. (2d) 101, 18 C.P.C. (3d) 137, 47 M.V.R. (2d) 1 (sub nom. Stoddard v. Watson); R. v. Sztuke (1993), 1993 8494 (ON CA), 16 O.R. (3d) 559, [1993] O.J. No. 3038, 87 C.C.C. (3d) 50 (C.A.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 1, 95, 96 [as am.], 101 [as am.], 146

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 206(1) [rep.]

Limitations Act, R.S.O. 1990, c. L.15, s. 47 [rep.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.03, 1.04(1), 1.04(2), 7.08(1), 14, 36, 36.01, 36.02, 36.04, 40.01

Counsel

Charlia D. Von Buchwald, for appellant. John P. Desjardins, for respondent.

The judgment of the court was delivered by

BORINS J.A.: -- I

[1] This appeal arises from what Echlin J. characterized as a "unique application". It raises the question of whether Rule 36 of [page673] the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits a party who intends to introduce transcript or videotape evidence of a person at trial may, with the leave of the court, examine the person under oath before the trial in circumstances where no proceeding has been commenced. The application judge found that it did. With respect, I disagree. For the reasons that follow, I would allow the appeal. II

[2] This appeal arises from rather unusual circumstances. On April 17, 2002, Ajeevan Sivakumar was rushed to hospital. He was five and a half months old. He had sustained significant injury to the right parieto-occipital region of his brain and skull that required surgical repair. When the child initially presented for medical care, his mother, Ahilaverni Sivakumar, gave the history that he had fallen down a stairway while strapped in his car seat. However, approximately six weeks later, she stated that this was not the way in which her son had been injured. Rather, she claimed the injuries occurred when he was restrained in his car seat in the rear of a vehicle she had been driving when she lost control of it and hit a tree.

[3] As the child's father, Murugesu Sivakumar, was the owner of the vehicle that was insured by the respondent, on June 6, 2002, the law firm representing the Sivakumar family put the insurer on notice. In part, its letter read:

This letter will serve as formal notification provided on behalf of our client, Ajeevan Sivakumar, minor, and his family, of their intention to commence legal action against you for personal injury damages arising from injuries sustained by Ajeevan Sivakumar as a result of a motor vehicle accident which occurred on the above-noted date of April 17, 2002, in the City of Scarborough. . . . . .

The foregoing information is served in accordance with Regulation 2(1) made under The Insurance Act.

[4] Because of the conflicting account of how the child was injured, the respondent considered that it was prudent to retain three experts to opine on the cause of the child's injuries. It retained two physicians, Dr. Robert Hollenberg and Dr. Peter Knight, who delivered their reports on May 18, 2004 and June 18, 2004 respectively. At present, Dr. Hollenberg is age 65, while Dr. Knight is age 78. It also retained Saad Nassar, an engineer, who delivered his report on August 3, 2004. Dr. Nassar is age 49. In the opinion of each of the experts, the child's injuries were probably caused by a fall down the stairs, and not by a motor vehicle [page674] accident. Thus, if proceedings are brought against the owner and operator of the Sivakumar vehicle, the respondent insurer says that it will defend the action on the ground that the injuries were not sustained as a result of an automobile accident. [See Note 1 below] Consequently, as I will explain in some detail, the respondent brought an application to preserve the evidence of the three experts.

[5] What precipitated the respondent's application is the lengthy period of time that could elapse before Ajeevar asserts a claim for damages. As he was born on November 1, 2001, and, therefore, a minor when he was injured, the two-year limitation period that was formerly prescribed by s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 for bringing a claim for the recovery of damages occasioned by a motor vehicle does not begin to run until he reaches his majority on November 1, 2019: Limitations Act, R.S.O. 1990, c. L.15, s. 47, which was in force at the time of the alleged motor vehicle accident. Thus, reading these provisions together, Ajeevan Sivakumar has until November 1, 2021, to commence an action for damages against the owner and operator of the motor vehicle in which his mother claimed he was injured: Murphy v. Welsh, 1993 59 (SCC), [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83. This is because s. 47 of the former Limitations Act permitted the running of time established for a limitation period to be postponed if the plaintiff is under a legal disability "at the time the cause of action accrues": Bisoukis v. Brampton (City) (1999), 1999 3825 (ON CA), 46 O.R. (3d) 417, [1999] O.J. No. 4598, at para. 34 (C.A.) [leave to appeal to the Supreme Court of Canada dismissed [2000] S.C.C.A. No. 52].

