ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-08-00368597
DATE: 20121206

B E T W E E N:

ANDREA PYMAN, SHANE PYMAN, BLAKE PYMAN and pyman video productions inc. P laintiffs/Respondents - and - suzanne padt, robert padt, mervin boyko, the regional municipality of halton, the corporation of the town of halton hills, her majesty the queen in right of ontario, as represented by the ministry of transportation, halton regional police service boarD, bernard (bernie) verrette and the dominion of canada general insurance company Defendants/Appellants

Richard H. Shekter , for the P laintiffs/Respondents
Amelia M. Leckey , for the Defendant/Appellant Mervin Boyko

HEARD: October 29, 2012

STEVENSON J.

REASONS FOR DECISION

Introduction

[ 1 ] Rick Pyman ("Mr. Pyman") sustained fatal injuries in a motor vehicle accident that occurred on March 5, 2007. The plaintiff, Andrea Pyman ("Ms. Pyman") was the spouse of Mr. Pyman at the time of his death. The couple had two children, Shane Pyman and Blake Pyman, who are also plaintiffs in this action. The plaintiff, Pyman Video Productions Inc. ("Pyman Video"), was one of several companies that Mr. Pyman owned shares in at the time of his death. Mr. Pyman was the sole shareholder of Pyman Video and was also one of its employees.

[ 2 ] Ms. Pyman has made a claim for damages under the Family Law Act , R.S.O. 1990, c. F.3 and claims for the loss of guidance, care and companionship and for financial support that she would have received from Mr. Pyman.

[ 3 ] The defendant, Mervin Boyko ("Mr. Boyko"), brought a motion with respect to refusals given by Ms. Pyman on her examination for discovery. He sought to have Ms. Pyman re-attend an examination for discovery to answer these refusals at her own cost, and he sought that information and documentation requested by Mr. Boyko's experts at Soberman LLP ("Soberman"), be provided by Ms. Pyman. Mr. Boyko contends that the information and documentation relating to these refusals is necessary to assess the claims for damages of the plaintiffs. He further submits that it would be unfair to require him to proceed to trial without having an opportunity to review the information and documentation.

[ 4 ] At the hearing of the motion, Master Haberman refused to order Ms. Pyman to answer what Mr. Boyko deemed as refusals, she refused to order Ms. Pyman to attend at a further examination for discovery and she refused to order the production of information and documents requested by Mr. Boyko's expert.

[ 5 ] Mr. Boyko seeks on this appeal that the order of Master Haberman be set aside as it relates to the questions listed as items 4 and 15 in the undertakings chart of the examination for discovery of Ms. Pyman; an order that Ms. Pyman re-attend on examination for discovery within 60 days at her own expense to answer the questions listed as items 4 and 15 in the undertakings chart, including all questions arising there from; that the order of Master Haberman be set aside as it relates to the documents listed in paragraphs 16 to 20 in the Soberman letter dated January 18, 2012; and an order that Ms. Pyman produce the documents listed in paragraph 16 to 20 of the Soberman letter.

[ 6 ] The grounds of Mr. Boyko's appeal are that Master Haberman refused to order answers to questions asked on the examination for discovery of Ms. Pyman that are relevant to the calculation of the claims for loss of dependency and that Master Haberman refused to order the production of business documents that are relevant to the calculation of the claims for loss of dependency.

Standard of Review

[ 7 ] The parties are in agreement that the appropriate standard of review on an appeal of a master’s order is whether the master made an error of law or exercised his or her discretion on wrong principles or misapprehended the evidence such that there is a palpable and overriding error. See: Zeitoun v. Economical Insurance Group , 2008 20996 (ON SCDC) , [2008] O.J. No. 1771 (Div. Ct.) at para. 40 , aff’d 2009 ONCA 415 , [2009] O.J. No. 2003.

Relevant Rules of Civil Procedure

[ 8 ] The relevant Rules in the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “ Rules ”) on this appeal are:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1) .

30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document. R.R.O. 1990, Reg. 194, r. 30.02 (1) ; O. Reg. 438/08, s. 26.

31.06 (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or

(c) the question constitutes cross-examination on the affidavit of documents of the party being examined. R.R.O. 1990, Reg. 194, r. 31.06 (1) ; O. Reg. 438/08, s. 30 (1).

