SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-10-400547

CITATION: Sultana v. Veley, 2012 ONSC 395

DATE: 2012/1/16

RE: Sultana v. Veley et al.

BEFORE: MASTER GRAHAM

HEARD: January 10, 2012

COUNSEL:
B. Rumble for the plaintiff

L. Rapley for the defendants Paul Veley, 570059 Ontario Ltd. o/a Veley Enterprises Ltd. o/a Robertson Custom Elevators, 985314 Ontario Ltd. and 4494105 Ontario Ltd. o/a ThyssenKrupp Northern elevator Corporation

G. Nagy for the defendants Delta Elevator (Barrie) Limited, Simcoe Elevator & Lift Co. Ltd. and 1067674 Ontario Ltd. o/a Elevator One Inc.

L. Roscoe for the defendant 660448 Ontario Ltd. o/a Hal-Brant Elevator Services Ltd.

REASONS FOR DECISION

(Motions by plaintiff and defendants to determine order of examinations for discovery)

[ 1 ] This endorsement applies both to the plaintiff’s motion and the cross motion of the defendants represented by Ms. Rapley (“the Veley/ThyssenKrupp defendants”).

[ 2 ] The plaintiff’s action is for damages for personal injuries sustained on April 16, 2008 when she was ascending from the basement to the second floor of her home in a residential elevator and the elevator platform gave way causing her to drop violently to the ground. The main issue on both motions is whether the plaintiff may conduct her examinations of the defendants before she herself is examined or whether the plaintiff must be examined before the defendants.

[ 3 ] On October 21, 2010, counsel for the plaintiff confirmed the dates of June 22 and 23 for examinations for discovery of all parties. On March 15, 2011, counsel for the plaintiff proposed a schedule whereby the defendants would be examined on those dates and, on the basis that it appeared that examinations of all parties could not be completed, also suggested that the plaintiff be examined on June 24, 2011.

[ 4 ] On March 23, 2011, counsel for the plaintiff stated that he had been advised by counsel for the defendant ThyssenKrupp that that defendant could only attend to be examined on June 23, 2011, changed the schedule of the defendants’ examinations accordingly and also proposed further dates for the plaintiff’s examination. Counsel for the plaintiff sent follow-up letters in this regard on April 4 and 7, 2011.

[ 5 ] On April 19, 2011, plaintiff’s counsel provided defendants’ counsel with a draft discovery plan which provided for the defendants to be examined first in accordance with the schedule set out in his March 23, 2011 letter, along with an unsworn affidavit of documents. Specifically, the discovery plan provided that the defendants be examined on June 22 and 23, 2011 and that the plaintiff be examined on July 15, 2011. This discovery plan also provided that the parties serve draft affidavits of documents by May 23, 2011 and sworn affidavits of documents by June 22, 2011. On the same day, plaintiff’s counsel served notices of examination on the defendants with dates corresponding to those in the discovery plan. The plaintiff did not serve a sworn affidavit of documents until June 15, 2011.

[ 6 ] The plaintiff’s discovery plan was titled “examination for discovery timetable” but as it conforms to the requirements for a discovery plan in rule 29.1.03(3), it is a discovery plan under that rule.

[ 7 ] The moving defendants served their sworn affidavits of documents and their own notices of examination on June 9, 2011. In the letter with which these documents were served, counsel stated that “despite previous arrangements”, as her clients were the first to serve sworn affidavits of documents, they would not attend to be examined for discovery until the examinations of the plaintiff and her parents (named as third parties) were substantially complete.

[ 8 ] The applicable Rules of Civil Procedure are as follows:

31.04(1) A party who seeks to examine a plaintiff for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after delivering a statement of defence and, unless the parties agree otherwise , serving an affidavit of documents. [emphasis added]

(2) A party who seeks to examine a defendant for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after,

(a) the defendant has delivered a statement of defence and, unless the parties agree otherwise , the examining party has served an affidavit of documents [emphasis added]; or

(b) the defendant has been noted in default.

(3) The party who first serves on another party a notice of examination under rule 34.04 or written questions under rule 35.01 may examine first and may complete the examination before being examined by another party, unless the court orders otherwise . [emphasis added]

31.05 Unless the court orders or the parties agree otherwise, where more than one party is entitled to examine a party or other person for discovery without leave, there shall be only one oral examination, which may be initiated by any party adverse to the party, (a) who is to be examined; . . .

29.1.03(1) Where a party to an action intends to obtain evidence under any of the following Rules, the parties to the action shall agree to a discovery plan in accordance with this rule:

1. Rule 30 (Discovery of documents)

2. Rule 31 (Examination for discovery) . . . .

(2) The discovery plan shall be agreed to before the earlier of

(a) 60 days after the close of pleadings or such longer period as the parties may agree to; and

(b) attempting to obtain the evidence.

