COURT OF APPEAL FOR ONTARIO

CITATION: Ambrose v. Zuppardi, 2013 ONCA 768

DATE: 20131218

DOCKET: C56443

Epstein, Lauwers and Pardu JJ.A.

BETWEEN

Susan Ambrose, The Estate of Murray Ambrose, by his Estate Trustee Susan Ambrose, and Benjamin David Ambrose

Plaintiffs/Respondents

and

Giuseppe Zuppardi, Michael Guthenberg, DTF Trucking Inc., Ryder Truck Rental, Mimi Chan, and Henry Cheung

Defendants/Appellants

Christopher Chekan, for the appellants

Justin Linden and Rachel Radomski, for the respondents

Mark Veneziano and Ren Bucholz, for non-party, Dr. Lam

Heard: December 11, 2013

On appeal from the endorsement of Justice Carole J. Brown of the Superior Court of Justice, dated November 23, 2013.

ENDORSEMENT

[1] In this action the plaintiffs seek damages arising out of two motor vehicle accidents in which Murray Ambrose, now deceased, sustained injuries. The appellants are three of the defendants. They appeal the order of Brown J. dismissing their motion to examine a non-party, Dr. Lam, the medical doctor who looked after Mr. Ambrose while he was in a hospital emergency room following the second accident.

[2] The motion judge dismissed the motion for two reasons. First, she held that the examination of Dr. Lam would be fruitless given the doctor had provided a sworn affidavit indicating that he had no independent recollection of his treatment of Mr. Ambrose and that anything that could be relevant was recorded in his clinical notes and records. They have been produced. Second, the motion judge found the appellants' motion to be premature as discoveries had not yet been completed.

[3] A preliminary issue has been raised as to whether the order under appeal is final or interlocutory.

[4] The appellants argue that the order below is final. They rely on this court's decision in Smerchanski v. Lewis (1980), 1980 CanLII 1699 (ON CA), 30 O.R. (2d) 370 (C.A.) in which the plaintiff appealed from an order quashing two subpoenas against non-parties. In concluding that the order on appeal was a final order, Arnup J.A. adopted the reasoning in this court's earlier decision in Guaranty Trust Co. of Canada. v. Fleming, 1946 CanLII 65 (ON CA), [1946] O.R. 817 (C.A.), at pp. 828-29, that such an order "finally and absolutely disposes of the right of the [non-party] to refuse to attend and be examined for discovery by counsel for the respondents."

[5] However, in decisions such as Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 28 C.P.C. (4th) 16 (Ont. C.A.), Smerchanski has been weakened. In Sun Life the motion judge had quashed a summons of a non-party witness because it did not appear that the witness had any evidence that could not be obtained from the parties to the action. This court quashed the appeal from that order on the basis that it was interlocutory. It reasoned that the information sought may be available from the parties themselves. Weiler J.A. expressed the rationale as follows. "If, after examining the parties, counsel for York Ridge feels it has been frustrated in its pursuit of information it would be able to bring a further motion to obtain the information…. The order quashing the subpoena to Mr. Swartz was therefore an interlocutory order because it did not finally dispose of the issue between Swartz and the party seeking to examine him."

[6] Smerchanski was further weakened in the subsequent decision in Royal Trust Corporation v. Fisherman (2001), 2001 CanLII 4080 (ON CA), 55 O.R. (3d) 794 (C.A.), in which this court, following Sun Life, emphasized that Smerchanski does not stand for the proposition that all orders in which the court denies a request to obtain information from non-parties are final. Simply put, if the motion requesting information is dismissed where the information sought from the non-party may still be available from the parties to the action, the order is interlocutory.

[7] It is of note that in Royal Trust, Finlayson J.A. went out of his way to highlight that the judgment in Smerchanski had been criticized on the basis that it does not "sit well" with prior jurisprudence. He expressed the view that Smerchanski does not stand for the proposition that all orders directed to a non-party are final and stated that the principle expressed in that case should not be further expanded.

[8] We agree with this view. Smerchanski should be restricted to cases in which there are like circumstances – a ruling made in the course of a trial quashing a subpoena of a witness in circumstances where the information sought to be obtained from the witness cannot be obtained from the parties' themselves.

[9] It follows, as Finlayson J.A. counselled, that the reasoning of the motion judge in making the order under appeal is relevant to whether the order is final or interlocutory. Here, the motion judge dismissed the motion to a large extent on the basis that since discoveries were not yet complete, it remained open to the appellants to question the parties about Dr. Lam's treatment of Mr. Ambrose. Simply put, the door to obtaining the information sought from the parties themselves, remains open.

[10] Based on the principles that emerge from Sun Life and Royal Trust, the order under appeal is interlocutory and the appeal lies to the Divisional Court, with leave.

[11] For these reasons the appeal is quashed, without prejudice to the appellant's right to seek leave to appeal to the Divisional Court in Toronto. The time to seek leave to appeal is extended by 60 days from the date this order is issued and entered.

[12] The respondents and Dr. Lam are entitled to their costs in the amount of $1,000 including disbursements and H.S.T.

"Gloria Epstein J.A."

"P. Lauwers J.A."

"G. Pardu J.A."