COURT FILE AND PARTIES
COURT FILE NO.: 4722/11
DATE: 2012/09/19
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: JENNIFER PURDY (Plaintiff) -and- STEPHANIE ISARDI (Defendant)
BEFORE: JUSTICE H. A. RADY
COUNSEL:
L. Delsignore, for the plaintiff
S. Drozd, for the Defendant
HEARD: September 14, 2012
ENDORSEMENT
Introduction
[ 1 ] This is a personal injury action arising from a motor vehicle accident. The defendant is being defended by her insurer, State Farm Mutual Automobile Insurance Company pursuant to her automobile liability policy.
[ 2 ] The plaintiff’s examination for discovery was scheduled to proceed this past summer. Counsel for the defendant asked counsel opposite if a representative of the insurer would be permitted to attend the plaintiff’s examination as an observer. The request was refused. This motion followed.
[ 3 ] In support of the motion, the claims adjuster with carriage of the matter deposed that he wishes to attend the discovery “to observe the plaintiff, hear her testimony and assess her case in terms of settlement possibilities and defence strategies.”
[ 4 ] In response, a lawyer from the plaintiff’s law firm filed an affidavit in which she deposed as follows:
• As a result of the motor vehicle collision, the plaintiff suffered and remains suffering from the following impairments and injuries: whiplash injuries to her neck, hips and shoulders; headaches; chronic pain; driving anxiety; sleep disturbances; and straining and tearing of the muscles and ligaments throughout her body...
• It is also my understanding that after speaking with [plaintiff’s counsel] Ms. Foreman, her refusal to consent to [defence counsel] Mr. Masterson’s request was due, in part, to not wanting her client to feel any more undue pressure than that which already exists at a discovery. Further, the discovery process is already stressful for a plaintiff, and Ms. Foreman did not believe it to be in the best interest of her client to have another person in the room whom [sic] is not entitled to be there.
[ 5 ] No affidavit from the plaintiff was proffered nor was there any medical evidence addressing the issue of the additional stress or anxiety the plaintiff might experience if the adjuster were present.
The Law
[ 6 ] The Rules of Civil Procedure are silent on the issue of who may be present during an examination for discovery. However, the parties agree that there is authority for the proposition that a party may be present during the discovery of the party opposite or of a co-party. See Baywood Paper Products Ltd. v. Paymaster Cheque Writers (Canada) Ltd. (1986), 1986 2699 (ON SC) , 57 O.R. (2d) 229 (Dist. Ct.) and Lesniowski v. H.B. Group Insurance Management Ltd., [2003] O.J. No. 5263 (S.C.J.) .
[ 7 ] The moving party submits that the insurer, while not a named party, is the real party in interest. The insurer appoints and instructs defence counsel and is liable to satisfy any judgment (up to its policy limits). The moving party relies on several decisions from New York including Cavuoto v. Smith 108 Misc. 2d 221 and Thrasher v. United States Liability Insurance Company 19 N.Y. 2d 159, decisions from 1981 and 1967 respectively. A third decision from 1966 titled Bennett v. The Troy Record Company 25 A.D. 2d 799 is also offered.
[ 8 ] They stand for the proposition that an insurer, in litigation such as this, is the “real party in interest and the insured is generally only a nominal party.” Consequently, “the insurer has a right to be present at every adversary stage of the proceeding.”
[ 9 ] The responding party stresses that State Farm is a non-party and generally speaking, non parties are not permitted to attend an examination for discovery, subject to certain exceptions. In S. & M. Brands Inc. v. Paul , 2003 FC 1035 () , 2003 F.C. 1035 the court permitted a non-party to attend a discovery. Blais J. cited Ormiston v. Matrix Financial Corp., 2002 SKQB 257 () , [2002] S. J. No. 383 (Sask. Q.B.) which summarized the general principles applicable to the presence of non-parties at examinations for discovery as follows:
Only the parties and their respective counsel, or in the case of the corporation, its agent, may attend an examination for discovery unless the parties have consented to the presence of a non-party, or the examining officer has granted the non-party leave to be present. In this jurisdiction, the local registrar or deputy registrar would normally be the examining officer, and failing them, a judge of this court.