Refusals and Undertakings Chart

37.10 (10) On a motion to compel answers or to have undertakings given on an examination or cross-examination satisfied,

(a) the moving party shall serve on every other party to the motion and file with proof of service, in the court office where the motion is to be heard, at least seven days before the hearing, a refusals and undertakings chart (Form 37C) that sets out,

(i) the issue that is the subject of the refusal or undertaking and its connection to the pleadings or affidavit,

(ii) the question number and a reference to the page of the transcript where the question appears, and

(iii) the exact words of the question; and

(b) the responding party shall serve on the moving party and every other party to the motion and file with proof of service, in the court office where the motion is to be heard, at least four days before the hearing, a copy of the undertakings and refusals chart that was served by the moving party completed so as to show,

(i) the answer provided, or

(ii) the basis for the refusal to answer the question or satisfy the undertaking. O. Reg. 132/04, s. 8; O. Reg. 438/08, s. 35 (5, 6).

Refusal Item #4

[ 9 ] In the refusals chart prepared by Mr. Boyko's counsel, item 4 is: “What is the nature of the business of Pyman Media Group Inc?” The chart reflected that there was a refusal to answer any questions related to how Andrea Pyman currently earns income.

[ 10 ] Turning to the transcript as Master Haberman did on the motion, the following exchange took place at Ms. Pyman's examination for discovery:

Q. And what is the business of that company?

A. Closed captioning. And---

Q. Sorry, is that like closed captioning for the hearing impaired?

A. Yes, that's correct. Yes. So we---

Mr. Shekter: Just for the record, Counsel, I'm not going to let you get into what she does on her own to make a living. It's not relevant to the dependency claim.

[ 11 ] Master Haberman found that she was only obliged to deal with the question as it is set out in the refusals chart and the only question referred to in the chart had been answered. She further found that: "The fact that several question numbers are mentioned is not what matters ‑ it is the wording that counts. Parties must be clear in what they are actually seeking. This item is therefore dismissed."

[ 12 ] Counsel for Mr. Boyko contends that Master Haberman failed to consider the dictates of Rule 1.04 of the Rules in not looking beyond the refusals chart to the actual refusal made on Ms. Pyman's examination for discovery. Counsel submits that it was open to Master Haberman to look at the transcript itself, identify the refusal and provide her judgment on the relevance of this question. Counsel submits that Master Haberman's decision not to do so was neither just nor expeditious, nor was it the least expensive approach to determining the issue before her as per Rule 1.04 .

[ 13 ] I do not find that the Rules require that Master Haberman look beyond the refusals chart. I note that counsel for Mr. Boyko acknowledged that the refusals chart was not as good as it should have been and that a further refusal to question 230 should have been included in the chart. As Master Haberman correctly stated in her endorsement: "the chart should contain reference to everything the court needs to understand the question so we can prepare an advocate [advance]". Master Haberman expressed her concern in her endorsement about the moving party's preparation for the motion and she indicated that it was "less than stellar". Master Haberman stated on page 4 of her endorsement the following concerns:

I should not have to repeatedly ask ‘who is this person or this entity?’ or ‘where did this number come from?’ and, on the rare occasion if I do, counsel should have the answer at his finger tips. That did not occur here. It is also problematic when I am given 4 versions of the chart and counsel for the moving party omits the responding position, as articulated by the respondent in the final materials provided to the court. The moving party also neglected to bring a copy of Andrea's transcript to court, though only excerpts were provided in the material. This led to a jockeying back and forth of Mr. Foy's copy and added time to the hearing of the motion.

[ 14 ] With respect to item 4, Master Haberman also commented that the moving party, Mr. Boyko's counsel, "… appears to have been under the impression that we are still approaching these motions on the ‘semblance of relevance’ test, which was laid to rest more than two years ago....We do not expect or want to see counsel come to court with what is trite law ‑ particularly when what they bring is woefully out of date."

[ 15 ] I do not find that Master Haberman made a palpable and overriding error in deciding that item 4 had been answered as the question had been asked and answered. I agree with counsel for the plaintiffs' submission that Master Haberman's conclusion, that the question sought to be answered had been answered, was correct.