(3) The discovery plan shall be in writing, and shall include,

(a) the intended scope of documentary discovery under rule 30.02 taking into account relevance, costs, and the importance and complexity of the issues in the particular action;

(b) dates for the service of each party’s affidavit of documents under rule 30.03.

© information respecting the timing, costs and manner of the production of documents by the parties and any other persons;

(d) the names of persons intended to be produced for oral examination for discovery under Rule 31 and information respecting the timing and length of the examinations; and

(e) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action. . . .

29.1.05 On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule.

[ 9 ] The Veley/ThyssenKrupp defendants rely on rules 31.04(1), (2) and (3) to oppose the plaintiff’s motion on the basis that they, being the first parties to have served sworn affidavits of documents, were the first parties entitled to serve notices of examination and accordingly, their notices of examination entitle them to examine first.

[ 10 ] The plaintiff submits that the defendants had all either expressly or impliedly agreed to proceed in accordance with her draft discovery plan, which did not require sworn affidavits of documents until the first day of examinations for discovery, and accordingly, that discovery plan combined with her notices of examination entitles her counsel to examine the defendants first.

[ 11 ] Under rules 31.04(1) and (2), a party may only serve a notice of examination after delivering a pleading and “unless the parties agree otherwise”, serving an affidavit of documents. The defendants submit that compliance with this rule is essential to create the right to examine first based on service of the first notice of examination under rule 31.04(3).

[ 12 ] The requirement in rules 31.04(1) and (2) to serve an affidavit of documents in order to legitimize the service of a notice of examination is subject to the exception “unless the parties agree otherwise”. Rule 29.1.03 states that parties seeking to obtain evidence under various rules, including by way of examinations for discovery under rule 31, shall agree to a discovery plan including dates for service of affidavits of documents and information respecting the timing of examinations for discovery. The parties’ agreement to a discovery plan as required by rule 29.1, providing for a procedure other than that contemplated by rule 31.04, amounts to them “agreeing otherwise” and the provisions of any such agreement supersede the requirements of rule 31.04.

[ 13 ] The issue on this motion is therefore whether the defendants involved in the motion agreed to the plaintiff’s proposed discovery plan such that they “agreed otherwise” to a procedure for scheduling the examinations for discovery that was different than that in rule 31.04.

[ 14 ] The defendant Paul Veley was represented by different counsel until the delivery of his current counsel’s notice of change of solicitors on May 20, 2011. On April 21, 2011, his previous counsel agreed to the plaintiff’s discovery plan despite the fact that he had served Veley’s sworn affidavit of documents on April 14, 2011. Accordingly, the defendant Veley agreed to proceed in accordance with the discovery plan instead of rule 31.04.

[ 15 ] The defendants Robertson Custom Elevators and 985314 Ontario Ltd., which are two of the Veley/ThyssenKrupp defendants, did not defend the action until their current counsel delivered a statement of defence on their behalf on June 9, 2011. Their counsel submits that because they had not defended the action when plaintiff’s counsel provided his discovery plan, they could not be bound by that plan. However, they have the same counsel as ThyssenKrupp, which had defended and which was represented by counsel throughout and they are relying on ThyssenKrupp’s affidavit of documents as their own. They are therefore in the same position as ThyssenKrupp on this motion.

[ 16 ] Counsel for the plaintiff first proposed a schedule for examinations for discovery, whereby the defendants would be examined before the plaintiff, in his letter of March 15, 2011. As of March 23, 2011, the only objection from counsel for ThyssenKrupp was that his client could only attend to be examined on June 23, 2011 at 3:00 p.m.; counsel at that time made no objection to the plaintiff being examined after the defendants even though it was clear from the correspondence that that was plaintiff’s counsel’s intent. Plaintiff’s counsel then incorporated the schedule from his March 23, 2011 letter into his proposed discovery plan circulated on April 19, 2011 but counsel for the Veley/ThyssenKrupp defendants did not object to this discovery plan until her letter of June 9, 2011.

[ 17 ] To summarize, counsel for the Veley/ThyssenKrupp defendants did not object to the plaintiff’s proposed discovery schedule until 12 weeks after that schedule was first proposed on March 15, 2011, seven weeks after the plaintiff’s discovery plan was circulated on April 19, 2011 and 13 days before examinations for discovery were to commence. In failing to respond to the plaintiff’s discovery plan prior to June 9, 2011, defendants’ counsel had acquiesced to the terms of that plan, which she was well aware of, given the acknowledgment in her letter that there were “previous arrangements” with respect to the timing of examinations for discovery.