[6] It was, of course, prudent for the motor vehicle insurer to obtain the experts' opinion regarding the cause of the child's injuries when the evidence was fresh. On the assumption that the child has until November 1, 2021 to sue its insured, the respondent commenced an application against the child and his parents in which it sought the following remedies:

(b) a mandatory order requiring the examination under oath of witnesses, Saad Nassar, Ph. D., P. Eng. of Walters Forensic Engineering Inc., Dr. Peter R. Knight, 89 Dalewood Crescent, Hamilton, Ontario, and Dr. Robert D. Hollenberg, Department of Surgery, McMaster University Medical Centre, for the purpose of preserving their evidence for trial; [page675]

(c) in the alternative, an order that the applicant, TD Insurance Home and Auto, formerly Liberty Insurance Company of Canada, formerly Liberty Mutual Insurance Company, be granted leave pursuant to rule 36.01 of the Rules of Civil Procedure to examine under oath the witnesses, Saad Nassar, Ph. D., P. Eng. of Walters Forensic Engineering Inc., Dr. Peter R. Knight, 89 Dalewood Crescent, Hamilton, Ontario, and Dr. Robert D. Hollenberg, for the purpose of ensuring that their evidence be available to be tendered into evidence at the trial of this action; and

(d) an order that the examinations, cross-examinations and re-examinations of the aforementioned witnesses be preserved by way of videotape for later presentation at trial.

[7] The respondent relied on the following grounds:

-- the true nature of the child's injuries will or may not be known for many years;

-- it is possible that its three experts may not be able to testify at trial by reason of age or infirmity;

-- the Superior Court of Justice has inherent jurisdiction to control its own process;

-- the due administration of justice requires that the evidence of the experts be preserved until the child has brought an action to trial;

-- sections 96, 101 and 146 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA");

-- rules 1.04(1), 1.04(2), 36.01, 36.02 and 40.01 of the Rules of Civil Procedure. III

[8] For the purpose of this appeal, of the above statutory provisions it is only necessary to consider s. 146 of the CJA and rule 36.01 of the Rules of Civil Procedure. Section 146 of the CJA states:

146. Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice.

Rule 36.01 states:

36.01 (1) A party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person's testimony available to be tendered as evidence at the trial. [page676]

(2) In exercising its discretion to order an examination under subrule (1), the court shall take into account,

(a) the convenience of the person whom the party seeks to examine;

(b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;

(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;

(d) the expense of bringing the person to the trial;

(e) whether the witness ought to give evidence in person at the trial; and

(f) any other relevant consideration.

(3) Before moving for leave to examine an expert witness under subrule (1), the moving party shall serve on every other party the report of the expert witness referred to in subrule 53.03(1) (calling expert witness at trial) unless the court orders otherwise.

(Emphasis added)

Rule 36.04 governs the use that may be made at trial of an examination under rule 36.01. IV

[9] The application judge granted the following judgment:

1. THIS COURT ORDERS that, . . . . .

c. Dr. Peter R. Knight, 89 Dalewood Crescent, Hamilton, Ontario;

d. Dr. Robert D. Hollenberg, Department of Surgery at McMaster University Medical Centre; and

e. Saad Nassar, Ph.D., P. Eng. of Walters Forensic Engineering Inc.,

be examined, cross-examined and re-examined under oath by all interested parties in this application and in Ontario Superior Court of Justice file No.: 04-CV-266969SR, Ajeevan Sivakumar, a Minor by his Litigation Guardian Murugesu Sivakumar v. Liberty Mutual Insurance Company.

2. THIS COURT ORDERS that the Applicant shall pay the expense of the production of the three above-noted experts;

3. THIS COURT ORDERS that the examinations of the three above-noted witnesses shall be video recorded and further orders that the Applicant shall supply copies of the transcripts and video recordings to all concerned parties at no cost to the said parties;

4. THIS COURT ORDERS that the Respondents and other concerned parties shall be fully at liberty to cross- examine as they may be advised by their counsel; and,

5. THIS COURT ORDERS that there be no costs of the application. [page677]

[10] Counsel for the Sivakumar family argued before the application judge that her clients would be prejudiced by both the cost of retaining their own experts to advise their lawyers in cross-examining the respondent's experts, and the costs of legal fees. She also argued that the court had no jurisdiction to make the order requested by the respondent.

[11] The application judge rejected both arguments for the following reasons:

I specifically find that such potential prejudice is greatly outweighed by the prejudice that would occur should any such experts be lost prior to trial.

Mr. Desjardins [on behalf of the insurer] has undertaken to have his client cover the costs of the experts' attendance & the costs of recording the event.

Further, Mr. Chobotar [on behalf of the Sivakumar family] argued that this court has no jurisdiction to make such an order in this instance. I specifically reject that argument and hold that the combined effect of sections 1, 95, 96, 101, and 146 of the Courts of Justice Act, and Rules 14, and 36 of the Consolidated Rules of Practice permit such an order to be made in the circumstance.

Accordingly, I see some significant potential advantage to preserving such evidence and that such greatly outweighs any alleged prejudice to the respondents. (Such preservation order is discretionary and I exercise my discretion in favour of the applicants, fully cognizant that Rule 36.01(2)(c) only requires "the possibility of the individual being unable to testify (emphasis added)."