Refusal Item #15

[ 16 ] In the refusals chart prepared by Mr. Boyko's counsel, item 15 is: “Why are you taking dividends from Pyman Studios in 2009 and nothing from Pyman Video?” The chart reflects that there was a refusal to answer any questions as to how the deponent currently earns an income.

[ 17 ] Turning again to the transcript as Master Haberman did on the motion, the following exchange took place at Ms. Pyman's examination for discovery:

Q. Why are you taking dividends from Pyman Studios in these years and nothing from Pyman Video?

Mr. Shekter: Don't answer that

Mr. Blom: Why?

Mr. Shekter: Because she was now working and she was organizing her own affairs and you're not entitled to a credit for what she does as a working person.

[ 18 ] Mr. Boyko's counsel submits that at Ms. Pyman's examination for discovery on July 11, 2011, Ms. Pyman stated that in 2009 she received a dividend of $75,000 from Pyman Studios Inc. Counsel contends that Ms. Pyman refused to advise why she was taking dividends from Pyman Studios and not Pyman Video.

[ 19 ] Master Haberman found that the dividend was investment income. On page 3 of her endorsement, Master Haberman stated:

It seems to me that Andrea's investment income should not be subject to scrutiny as there is no suggestion that Rick was the mastermind investor of the couple. For all intents and purposes, it is conceivable that her income from that source would have continued as it has regardless of Rick's demise. Neither pleading asserts otherwise so this is not an issue raised by the pleadings and therefore not relevant for examination purposes. I therefore do not agree that the defendant should be permitted to go as far as they seek to.

[ 20 ] Counsel for Mr. Boyko argues that Master Haberman's reasons for decision give no indication as to why she concluded that this income should be categorized as investment income. Counsel further submits that Master Haberman failed to consider that the alleged investment income was post-accident income of Ms. Pyman’s which Master Haberman had previously found to be relevant for the purpose of discovery.

[ 21 ] Counsel for Ms. Pyman argues that Master Haberman correctly applied the test of relevancy with respect to item 15. He submits that Master Haberman dismissed Mr. Boyko's question on the basis that the question was regarding investment income and on the basis that Ms. Pyman's post-accident investment income is not relevant to Ms. Pyman's dependency claim.

[ 22 ] As stated by Perell J. in Ontario v. Rothmans Inc. , 2011 ONSC 2504 () , [2011] O.J. No. 1896 (S.C.J.) at para. 98 : "When considering whether a refused question should be answered, the Master has to determine whether the question is relevant, which is a matter of law, and whether the question is proper, which is a matter of discretion: Republic Bank of New York (Canada) v. Normart Management Ltd. , (1996) 1996 8224 (ON SC) , 31 O.R. (3d) 14 (Ont. Gen. Div.)".

[ 23 ] Perrell J. in Ontario v. Rothmans Inc. , at para. 129 , summarized the principles of the scope of questioning:

The case law has developed the following principles about the scope of the questioning on an examination for discovery :

• The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings: Playfair v. Cormack (1913), 1913 599 (ON SC) , 4 O.W.N. 817 (H.C.J.).

• The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery is known colloquially as a “fishing expedition” and it is not permitted. See Cominco Ltd. v. Westinghouse Can. Ltd. 1979 489 (BC CA) , (1979), 11 B.C.L.R. 142 (C.A.); Allarco Broadcasting Ltd. v. Duke (1981), 1981 723 (BC SC) , 26 C.P.C. 13 (B.C.S.C.).

• Under the former case law, where the rules provided for questions“relating to any matter in issue,” the scope of discovery was defined with wide latitude and a question would be proper if there is a semblance of relevancy: Kay v. Posluns , (1989), 1989 4297 (ON SC) , 71 O.R. (2d) 238 (H.C.J.); Air Canada v. McConnell Douglas Corp. 1995 7160 (ON SC) , (1995), 22 O.R. (3d) 140 (Master), aff’d 1995 7189 (ON SC) , (1995), 23 O.R. (3d) 156 (Gen. Div.). The recently amended rule changes “relating to any matter in issue” to “relevant to any matter in issue,” which suggests a modest narrowing of the scope of examinations for discovery.

