ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV4757, 2009
DATE: 20130225

B E T W E E N:

JOHN McLELLAND and
RAYNA BETHUNE

John B. Gorman, for the Plaintiffs

Plaintiffs

• and -

FARQUHAR PLYMOUTH CHRYSLER LTD., DAIMLERCHRYSLER SERVICES CANADA INC., and DAIMLERCHRYSLER FINANCIAL SERVICES CANADA INC. operating as DAIMLERCHRYSLER TRUCK FINANCIAL

Heather Gray, for the Defendants

Defendants

HEARD: December 10, 2012 and
January 24, 2013

D E C I S I O N

WILCOX, J.

[1] INTRODUCTION

[2] This arises out of a motor vehicle accident that took place on or about January 23, 2004. There are two actions involving these Plaintiffs. The first is referred to as the “Gagnon Action” and is against a number of defendants including Gagnon. The second, brought later, is against Farquhar Plymouth Chrysler Ltd. and several DaimlerChrysler entities. It is referred to as the “second action”. There are a number of other related actions by other Plaintiffs. The Statement of Defence in the second action was amended to add paragraph 21 alleging that the action was statute barred as it was not commenced within the two year limitation period.

[3] Plaintiffs’ counsel sought to obtain from the defence an Affidavit of Documents together with all lease documents, all documents relevant to the discoverability issue (regarding the limitations defence) and copies of all insurance policies. He also sought to examine for discovery someone from the defendant who was familiar with discoverability issues and insurance coverage. The Plaintiffs’ counsel alleged certain shortcomings in the resulting Affidavit of Documents and productions and sought a further and better one as well as some allegedly outstanding insurance policies. Examinations for discovery were agreed to by defence counsel in a letter of June 27, 2012 with the stipulation that all counsel for the related actions who intended to examine would attend at the same time, and she proposed dates in the latter half of July, 2012. Not surprisingly, in view of the aggressive time lines, examinations for discovery did not take place. Then, by letter of October 26, 2012, the defence counsel informed the various Plaintiffs’ counsel that she had instructions to move for summary judgment.

[4] The Plaintiffs brought a Notice of Motion returnable November 23, 2012 seeking 14 items of relief. These include that DaimlerChrysler go through various forms of oral and documentary discovery within a fixed time, that DaimlerChrysler deliver a formal Reply to a Demand for Particulars and that DaimlerChrysler be prevented from proceeding with a Motion for Summary Judgment to dismiss the second action until all forms of discovery have been completed.

[5] In particular, the Plaintiffs seek to confirm the identity of the owner and lessor of the motor vehicle in question in order to determine the insurance coverages available, which was said to be of particular importance due to the number of plaintiffs who are making claims as a result of the accident.

[6] The Plaintiffs’ motion documents indicated that the information sought is relevant to the second action and to the Motion for Summary Judgment. At the least, there is an implication that there is a discoverability issue regarding the limitation period and that some of the information sought is relevant to it, as well as to whether the Defendants are prejudiced by the late claim.

[7] RE: ONTARIO HIGHWAY TRAFFIC ACT S. 192

[8] At the outset of the hearing, Plaintiffs’ counsel indicated that defence counsel had served additional material that morning, being a Supplementary Responding Motion Record of the Defendants and a Supplementary Factum submitted on behalf of the Defendants. He indicated that these raised an issue that he had not had time to consider. That was the effect of s. 192 of the Ontario Highway Traffic Act. Plaintiff’s counsel said that a fundamental issue in the second action is the proper name of the owner and lessor of the Gagnon motor vehicle. The Defendants’ Supplemental Factum stated that, under s. 192 of the Highway Traffic Act, a lessor is not liable – vicariously or otherwise – for loss or damage sustained by any person by reason of negligence in the operation of a motor vehicle, but the driver, owner and lessee were.

[9] The matter was adjourned to allow Plaintiff’s counsel to look into this new matter and the effect it might have on the second action.

[10] On the return of the motion on December 10, 2012, the issue of a lessor’s liability was argued at length. However, at the continuation of the motion on January 24, 2013, counsel agreed that it was not necessary to deal with this issue for the purposes of the motion, but that it was a matter for trial.

[11] PLAINTIFFS’ PRELIMINARY OBJECTION

[12] Plaintiffs’ counsel objected to the affidavit filed by the defence in response to the Plaintiffs’ Notice of Motion and sought to have it struck.