The examining officer and/or judge may exercise his or her discretion by granting leave for a non-party to assist at an examination in any of the following circumstances, which are not intended to constitute an exclusive list or to limit the discretion of aforementioned persons:
(a) where the level of expert knowledge, technical, scientific or otherwise, relevant to the issues in an action is beyond counsel and therefore legal counsel may be unable to conduct a proper examination without the assistance of an expert, specialist or technician. For example, the calculation of damages in a personal injury action is a matter that counsel should be able to address and therefore the presence of an accountant normally would not be permitted at an examination. The qualification of the expert assistant need not meet the thresholds applicable to experts testifying at trial;
(b) a non-party who is not a professional expert concerning a particular complex issue before the court but who has the knowledge or abilities that will make the discovery process run smoothly and expeditiously, usually will be allowed to attend an examination for discovery in the capacity of an expert assistant. The ability to manage documents in an action involving a substantial number of documents, or familiarity with financial records, may be sufficient to warrant such person being given leave to assist at an examination;
(c) where a party requires the assistance of a non-party in special circumstances; for example, an aged mother might be accompanied by her son or daughter.
The burden of establishing that a specific non-party should be allowed to attend at an examination for discovery rests with the party seeking the non-party’s assistance. In most circumstances an affidavit setting out the applicant’s needs, counsel’s concerns and how the non-party can assist will be essential.
Where the applying party has met the requirements set forth in paragraphs 2 and 3, the burden of proving prejudice or other ground for excluding the non-party rests with the party opposing his or her inclusion for the examination for discovery process.
[ 10 ] The plaintiff submits that the adjuster does not fall into any of the categories enunciated. She relies on a New Brunswick decision called David v. Societe Cooperative de Lameque Ltee. (1993), 1993 15175 (NB KB) , 143 N.B.R. (2d) 93 , in which an adjuster was not permitted to attend the plaintiff’s examination for discovery, his presence not having been shown to be necessary due to technical complexity or to secure the ends of justice.
[ 11 ] The plaintiff emphasizes that if I were to permit the adjuster to be present, it will become an established part of not only personal injury practice but other areas as well. It is suggested that such a ruling would “open the floodgates” to permitting non-parties to attend discoveries, leading to delay and interference with the rights of litigants.
Analysis
[ 12 ] The defendant’s reliance on New York authority is misplaced. The decisions are very dated and it is not clear to me that its principles reflect modern practice. However, the plaintiff’s concerns strike me as overstated.
[ 13 ] I do not consider it necessary to decide if the insurer is in fact a non-party. Assuming it is, the issue is whether in this case, the adjuster should be permitted to attend the plaintiff’s discovery. He does not fall into any of the categories identified by Klebuc J. in Ormiston but those categories are not exclusive nor do they fetter the discretion of the judicial officer hearing the request.
[ 14 ] The adjuster has deposed to the reason why he wishes to attend. His reasons are rational and not unreasonable given the nature of the plaintiff’s alleged injuries. A lawyer’s report or a copy of the transcript cannot capture subtleties, such as non-verbal communication, that personal observation affords. On the other hand, there is an absence of compelling evidence that this plaintiff will be upset, feel harassed or intimidated if he were present. There is only a vague concern expressed, second hand, about the potential for increased stress.
[ 15 ] In the circumstances, I would permit the adjuster to attend the plaintiff’s discovery. He is to be an observer only and is not to participate in the questioning by counsel.
[ 16 ] Given the somewhat scant case law on the issue, I do not consider this to be a case for costs.
“ Justice H. A. Rady”
Justice H. A. Rady
Date: September 19, 2012