• The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds: Graydon v. Graydon (1921), 1921 444 (ON SC) , 67 D.L.R. 116 (Ont. S.C.) at pp. 118 and 119 per Justice Middleton (“Discovery is intended to be an engine to be prudently used for the extraction of truth, but it must not be made an instrument of torture …”); Kay v. Posluns , (1989), 1989 4297 (ON SC) , 71 O.R. (2d) 238 (H.C.J.) at p. 246; Ontario (Attorney General) v. Ballard Estate 1995 3509 (ON CA) , (1995), 26 O.R. (3d) 39 (C.A.) at p. 48 (“The discovery process must also be kept within reasonable bounds.”); 671122 Ontario Ltd. v. Canadian Tire Corp. , [1996] O.J. No. 2539 (Gen. Div.) at paras. 8-9 ; Caputo v. Imperial Tobacco Ltd. , [2003] O.J. No 2269 (S.C.J.) . The court has the power to restrict an examination for discovery that is onerous or abusive: Andersen v. St. Jude Medical Inc. , [2007] O.J. No. 5383 (Master) .

• The witness on an examination for discovery may be questioned for hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge but his or her information and belief about the matters in issue: Van Horn v. Verrall (1911), 3 O.W.N. 439 (H.C.J.) ; Rubinoff v. Newton , 1966 198 (ON SC) , [1967] 1 O.R. 402 (H.C.J.); Kay v. Posluns , (1989), 1989 4297 (ON SC) , 71 O.R. (2d) 238 (H.C.J.).

• The witness on an examination for discovery may be questioned about the party’s position on questions of law: Six Nations of the Grand River Indian Band v. Canada (Attorney General) , (2000), 2000 26988 (ON SCDC) , 48 O.R. (3d) 377 (S.C.J.).

[ 24 ] Ms. Pyman relies upon the decision of Levesque v. Lipskie (1991), 1991 7327 (ON CA) , 3 O.R. 98 at para. 27 where Finlayson J.A., speaking for the Ontario Court of Appeal, stated that: "[T]he fact that a surviving spouse is capable of working is entirely irrelevant in assessing damages in a fatal accident case."

[ 25 ] Counsel for Ms. Pyman contends that under Rule 31.06 of the Rules , the question put forth under item 15 is not relevant as it seeks information relating to Ms. Pyman's investment income two years after the accident. Counsel submits that Mr. Boyko is attempting to assert a credit for income that Ms. Pyman earned on her own after Mr. Pyman's accident in an attempt to reduce Ms. Pyman's dependency claim. He submits that such a proposition is contrary to the well-established jurisprudence.

[ 26 ] Also, in support of her position, Ms. Pyman relies upon the decision of Lamont v. Pederson , 1981 1997 (SK CA) , [1981] 2 W.W. R. 24 (Sask CA) where the Saskatchewan Court of Appeal held that a widow's damages were not to be reduced by her own earnings, even though she had undertaken employment after the death of her spouse. At para. 21 of that decision, Brownridge J.A. stated:

At the date of her husband's death, the widow was not working outside the home. The fact that she is now working in gainful employment is prima facie irrelevant in the absence of any evidence that she would probably have taken employment and contributed to the family income even if her husband had not been killed. As pointed out by the learned trial judge, she had the right to remain a homemaker after her husband's death and she should not be penalized for going to work.

[ 27 ] Ms. Pyman contends that she depended almost entirely on her husband's earnings prior to his death. Ms. Pyman worked as a teacher full-time until 1990 when her eldest son was born. During the 1990s she primarily raised her children and periodically taught kindergarten. In 2002 Ms. Pyman worked at Pyman Video full-time for one year, but from the years 2003 to 2006, Ms. Pyman home-schooled her children and would occasionally assist Mr. Pyman at Pyman Video and supply teach for the Peel District School Board. She earned minimal income from the years 2003 to 2006. It is her evidence that not until Mr. Pyman passed away did she become actively involved with Mr. Pyman's companies.