[13] When Plaintiffs’ counsel had served his motion materials, he had written to defence counsel in a letter dated November 9, 2012, “Please note that any responding affidavit must be from your client and not from a lawyer. If you deliver a lawyer’s affidavit, I will object …”. The Responding Motion Record of the Defendants dated November 16, 2012 contained the affidavit of Rhonda Borneman, a law clerk with defence counsel’s office, sworn November 16, 2012. The only other affidavit delivered by the defence was a Supplementary Affidavit of Rhonda Borneman sworn November 22, 2012.

[14] Plaintiffs’ counsel stated that the key issues involved the identity of the owner and lessor of the motor vehicle at the date of the motor vehicle accident and the production of ownership, lease and insurance documents and particulars, that these were within the knowledge of the Defendant, not its law firm, and that the affidavits were not proper not the best evidence.

[15] This matter was also argued at length. Ultimately, however, the defence counsel was willing to proceed without reference to the affidavits in question, to which the Plaintiffs’ counsel agreed.

[16] PLAINTIFFS’ MOTION

[17] The Plaintiffs’ Notice of Motion could be dealt with on its own merits, but for the Motion for Summary Judgment which defence counsel says is pending.

[18] The Plaintiffs’ Notice of Motion is for various forms of discovery and to prevent the bringing of a Motion for Summary Judgment to dismiss the action until all forms of discovery have been completed. Defence counsel argued that the discovery is not relevant to the Motion for Summary Judgment as the evidence from it is not needed for that motion, and that the Motion for Summary Judgment should go first. If it is not successful, the Plaintiff could then pursue the disclosure, to which it has a right. To go through discovery only to then have a successful Motion for Summary Judgment would be a waste of time and money. Defence counsel pointed to rule 20.01(3) which provides that a Defendant may, after delivering a Statement of Defence, move for Summary Judgment dismissing all or part of the Plaintiff’s claim.

[19] Plaintiffs’ counsel took the position that he required disclosure before the Motion for Summary Judgment to deal with both it and the action. On the Motion for Summary Judgment, the disclosure could be relevant to issues such as discoverability and the prejudice, or lack thereof, to the defendant of the claim. As for the delay inherent in the discovery process, he pointed out that the Defendants had not moved for Summary Judgment after issuing the Amended Statement of Defence dated July 5, 2010; the idea of it arose only after Plaintiffs’ counsel proposed his Notice of Motion for Disclosure. Furthermore, he pointed out that defence counsel is not objecting much to the disclosure requested, but rather to the timing of it vis à vis the Motion for Summary Judgment.

[20] Counsel referred to a number of cases. Most were in the context of Motions for Summary Judgment that had already been brought, which is not our situation. As previously stated, we have here a Notice of Motion for Disclosure which the Defendants resist because they intend to bring a Motion for Summary Judgment. Regarding the Defendants’ Motion for Summary Judgment, I have not seen even a draft of it. I am not aware that it has been served. The date that the Defendants booked for it was cancelled and has passed, apparently without a new one being scheduled. Of course, instructions and intentions can change, so the possibility remains that no Motion for Summary Judgment will be brought after all. Therefore, many of the cases are of limited use in our circumstances.

[21] However, the case of Natural Resource Gas Ltd. v. IGPC Ethanol Inc. [2011] O.J. No. 2625 O.S.C.J. was similar to the present situation. Defence counsel in it was trying to schedule a Motion for Summary Judgment, but the Plaintiff’s counsel opposed that, insisting that the Defendant first file an Affidavit of Documents. The court reviewed the law, and paragraphs 10 and 11 of the decision are useful here:

10- In the case of Bank of Montreal v. Negin (1996), 1996 1548 (ON CA), 31 O.R. (3d) 321 (C.A.), the court held at paragraph 3:

On the first issue, the motions judge stated that the only reason for the respondents’ wishing to have the affidavit of documents was to buttress or substantiate their affidavits on the motion for summary judgment, and that this is not appropriate on a summary judgment motion. I do not agree with that, as a general proposition. Important evidence is often only in the possession of the party moving for summary judgment. If the responding party were denied the opportunity of reviewing relevant documents in the possession of an opposing party before examination on affidavits to be used on a motion for summary judgment, he would be deprived of information to which he is entitled under the Rules of Civil Procedure. In addition, it would mean that on a motion for summary judgment the responding party is not entitled to know the full evidence on which the opposing party bases its case. In this case, however, all relevant documents were before the court.

