COURT FILE NO.: 7087/12

DATE: 2012/09/06

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MICHELLE LYNN MULLER -and- BLUEWATER RECYCLING ASSOCIATION AND JOHN BONNETT

BEFORE: JUSTICE A. D. GRACE

COUNSEL:
A. Campos Reales , for the proposed Plaintiff

S. Orr , for the Ontario Provincial Police

HEARD: September 4, 2012

ENDORSEMENT

[ 1 ] Ms. Muller was involved in a serious motor vehicle accident on January 17, 2011 (the “accident”).

[ 2 ] According to the partially redacted Accident Report her car crossed the center line of Mount Carmel Road, North Middlesex, in icy conditions and collided with a recycling truck owned by the Bluewater Recycling Association (“Bluewater”) and driven by John Bonnett.

[ 3 ] Ms. Muller was seriously injured. After removal from the vehicle, she was taken to hospital by air ambulance. Her alleged injuries are detailed in the affidavit of Maia Bent sworn June 7, 2012. The long list included a fractured skull and concussion.

[ 4 ] The Ontario Provincial Police (“O.P.P.”) attended the accident scene.

[ 5 ] Ms. Muller’s lawyer wrote to the O.P.P. and requested disclosure of the accident report. Later, Ms. Muller’s lawyer asked the Freedom of Information and Privacy office of the Ministry of Community Safety and Correctional Services (“Ministry”) to provide a copy of the entire O.P.P. file. In March 2012, limited disclosure was provided.

[ 6 ] Some information was withheld according to the Ministry’s March 22, 2012 response on the basis of various sections of the Freedom of Information and Protection of Privacy Act (“ FIPPA”). The Ministry’s lawyer, Ms. Orr, submitted only irrelevant and personal information was withheld. She conceded, however, that she had not seen the O.P.P. file. Notably, the Ministry’s letter does not inform the reader what has been withheld.

[ 7 ] Dissatisfied with the Ministry’s response, Ms. Muller’s lawyers move for production of the balance of the O.P.P. file.

[ 8 ] They maintain that the requested order should be granted either under the Rules of Civil Procedure (they rely principally on rules 37.17 and 30.10) or by exercise of the equitable remedy of pre-action discovery based on principles articulated in England in Norwich Pharmacal Co. v. Commissioners of Customs and Excise, [1974] A.C. 133 (H.L.) and in Ontario in cases such as Straka v. Humber River Regional Hospital (2001), 2000 16979 (ON CA) , 51 O.R. (3d) 1 (C.A.).

[ 9 ] Ms. Muller maintains the information requested is urgently needed to enable her to determine the whereabouts of Bluewater and Mr. Bonnett and to allow the plaintiff’s lawyers to conduct their own liability investigation (see paras. 7 and 19 of Ms Bent’s affidavit).

[ 10 ] I start with the Rules of Civil Procedure. Rule 37.17 allows a party to a proposed action to bring a motion “[i]n an urgent case” and “on the moving party’s undertaking to commence the proceeding forthwith.”

[ 11 ] In my view, neither requirement has been met. The limitation period does not expire for some time. Despite Ms. Bent’s statement to the contrary, the location of Bluewater was not difficult to discern (see the affidavit of Samantha Wilson sworn August 28, 2012) and is now known. There is no evidence any investigation has been undertaken to determine the whereabouts of Mr. Bonnett (beyond the requests of the O.P.P. and Ministry) and there is time to bring a rule 30.10 motion after the commencement of the action in the usual way. Furthermore, Ms Muller has undertaken to commence an action only “if the material supports same.”

[ 12 ] That does not mean that Ms. Muller is without a remedy. As Cronk J.A. wrote in GEA Group AG v. Ventra Group Co. (2009), 2009 ONCA 619 () , 96 O.R. (3d) 481 (C.A.) at para. 52 , “the equitable action for discovery lies in this jurisdiction and ... co-exists with the Rules of Civil Procedure .”

[ 13 ] My first consideration was procedural. No originating process has been issued against the O.P.P. In Meuwissen (Litigation Guardian of) v. Strathroy Middlesex General Hospital (2006), 40 C.P.C. (6 th ) 6 (Ont. C.A.) that failure seemed significant (see para. 9). However, it was not determinative. In certain circumstances, proceeding by way of motion rather than by an originating process will be fatal to the moving party’s claim: Lukezic v. Royal Bank of Canada 2012 ONCA 350 .

