ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 3385-11
DATE: 2012-01-16

RE: Ruth McCallum, Barry Myette and Rebecca Myette, by her Litigation Guardian, Ruth McCallum, Plaintiffs/Responding Parties.

and:

Thames Valley District School Board, Marion Moynihan, Cathy Murphy, Elaine Turner, Ross Martin, Carol Ellison and Darlene Charuk, Defendants/ Moving Parties.

BEFORE: McDermid, J.

COUNSEL:
E. Church, for the Plaintiffs/Responding Parties.

S. Noorloos, for the Defendants/Moving Parties.

HEARD: January 10, 2012.

ENDORSEMENT

[ 1 ] This is a motion to compel the 11-year-old minor plaintiff to attend for examination for discovery. Her claim is under the Family Law Act for loss of care guidance and companionship and unspecified "special damages".

[ 2 ] The action arises from a school-organized skating field trip to Oakridge Arena in London, Ontario on February 4, 2009. The plaintiff, Ruth McCallum, attended as a volunteer to assist students, one of whom was her daughter, the minor plaintiff, Rebecca Myette. Ruth McCallum alleges that while skating at the arena she was knocked to the ice by a boy who skated into her. The statement of claim alleges that he was one of a group of boys who exhibited "boisterous and disorderly behaviour, including racing and erratic skating". As a result, she alleges that her head struck the ice and she sustained physical and psychological injuries, including but not limited to a brain injury.

[ 3 ] Prior to examinations for discovery, plaintiffs’ counsel presented a discovery plan to defence counsel on or about September 27, 2011. Paragraph 9, under the heading Examination for Discovery, reads:

The plaintiffs, Ruth McCallum and Barry Myette, will be examined on October 18, 2011. It is anticipated that 5 hours will be required for the Examination for Discovery of the Plaintiffs.

[ 4 ] The notice of examination delivered by defence counsel was addressed to "The Plaintiff, Ruth McCallum"; "The Plaintiff, Barry Myette"; and "The Plaintiff, Rebecca Myette, by her litigation guardian, Ruth McCallum". It did not mention the plaintiff, Rebecca Myette personally.

[ 5 ] According to the affidavit of Sharon Smiley, sworn January 9, 2012, during the examination for discovery of Ruth McCallum, defence counsel indicated his intention to examine Rebecca Myette, who was then nine years old, rather than her litigation guardian. Counsel for the plaintiffs refused to produce Rebecca Myette. "Defence counsel then posed questions to Ruth McCallum in her capacity as litigation guardian for Rebecca Myette."

[ 6 ] Defence counsel deposes that he always intended to examine Rebecca Myette and that the notice of examination "inadvertently" included the words, "by her litigation guardian, Ruth McCallum". However, the discovery plan provides only for the examination for discovery of the plaintiffs Ruth McCallum and Barry Myette. No mention is made of examining Rebecca Myette in person. There is no evidence that the discovery plan was updated.

[ 7 ] The onus is upon the plaintiffs to show on a balance of probabilities why the minor plaintiff should not be examined for discovery. [1] While Ruth McCallum does not wish her daughter to be examined for discovery because she "is too young to be examined for discovery", there is no suggestion that she is not otherwise competent to give evidence. Also, defence counsel has expressed a willingness to accommodate any reasonable requests to allay concerns about the child's examination.

[ 8 ] Counsel for the plaintiffs submits that the discovery of Ruth McCallum in her capacity as litigation guardian was sufficiently extensive to quantify Rebecca Myette's claim under the Family Law Act and that there is no need to question her in person. The plaintiffs’ position is that the relevant questions have been asked and answered.

[ 9 ] However, the defence position is that from the evidence given by Ruth McCallum on her examination for discovery, it appears that Rebecca Myette was present at the time of her mother's injury and that Rebecca Myette "… will likely have evidence to offer as to the circumstances surrounding her mother's injury and the extent to which the students present on the ice were being supervised by the teachers and the parent volunteers."

[ 10 ] In response, the position of the plaintiffs is that there are other witnesses, "including employees at the arena, teachers and other parent supervisors who will be in an equal or better position than Rebecca to comment on the degree of supervision at the arena on February 4, 2009."

[ 11 ] As a minor, Rebecca Myette is "a party under disability" to whom r. 7 applies. Rule 7.05 (1) states:

Where a party is under disability, anything that a party in a proceeding is required or authorized to do maybe done by the party's litigation guardian.