[ 28 ] Counsel for Ms. Pyman argues that Mr. Pyman was the "true breadwinner" of the family and had he not died, Ms. Pyman could have expected to receive substantial amounts of money from him as a dependent. Ms. Pyman did not intend to work full-time as a teacher, and had no concrete plans, although she expected to freelance for Pyman Video if work was available. Ms. Pyman's position is that the family was a single wage-earner family.

[ 29 ] Counsel for Ms. Pyman points to Professor Waddams’ comments on this issue in his book, The Law of Damages , Looseleaf Edition, Waddams, S.M. (Toronto, Canada Law Book, 2011) at chapter 6, section 6.720 in further support of Ms. Pyman's postion:

If, however, the claimant would probably not have earned a separate income during the deceased's life, the different question arises of whether to take into account the probable earnings of the claimant after the deceased's death. The Courts have been reluctant to reduce the award on this account for fear of appearing to force claimants into employment that they would not have had to accept but for the death ‑ and all for the benefit of the wrongdoer who has caused the death. It is submitted that this reluctance is justified, for it is hard to resist the conclusion that a person suffers a real loss if compelled to rely on that person's own earning capacity in place of the support of the deceased spouse.

[ 30 ] Counsel for Mr. Boyko counters that the Lamont v. Pederson decision is distinguishable as in that particular case, the widow was not working at all and the deceased was an employee and income was not generated from a corporation. Counsel contends that his income ended on the date of his death whereas in this particular case the Pyman businesses are still a going concern. Counsel submits that this issue needs to be determined by the trial judge, not a master hearing a refusals motion.

[ 31 ] Mr. Boyko's counsel further submits that Ms. Pyman refused to answer any questions regarding her post-accident income on the basis that the defendants are not entitled to a credit for income earned by Ms. Pyman since the accident. However, counsel for Mr. Boyko contends that Master Haberman, on page 3 of her endorsement, stated:" ... As the courts have yet to articulate such a legal principle, the questions pertaining to Andrea's income, both before and after the accident, remain relevant and must be answered." Mr. Boyko submits that having found Ms. Pyman's pre-accident and post-accident income relevant for the purpose of disclosure and discovery, Master Haberman erred in failing to consider the entirety of the refusals set out in the motion record, and the transcript from discovery, and therefore erred in not ordering those questions to be answered, and that Ms. Pyman should re-attend for further discovery.

[ 32 ] Master Haberman, on pages 2 and 3 of her endorsement, reviews the law that was provided to her by counsel on post-accident income of the surviving spouse which was the the Court of Appeal decision of Issacs v. Boldt 1971 CarswellOnt 296 . In that decision, the Court did not agree with the trial judge’s decision in a fatality case, that a discount should be applied where a surviving spouse could have worked following her husband’s death but had chosen not to. Master Haberman indicates that this is different from where a spouse does work and does earn income and she states that this is an issue to be determined by the trial judge. She further indicates that as the courts have yet to articulate such a legal principle, questions regarding Ms. Pyman’s income before and after the accident remain relevant and must be answered.

[ 33 ] I note that Master Haberman did not have the benefit of additional case law provided to her by either counsel on this issue as has now been provided on appeal. It is conceivable based on the facts, that Ms. Pyman’s family income pre-accident was a single-wage earner family with Mr. Pyman as the single-wage earner. As outlined above, case law supports that in a one-wage earner family, the post-accident income of the surviving spouse would not be taken into consideration, therefore Master Haberman did not err in refusing to order questions asked with respect to post-accident income, two years post-accident, and questions relating to investment income.

[ 34 ] I do not find that Master Haberman committed a palpable or overriding error in finding that the question asked in item 15 was regarding investment income (as it was dividend income) and that it is not relevant and that post-accident investment income earned two years after the accident is not relevant to Ms. Pyman's dependency claim. The court's role on a refusals motion is to determine whether the question is relevant and I find that applying the case law and based on the fact that the question sought information regarding investment income earned by Ms. Pyman and income that was two years post accident, Master Haberman did not commit a palpable and overriding error in finding that the question was irrelevant. These findings also apply to the request for documentation and information post-accident in the Soberman letter.