[ 14 ] This is not one of them. Given various remedial rules (see rules 1.04(1), (2), 2.01 and 2.03) and most notably, Ms. Orr’s statement that relief was opposed on substantive rather than procedural grounds, Ms. Muller’s decision to proceed by motion for equitable relief is, at most, an irregularity. I turn to the substantive issues.

[ 15 ] Ms. Orr reminded me often that a “ Norwich ” or “ Straka ” order is “an intrusive and extraordinary remedy that must be exercised with caution.” ( GEA Group, supra, at para. 85).

[ 16 ] The principle must, however, be considered in the context of the case at bar. An accident of the magnitude of this one is not simply a private matter between the drivers involved. Not only are they statutorily obligated to exchange personal information (including their name and address and that of the vehicle’s registered owner), but drivers involved are also obligated to provide same to any police officer or witness (see s. 200 of the Highway Traffic Act).

[ 17 ] Furthermore, if the O.P.P. is an “institution” within the meaning of the FIPPA, there is a presumptive right to access records it maintains subject to various statutory exemptions (see s. 10(1)). In my view, the sections relied on by the Ministry which relate to Mr. Bonnett’s privacy must give way in light of s. 200 of the Highway Traffic Act .

[ 18 ] In any event, during her submissions, Ms. Orr maintained that the information requested is either not in the O.P.P. file or is not “required to permit a prospective action to proceed” (see GEA Group, supra , at para. 85).

[ 19 ] With respect, I disagree. The Ministry has not listed the documents contained within the O.P.P. file. It is impossible for me to know what has been withheld. I do know that Mr. Bonnett’s address was redacted. At a minimum, the information sought will allow Ms. Muller to obtain his address. She was statutorily entitled to that information as already noted. However, given the severity of her injuries, it was not possible for her to seek it.

[ 20 ] As important is the fact the O.P.P.s file may provide invaluable assistance to Ms. Muller and her lawyers in determining whether there is a cause of action against anyone. Given the fact her vehicle was, it seems, in the wrong lane when the accident occurred, a liability assessment is particularly appropriate now.

[ 21 ] Those objectives are “legitimate” (see GEA Group, supra , para. 91) and establish the necessity of the relief sought. Information concerning the accident is appropriately sought from the law enforcement agency that responded and investigated its occurrence.

[ 22 ] To the extent the O.P.P. has legitimate concerns with respect to production, they have been addressed in the draft order provided for my review. For example, the O.P.P. may withhold information which compromises the interests of law enforcement. The draft order limits the retention and copying of materials provided. Information unrelated to the accident may be redacted. In my view, it is equitable on the particular facts of this case to grant the relief sought subject to those limitations and protections.

[ 23 ] An order shall issue in accordance with the paras. 1, 2, 3, 4 and 7 of the Draft Order. A copy of the order and this endorsement shall be served on the Bluewater Recycling Association, 415 Canada Avenue, Huron Park, Ontario within seven business days of the Order’s issuance and on Mr. Bonnett within seven business days of Ms. Muller’s solicitors learning of his residential address from the O.P.P. or elsewhere. In order that the proposed defendants may seek relief if they believe this order should not have been granted, service shall be personal.

[ 24 ] I should add one more observation. Motions seeking documents from third parties under rule 30.10 seem commonplace. Many of them involve motor vehicle accidents and subsequent police investigations. Those motions are usually unopposed or on consent. Ms. Orr fairly acknowledged that the content of what Ms. Muller seeks on this motion is unextraordinary. What is unusual is the time at which disclosure is requested. With respect, the timing is a product of the circumstances and consequences of the accident. While the Ministry seems to have concluded the relief sought by the proposed plaintiff is unfair and inappropriate, I respectfully disagree. An unnecessary legal proceeding may be avoided if the liability analysis is unfavourable. Alternatively, at least one step (a motion to amend) in a proceeding may be saved if an action is started. Practicality does not dictate the result but it should not be ignored.

[ 25 ] The parties filed cost outlines at the commencement of the motion. Ms. Muller seeks the all inclusive sum of $6,366.52 exclusive, it appears, of the September 4 attendance. The O.P.P. sought the all inclusive sum of $3,375.00, again exclusive of the September 4 attendance.

[ 26 ] If the parties wish to supplement the cost outlines they may make short written submissions with respect to costs, not exceeding three typed pages. Those of the proposed plaintiff shall be delivered within 14 days and those of the O.P.P. within a further 10 days of the release of this endorsement. They may be provided to me through Judges’ Administration, 80 Dundas Street, Unit “K”, 12 th Floor, London, Ontario N6A 6B2.

“Justice A. D. Grace”

Justice A. D. Grace

Date: September 06, 2012