In this unusual instance, I find it to be in the interests of the administration of justice to make such order. As indicated by Henry J. in Patterson v. Christie, et al (1983), 1983 1698 (ON SC), 41 O.R. (2d) 145, the evidence will be taken and recorded for what it's worth. In the end, the trial judge will make the determination of what, if any value or weight ought to be accorded to it and whether any, part or all is admissible or relevant. VI

[12] In my view, the application judge erred in finding that the combined effect of ss. 1, 95, 96, 101 and 146 of the CJA and Rules 14 and 36 permitted him to order the taking and the preservation of the respondent's expert evidence, and to compel the injured child and his family to participate in their examination and cross-examination. Of these statutory provisions and rules, only rule 36.01 and s. 146 of the CJA need be considered as, in my opinion, Rule 14 and the other provisions of the CJA have no application to the circumstances of this appeal.

[13] Considering the plain language of rule 36.01, it does not confer any power on the court to order the preservation of evidence prior to the commencement of a proceeding, which is defined in rule 1.03(1), as an action or application. The use of the word "party" throughout Rule 36, in particular, its use in rule 36.04(1), clearly indicates that it applies only where an action [page678] has been commenced and one of the parties to the action wishes to preserve the evidence of a witness for use at trial, usually in circumstances where the proposed witness is ill or of advanced years. As no action had been commenced on behalf of the child at the time of the application, and, indeed none had been commenced at the time of the appeal, rule 36.01 conferred no power on the application judge to grant the impugned order.

[14] The Rules of Civil Procedure apply to civil proceedings. They provide the procedural framework for civil proceedings from their commencement to their conclusion. As such, the rules ordinarily have application only to ongoing proceedings, as is evident not only from their context but from the use of the word "party" throughout the rules. Although "party" is not defined in the Rules of Civil Procedure or the CJA, it is a well recognized legal term of art meaning a person by or against whom a legal proceeding is brought. However, in rule 36.04(1) an expansive definition of "party" is provided to cover a number of situations, such as where an action is brought by or against a corporation. Where it is intended that a rule apply where no proceeding has been commenced, the rule clearly says so, as in rule 7.08(1) that applies to the settlement of a claim by or against a person under disability, and rule 40.01 that permits a party to an intended proceeding to be awarded an injunctive remedy. Had the Civil Rules Committee intended that Rule 36 apply in circumstances where no proceeding has been commenced, the rule would have said that.

[15] Succinctly, the application judge could not grant the order under appeal unless he had the power to do so. Rule 36.01 does not confer that power. Therefore, the application judge did not have the power to grant the impugned order. VII

[16] In the alternative, counsel for the respondent submits that under s. 146 of the CJA, the application judge had inherent jurisdiction to grant the order. In making this submission, counsel argued that the failure of rule 36.01 to empower the court to grant an order prior to the commencement of an action is a "procedural gap" that can be cured by the application of s. 146, which I have reproduced in para. 8. In doing so, counsel has misconstrued the meaning of s. 146. As Doherty J.A. said on behalf of this court in R. v. Sztuke (1993), 1993 8494 (ON CA), 16 O.R. (3d) 559, [1993] O.J. No. 3038 (C.A.) at p. 563 O.R.:

Section 146 does not confer jurisdiction, but refers to procedural lacunae where jurisdiction has been otherwise conferred. The absence of any statutory [page679] authority permitting a trial judge to decline to enter a conviction and instead impose a discharge, is not a matter of procedure. Section 146 cannot create a jurisdiction to provide a disposition or impose a sentence which is not contemplated by the relevant legislation. The section is of no assistance to the respondent.

That rule 36.01 does not apply where no proceeding has been commenced is not a procedural gap. The absence of statutory authority enabling the court to act prior to the commencement of a proceeding is not a matter of procedure. It indicates the intention of the Civil Rules Committee to confine the application of the rule to situations where a proceeding has been commenced. Accordingly, s. 146 cannot be applied to confer the power that is not contained in the rule.

[17] Given the possibility, remote though it may be, that no proceeding would be taken by, or on behalf, of the injured child until as late as 2021, and considering the dispute about the cause of the child's injuries, it made good sense for the respondent to retain experts to explore this issue at an early stage when the evidence was fresh. Given the ages of two of the experts, it also made sense to seek to preserve their evidence through the application of rule 36.01 to counter the possibility that they would be unavailable to testify in the future. Indeed, had rule 36.01 conferred power to order preservation of evidence before the commencement of an action, no fault could have been found with the application judge's order other than his failure to order the respondent to reimburse the Sivakumar family for all costs and expenses incurred in participating in the examination of the respondents' experts. Similar situations may occur in the future. For that reason, the Civil Rules Committee may wish to consider extending the application of rule 36.01 to situations in which no proceeding has been commenced. VIII

[18] For all of the above reasons I would allow the appeal, set aside the judgment of the application judge and order that the application be dismissed. The parties have agreed that there will be no costs of the appeal.

Appeal allowed. [page680]

Notes

Note 1: Although at the time the appeal was argued no action had been brought on behalf of the child against his parents as the owner and operator of the motor vehicle in which he allegedly had been injured, prior to this application an action had been commenced against the respondent, which was the insurer of the motor vehicle, claiming accident benefits.