[ 12 ] Therefore, the litigation guardian may be examined for discovery in place of the minor.

[ 13 ] This is confirmed by r. 31.03 (5):

Where an action is brought by or against a party under disability,

(a) the litigation guardian may be examined in place of the person under disability; or

(b) at the option of the examining party, the person under disability may be examined if he or she is competent to give evidence…

[ 14 ] Rule 31.03(1) provides in part:

A party to an action may examined for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court …

[ 15 ] Rule 31.05 provides:

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; or

(b) on behalf of or in place of whom, or in addition to whom, a person is to be examined.

[ 16 ] Rule 29.1.03 provides that where a party to an action intends to obtain evidence under rule 31, (examination for discovery), the parties to the action shall agree to a discovery plan. As per r. 29.1.03(3)(d), in such case the discovery plan shall include "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 examination…”

[ 17 ] Pursuant to r. 29.1.04, "The parties shall ensure that the discovery plan is updated to reflect any changes in the information listed in sub rule 29.1 03 (3)." This was not done.

[ 18 ] Rule 29.1.05 provides:

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 updated discovery plan in accordance with this Rule.

[ 19 ] I am also cognizant of the provisions of r. 31.06, which outlines the proper scope of an examination and provides that no question may be objected to on the ground that "(a) the information sought is evidence".

[ 20 ] Counsel for the defendants submits that a minor plaintiff may be examined for discovery, subject to terms, even though his or her litigation guardian has been examined. However, in the Davis [2] case on which the defendants rely, the Master observed with respect to the litigation guardian that, "… there was no understanding or agreement that she was being examined in place of the infant plaintiffs”.

[ 21 ] In my opinion, when counsel for the plaintiffs refused to produce the minor plaintiff, defence counsel proceeded to examine Ruth McCallum in her capacity as litigation guardian and, as set forth in paragraph 9 of the affidavit of Sharon Smiley, elicited sufficient information to quantify the minor infant’s claim under the Family Law Act .

[ 22 ] From the material before me, I conclude that the request to examine the minor plaintiff is not required to establish or quantify her claim under the Family Law Act .

[ 23 ] There is no submission that the defendants will be prejudiced if their motion is denied. In fact, I conclude that there will be no such prejudice.

[ 24 ] I find that the defendants ought not to be permitted to examine the minor plaintiff for discovery for the following reasons:

a. In my opinion, the claim of a minor plaintiff for damages for loss of care, guidance and companionship under the Family Law Act does not equate to a claim by a minor plaintiff for damages for personal injuries sustained in an accident in terms of weighing in favour of an order requiring the minor plaintiff to be examined for discovery.

b. Defence counsel failed to have included in the discovery plan or in the notice of examination the fact that he wished to examine the minor plaintiff rather than her litigation guardian.

c. Defence counsel failed to update the discovery plan in this regard.

d. Defence counsel has examined the minor plaintiff's litigation guardian and has obtained sufficient evidence to quantify the minor plaintiff's claim under the Family Law Act .

e. Although defence counsel seeks to obtain evidence from the minor plaintiff about how her mother's injuries were occasioned, as appears to be permitted by r. 31(06)(a), there are other witnesses readily available to do so.

f. As a result, there will be no prejudice to the defence if the minor plaintiff is not examined for discovery.

[ 25 ] Accordingly, I would exercise my discretion under r. 29.1.05 and dismiss the motion.

[ 26 ] However, there is one proviso to this ruling. In my opinion, it would not be fair for the plaintiffs to deny the defence an opportunity to examine the minor plaintiff and then call the minor plaintiff as a witness at trial to testify about the circumstances under which her mother's injuries occurred. Therefore, if the plaintiffs are not prepared to give an undertaking to the defendants within 30 days that the minor plaintiff will not be called as a witness at trial, the defendants shall have the right to examine her for discovery on this issue.

[ 27 ] If counsel are unable to agree about costs, they may make written submissions of not more than five pages within 30 days. At the end of that time, I shall make a decision based on the material before me.

“Mr. Justice D.R. McDermid”

Mr. Justice D. R. McDermid

Date: January 16, 2012.

[1] Michriky v. Hack , 2005 CarswellOnt 962 (Ontario Master)

[2] Davis (Litigation Guardian of), v. McFarlane 1997 CarswellOnt 3232 (Ontario Master)