[ 18 ] Counsel for the Veley/ThyssenKrupp defendants relied on my decision in Ambrose v. Anderson , 2011 CarswellOnt 7742 to argue that the fact that the plaintiff was the first to propose a discovery plan did not give her any greater right to conduct examinations for discovery first. I would distinguish Ambrose from this case on the basis that in this case, the parties agreed to proceed in accordance with the plaintiff’s discovery plan, while in Ambrose, the parties clearly did not.

[ 19 ] I conclude that the Veley/ThyssenKrupp defendants had by their conduct given their implied agreement to the plaintiff’s discovery plan.

[ 20 ] Two sets of defendants other than the Veley/ThyssenKrupp defendants also opposed the plaintiff’s motion.

[ 21 ] On April 26, 2011, the Hal-Brant defendants, which have still not delivered a sworn affidavit of documents, served a notice of examination consistent with the schedule in the plaintiff’s discovery plan. By their conduct, these defendants agreed to proceed in accordance with that discovery plan.

[ 22 ] On June 6, 2011, the Delta Elevator defendants, which to that point had not served a sworn affidavit of documents, served notices of examination in accordance with the plaintiff’s discovery plan. In so doing, and in the absence of any prior communication to the contrary, these defendants also agreed to proceed in accordance with that discovery plan. Following the correspondence of June 9, 2011 from counsel for the Veley/ThyssenKrupp defendants enclosing their sworn affidavit of documents and stating that they were insisting on examining first, the Delta Elevator defendants delivered their sworn affidavit of documents on June 13, 2011, but at that point, they had by their conduct agreed to the plaintiff’s discovery plan.

[ 23 ] In short, both the Hal-Brant defendants and the Delta Elevator defendants, in serving notices of examination corresponding with the plaintiff’s discovery plan before serving sworn affidavits of documents, communicated their agreement with that discovery plan and agreed to proceed otherwise than in accordance with rule 31.04 as to the timing of examinations.

[ 24 ] For these reasons, I conclude that the defendants agreed to proceed in accordance with the plaintiff’s discovery plan of April 19, 2011 and the examinations for discovery shall proceed in accordance with that plan.

[ 25 ] In addition to the issue of which party is entitled to conduct examinations for discovery first, the moving parties also raised other issues on their motions.

[ 26 ] With respect to item 3 in the plaintiff’s notice of motion, the plaintiff now acknowledges that the defendant ThyssenKrupp produced a sworn affidavit of documents before the motion record was served.

[ 27 ] With respect to item 4 in the plaintiff’s notice of motion, the only issue is whether the defendant Veley must disclose various design drawings bearing his stamp in Schedule C of his affidavit of documents. Counsel for Veley agreed during argument to have him do so, and the court so orders.

[ 28 ] With respect to item 5 in the plaintiff’s notice of motion, counsel for Hal-Brant Elevator Services Ltd. acknowledges that her client has not delivered a sworn affidavit of documents and the court hereby orders that Hal-Brant do so within 30 days. Plaintiff’s counsel informs the court that Hal-Brant’s Schedule A documents were produced after the motion record was served.

[ 29 ] With respect to the motion of the Veley/ThyssenKrupp defendants for production of the plaintiff’s schedule A documents, the plaintiff agrees to do so within 30 days and the court so orders.

Costs

[ 30 ] Costs outlines were provided by counsel for the plaintiff and for the Hal-Brant defendants. The plaintiff seeks costs of $6,751.95, which includes $1,175.18 for disbursements and $776.77 for HST. The costs outline from the Hal-Brant defendants indicates that if successful, those defendants would have sought costs of $4,733.57, including HST of $544.57.

[ 31 ] The plaintiff was successful on the issue of the order in which examinations for discovery should proceed, and, as this issue occupied almost all of the material and the argument, the plaintiff should be awarded the costs of the motion. The court’s objective when fixing costs is to award an amount that is fair and reasonable for the unsuccessful party or parties to pay, rather than to be strictly bound by the successful party’s mathematical calculation of costs. (See: Boucher v. Public Accounts Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.))

[ 32 ] The only defendants that provided a costs outline in accordance with rule 57.01(6) would have been seeking costs of $4,733.57, although counsel for those defendants acknowledged some duplication of effort between counsel because she was new to the file. However, I also note that these defendants did not prepare a factum, nor did their costs outline include any amount for disbursements.

[ 33 ] As the other defendants responding to the motion did not submit costs outlines, they have not provided any basis on which I could determine their assessment of what amount for costs would be reasonable. On reviewing the two costs outlines that were submitted, and accepting the arguments of the defendants that the plaintiff should not recover the costs of preparing for and attending at the defendants’ examinations that it was clear would not be proceeding, I assess the plaintiff’s recoverable costs of the motion to be $5,000.00 inclusive of HST and disbursements. The defendants responding to the motion shall jointly pay those costs within 30 days. If the defendants cannot agree to an apportionment of those costs among themselves, they may arrange to address any issues before me.

Master Graham

DATE: January 16, 2012