11- The proposition that the bringing of a summary judgment motion does not suspend disclosure has been considered in a number of decisions. In Cole v. Hamilton (City) (1999), 1999 14820 (ON SC), 45 O.R. (3d) 235 (Ont. Gen. Div.), Cumming J. held that Rule 30.03 applies where a summary judgment motion is brought because it is essential that a party have production of documents to prove its case. A party responding to a motion for summary judgment must be able to put forward all relevant evidence in defending the motion. In Bank of Canada v. Herzog (1999), 42 C.P.C. (4th) 269 (S.C.J.), Pepall J. wrote at paras. 18-22 that Rule 30.03 was designed to provide full disclosure and that a party defending a motion for summary judgment should not be limited to receiving relevant documentation through cross-examination on affidavits filed in the motion.

[22] Indeed, in the case of Cole v. Hamilton (City), the court stated in paragraph 3:

I concur with the master’s view of the applicable law. Rule 30.03 is straightforward in requiring a party to serve on every other party an affidavit of documents within ten days of the close of pleadings. This normative approach is purposeful because a party will often require production of documents by the opposition to prove the party’s case. There is no suspension of this obligation because of an intended or pending motion for summary judgment. A party against whom there is a motion for summary judgment must be able to put forward all relevant evidence in defending the motion. A party in such a position may ascertain relevant evidence through the affidavit of documents.

[23] Similarly, rule 25.10 says:

Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.

[24] Again, there is no suspension of this obligation because of an intended or pending motion for summary judgment.

[25] Going further, in the case of Combined Air Mechanical Services Inc, the Court of Appeal promulgated the full appreciation test for deciding whether a matter can be decided in a Motion for Summary Judgment or requires a trial. This test asks whether “the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?” (paragraph 50). The court went on to say as follows, at paragraphs 57 and 58.

57- However, we add an important caveat to the “best foot forward” principle in cases where a motion for summary judgment is brought early in the litigation process. It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

58- Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.

[26] After referring to this full appreciation test, the court in the case of Ghaffari v. Asiyaban, 2012 ONSC 2724 had this to say at paragraph 9:

The established evidentiary obligations remain. The moving party bears the evidentiary burden of showing there is no genuine issue requiring a trial. After the moving party has discharged the evidentiary burden, the burden shifts to the responding party to prove that its claim or defence has a real chance of success. In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. In accordance with the existing jurisprudence, each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried and cannot sit back and rely on the possibility that more favourable facts or better evidence may be presented at trial. The Court is entitled to assume that the record contains all the evidence which the parties would present at trial.

[27] SUMMARY AND DECISION

[28] In summary, then, the Plaintiff has a right to disclosure under the Rules of Civil Procedure. They are not necessarily or automatically suspended in the face of a pending or contemplated motion for summary judgment. Indeed, disclosure may be necessary for the Plaintiff to properly deal with a motion for summary judgment as well as for the action as a whole. In this particular case, I do not see how the Plaintiff could properly respond to a motion for summary judgment without further disclosure. Some of the disclosure requested might be relevant to the main action rather than to the motion for summary judgment. However, I do not believe that I am in a position to separate the two in the abstract, and limit disclosure to that which I think is relevant to the motion for summary judgment. Even if I could, doing so might unfairly deny the Plaintiff information which he, but not I, could see the relevance of to the motion for summary judgment. So, I would allow the Plaintiffs’ request under heads of relief 1 through 12 of the motion, subject to some further comments.

[29] Before dealing with those, however, I shall address item number 14 of the Notice of Motion which requests that the Defendants be prevented from proceeding with their Motion for Summary Judgment to dismiss this action until all forms of discovery have been completed. If and when the Motion for Summary Judgment is brought, it would be against the Plaintiffs in the several related actions, not just the Plaintiffs in this one. In view of that, I do not think that it is appropriate to deal with this in this motion in isolation from the other actions. The court hearing the Motion for Summary Judgment should have the benefit of the submissions of all participating parties in coming to a decision. Therefore, I dismiss this head of relief, without prejudice to the Plaintiffs’ ability to raise it again if and when the Motion for Summary Judgment is brought.

[30] Returning to the other heads of relief, there shall be an order for the relief requested in number 1, and numbers 3 through 12, subject to the following comments.