Paragraphs 16-20 of the Soberman LLP Letter

[ 35 ] Mr. Boyko submits that despite the refusal of Ms. Pyman to produce documentation and answer relevant questions, Mr. Boyko attempted to rely upon the information and documentation that he had received. As a result, he submits that he hired an expert to determine what documentation or information would be required in order to quantify the alleged damages claimed by Ms. Pyman.

[ 36 ] Master Haberman, in her endorsement, referred extensively to Mr. Boyko's request for further documentation and information as requested in his expert's letter. In paragraph 16 of the Soberman letter, as Master Haberman correctly points out in her endorsement, Mr. Boyko was seeking documentation that the expert recommended in order to allow the expert "to obtain a complete understanding of the pre-accident and post accident income which flowed to the family unit." Master Haberman, in her endorsement, stated that there was no affidavit from the author of the report:

Though he explains in his report why he believes the information sought would assist, there is no evidence from him about any of this, nor does he make it clear that the information sought is necessary. Though an affidavit from the expert [is] not strictly necessary, in a case such as this one, where there are multiple companies, none of which are going to be parties to the proceeding, it would have been helpful to see how this expert would have worded his view when under oath.

Master Haberman noted that Pyman Video was going to be discontinuing its action as counsel had indicated that Pyman Video did not have a viable claim under the current state of law.

[ 37 ] Master Haberman also commented that a few of the items which were being sought now through the expert were not sought during the course of the examination for discovery whereas they could have been. She noted that the action was commenced in 2008 and the discoveries were not held until 2011. She also noted that the Soberman report was not provided in response to a report from the plaintiff's expert so that the report could have been obtained far earlier. She indicated that she was not given any reason why the report was not obtained before discoveries. She stated that had the report been available this would have given counsel for Mr. Boyko the list of questions his expert hoped to have answered and which he could have pursued at the examination for discovery.

[ 38 ] Master Haberman went on to state at page 6 of her endorsement:

The motion is resisted largely on the basis that the items should have been pursued at the discovery table. The moving party contends that their requests for this information were refused, or counsel was shut down in his questions en route to that point. In most cases, I can say that my review of the transcript does not bear this out. Further, simply because counsel refused to allow a question to be answered when it is posed in one context does not mean it should not be revisited from another angle that may be more appropriate and more difficult to resist.

I am also of the view that several of these requests are premature as they seek source documents on the basis of an assumption that what they will get will be either unclear or not a completely honest and accurate picture of how this family conducts its business.

While source documents may well be relevant to most claims for loss of income, they are usually only ordered to be produced in unusual cases and with good cause. Going behind final documents is generally only necessary when there is an anomaly of their face that suggests something murkier lies beneath the surface. I was taken to nothing of that nature here. As a result, I have decided the most appropriate way to deal with some of these questions is to dismiss them without prejudice, such that the issue can be revisited after receipt of the documents that will be produced and the plaintiffs' expert accounting report.

I remind plaintiffs' counsel that though I have limited my production order, it may well be the case, particularly as a vast sum is being claimed here, that the trier of facts will be asked to draw a negative inference from a strict adherence to the relevance test.

[ 39 ] With respect to the documentation and information requested at paragraph 16 of the Soberman letter, Master Haberman dismissed those requests. Counsel for Mr. Boyko submits that a party has an ongoing obligation with respect to documentary discovery which survives oral examinations for discovery. In support of her position, she relies upon Rule 30.02(1) of the Rules that "every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed." Counsel contends that this documentary discovery is not limited to those items that were requested on oral examinations and relies upon the decision of Quigley J. in Notarandrea v. Dodd , 2011 ONSC 4493 () at paras. 11 to 14 and 21 wherein counsel for Mr. Boyko states that Justice Quigley rejected the proposition that a party was not entitled to disclosure simply by virtue of the failure to request such productions on examination for discovery.

[ 40 ] Counsel for Mr. Boyko further submits that with respect to all post-accident documents as requested by the expert, the refusal of Ms. Pyman to produce any post-accident income or corporate records was clearly stated on the record, and therefore any request for those records had already been refused. Counsel therefore submits that Master Haberman erred in refusing to consider the request for production of the post-accident records.

[ 41 ] Counsel for Mr. Boyko also states that Master Haberman failed to consider the refusal of Ms. Pyman to produce any documentation or information regarding her post-accident income, despite Master Haberman having found that such documentation is clearly relevant for the purposes of discovery.