[31] Regarding number 1, there is some question as to whether legible copies of some documents are available. The Defendants shall use their best efforts to locate and provide legible copies, or explain why they have not been able to if that turns out to be the case.

[32] The Plaintiff abandoned number 2.

[33] In number 8, the Plaintiff sought an order requiring the Defendants to deliver a formal Reply to Demand for Particulars in response to the Demand for Particulars dated October 16, 2012 to reveal who precisely were the owner and lessor of Daniel Gagnon’s motor vehicle at the time of the motor vehicle accident.

[34] The Plaintiffs’ counsel submitted that paragraphs 4 through 7 of the Statement of Claim in the second action alleged as follows:

4- The defendant, Daniel Gagnon, resides in North Bay, Ontario, Canada. He was at all material times the operator of a motor vehicle which was involved in this motor vehicle accident. This motor vehicle was owned and leased to him by the defendants, Farquhar Plymouth Chrysler Ltd., DaimlerChrysler Services Canada Inc. and DaimlerChrysler Financial Services Canada Inc. operating as DaimlerChrysler Truck Financial. An action has been commenced against Daniel Gagnon in the Superior Court of Justice at North Bay, Ontario, Canada bearing Court File No. CV3516, 2006.

5- The defendants, Farquhar Plymouth Chrysler Ltd., DaimlerChrysler Services Canada Inc. and DaimlerChrysler Financial Services Canada Inc. operating as DaimlerChrysler Truck Financial, were at all material times the owners and lessors of the motor vehicle operated by Daniel Gagnon.

6- The plaintiffs plead that Daniel Gagnon was at all material times operating his motor vehicle with the consent of the owners and lessors, the defendants, Farquhar Plymouth Chrysler Ltd., DaimlerChrysler Services Canada Inc. and DaimlerChrysler Financial Services Canada Inc. operating as DaimlerChrysler Truck Financial.

7 – The plaintiffs plead that the defendants, Farquhar Plymouth Chrysler Ltd., DaimlerChrysler Services Canada Inc. and DaimlerChrysler Financial Services Canada Inc. operating as DaimlerChrysler Truck Financial, are vicariously liable for the liability of Daniel Gagnon.

[35] The Amended Statement of Defence contains a blanket denial of the allegations contained in the Statement of Claim, and a denial of vicarious liability for Daniel Gagnon. Plaintiffs’ counsel directed the court’s attention to rule 25.06(1) which requires that “every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence …”, and also to rule 25.07(3) which requires that, “where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party shall plead the party’s own version of the facts in the defence”.

[36] Based on this, Plaintiffs’ counsel submits that the Statement of Defence should have gone beyond mere denial of the Statement of Claim’s assertions as to who were the owner and lessor, and identified them. His demand for particulars sought the precise identity of the owner and lessor of Daniel Gagnon’s motor vehicle at the time of the motor vehicle accident. Defence counsel answered by letter stating a name, but did not supply a formal Reply to Demand for Particulars. Plaintiffs’ counsel required the formal document rather than a mere letter from counsel in order to bring some certainty to the identity of the owner and lessor. That there has been a lack of certainty around this is clear from the materials before the court, including different answers from two counsel at the defence counsel’s firm at different times.

[37] There can be various purposes for particulars. Some relevant ones here are to prevent surprise, to assist in the preparation for examination for discovery and, indeed, for trial, and, ultimately, to serve the interests of justice.

[38] In the circumstances, I find that the Amended Statement of Defence did not meet the requirements of rule 25 and that the Defendant should have pleaded with more precision than a blanket denial. A formal Reply to the Demand for Particulars is required forthwith.

[39] Regarding number 10, discovery shall be scheduled between counsel. If necessary, they may return to the court to fix a date, time and place. Defence counsel shall not insist that all counsel in the various actions (which have not been consolidated) who might want to discover the Defendants participate in this one discovery although they may be given the option of doing so. To so insist would almost certainly create more delay. Counsel in the related cases have their own options and remedies.

[40] As for number 13, there was no information provided to the court as to what a reasonable time would be to complete the above. So, any time fixed by the court would be arbitrary and the court declines to do so. However, it is important that the matter be expedited, given its age.

[41] Costs are reserved to the trial judge.

Justice James A. S. Wilcox

Released: February 25, 2013