[ 42 ] In addition, counsel also contends that Master Haberman erred by failing to identify which documents she felt were being requested prematurely and that the Master erred in refusing to require the plaintiff to produce documentation that the moving party's expert has advised is necessary in order to provide a fair, objective, and non-partisan opinion. Counsel further argues that Master Haberman's failure to order the production of documentation that is clearly relevant, ties the hands of Mr. Boyko and makes it impossible for him to assess the dependency claim of Ms. Pyman.

[ 43 ] I do not find that Master Haberman committed a palpable and overriding error with respect to her finding that the source documents requested were premature which she addressed when referencing subparagraphs 16(i) and (ii) and subparagraphs 19(i) and (ii) of the Soberman letter. Master Haberman indicated in her reasons on page 6 that she felt that several of the requests were premature as source documents were sought on the basis of an assumption that what would be obtained would either be unclear or not a completely honest and accurate picture of how the family conducts its business. Master Haberman found that "going behind final documents is only necessary when there is an anomaly of their face that suggests something murkier lies beneath the surface. I was taken to nothing of that nature here." Master Haberman was exercising her discretion in making this determination and in addition, the fact that she indicated with respect to subparagraphs 19(i) and (ii) that she was dismissing these claims without prejudice, such that the issues could be revisited after receipt of the documents that will be produced in the plaintiff's expert accounting report, shows that she was attempting to balance the interests of both parties in exercising her discretion.

[ 44 ] With respect to paragraph 16(iii), the request for information was with respect to Ms. Pyman's current spouse, Mr. Varangu's corporation(s). As Mr. Varangu is not a party to the proceedings, and was not served with the motion, Master Haberman correctly noted that no order can be made requiring a non-party to provide any of the documentation. Additionally, as pointed out by counsel for Ms. Pyman, counsel for Mr. Boyko during discovery was invited by Ms. Pyman's counsel to ask how much Mr. Varangu actually contributed to the Pyman household, but counsel for Mr. Boyko elected not to ask these questions. As such, I find no error with Master Haberman's decision to dismiss this request.

[ 45 ] At paragraph 17 of the Soberman letter, there is a request for additional information for Pyman Video Productions Inc., in order to ascertain whether the decline in income subsequent to the accident is reasonably attributable to the death of Mr. Pyman. Master Haberman dismissed this request as she stated: "This is the subject of an expert report which will be forthcoming and, no doubt comment on this factor."

[ 46 ] Counsel for Ms. Pyman argues that the question in paragraph 17 of the Soberman letter was not asked on the examination for discovery and was not appealed. He further contends that the question was not contained in the chart provided to Master Haberman on the motion.

[ 47 ] I agree with the submission of counsel for Ms. Pyman, that Master Haberman had the discretion to consider whether or not the question was proper and she found that it was not as it was the subject of an expert report. In exercising her discretion I do not find that Master Haberman committed a palpable or overriding error.

[ 48 ] With respect to subparagraphs 18(i) to (iii) of the Soberman letter, information was requested with respect to a summary of projects in process at the time of the accident and further details requested concerning those projects if any; a summary of contracts in place at the time of the accident for future projects with similar information as of March 1, 2006 and information regarding projects under negotiation at the time in the accident, and whether those contracts were subsequently finalized and if not, information to identify why it was not successful.

[ 49 ] Master Haberman dismissed these requests for information as she stated that none of this information was sought at discoveries.

[ 50 ] Counsel for Ms. Pyman argues that prior to the examination for discovery, the plaintiffs produced an enormous amount of financial documentation which included the following: financial statements for Pyman Video from 2000-2009: corporate income tax returns for Pyman Video from 2000 to 2008; detailed General Ledger Transactions from Pyman Video from 2000 to 2009; details of the management salaries for Pyman Video for 2000 to 2009; details of Pyman Video's production costs; financial statements from Tri-Lite TV Inc. from 2008 and 2009; Andrea Pyman's income tax returns from 2001 to 2010 and Richard Pyman's income tax returns from 2001 to 2007. Counsel contends that at no point during Ms. Pyman's examination for discovery did counsel for Mr. Boyko seek to examine Ms. Pyman on any of these financial documents or request further documents related to such questions. Further, counsel contends that it was never suggested on the motion before Master Haberman that the Affidavit of Documents was deficient.

[ 51 ] Counsel for Ms. Pyman further submits that there was only one refusal made with respect to a request for documentary production which was a request for the summaries of the tax returns of Mr. Varangu. Counsel contends that this refusal does not form part of the appeal and in any event, as indicated earlier, counsel invited questions concerning how much Mr. Varangu actually contributed to the Pyman household, but those questions were not asked.

[ 52 ] I do not find that Master Haberman committed a palpable and overriding error with respect to the requests set out in subparagraphs 18(i) and (ii) and subparagraphs 20(i) to (iii) of the Soberman letter, as she correctly concluded that these production requests were not sought during the course of the examination for discovery yet they could have been sought at the time of the discovery. Master Haberman indicated on page 7 of her endorsement: "...these questions were not put at discoveries… when a party produces documents, they should be taken to them and asked to explain them. This does not appear to have been done here. Once a general refusal was given, no alternate route was even tried. It ought to have been, in my view…"

[ 53 ] The decision of Notandrea v. Dodd relied on by Mr. Boyko is distinguishable from this case. In that particular case, the document ‑ an eye prescription record ‑ should have been identified in an Affidavit of Documents but it was not. The eye prescription was an issue raised in the pleading and should have been included in the Affidavit of Documents whether the question had been asked or not. In this case, there was no suggestion, nor did there appear to be any evidence, that the plaintiffs had not complied with their disclosure obligations. Mr. Boyko is requesting, through an expert report filed as an exhibit to a lawyer's affidavit, additional documents that were not asked for previously during Ms. Pyman's examination for discovery after having decided not to examine Ms. Pyman on the financial documentation that was provided to Mr. Boyko prior to the examination for discovery of Ms. Pyman.

[ 54 ] Paragraph 19(iii) of the Soberman letter sought information concerning a former client of Pyman Video which I understand was a Dutch company named “DP2”, that is now bankrupt. I do not find that Master Haberman committed a palpable and overriding error in dismissing this request of Mr. Boyko. I agree that sales and production details of a former client of Pyman Video, as requested, are not relevant to Ms. Pyman's dependency claim.

[ 55 ] With respect to paragraph 20(v) of the Soberman letter, Master Haberman found at page 8 of her endorsement: "it appears from the transcript (question 468) that the defendant did obtain the answers to the questions that he did ask about personal or family expenses paid for by the company. There is no reason to believe that he would have been shut down had he continued with this line of questioning. He chose not to do so."

[ 56 ] I do not find that Master Haberman committed a palpable or overriding error as there is no reason to doubt the correctness of her decision that Mr. Boyko did obtain the answers to the questions and that counsel for Mr. Boyko chose to stop this line of questioning.

Request that Ms. Pyman Re-attend on Examination for Discovery

[ 57 ] Given my findings that Master Haberman did not commit a palpable and overriding error with respect to the relief sought by Mr. Boyko, I decline to order that Ms. Pyman re-attend on examination for discovery.

Order

[ 58 ] I order the following:

i) The appeal of the defendant, Mervin Boyko, is dismissed.

ii) I urge the parties to agree on costs, but if they are unable to do so the plaintiffs shall serve and file written costs submissions, no longer than two double-spaced pages, along with their costs outline within 20 days and the defendant, Mervin Boyko, shall serve and file his written costs submissions, no longer than two double-spaced pages, along with his costs outline, 20 days thereafter.

Stevenson J.

Released: December 6, 2012

COURT FILE NO.: CV-08-00368597
DATE: 20121206

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

ANDREA PYMAN, SHANE PYMAN, BLAKE PYMAN and pyman video productions inc. P laintiffs/Respondents - and - suzanne padt, robert padt, mervin boyko, the regional municipality of halton, the corporation of the town of halton hills, her majesty the queen in right of ontario, as represented by the ministry of transportation, halton regional police service boarD, bernard (bernie) verrette and the dominion of canada general insurance company Defendants/Appellants

REASONS FOR DECISION Stevenson J.

Released: December 6, 2012