SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11-52979
MOTION HEARD: May 30th, 2013
RE: Randy Schleyer and Andrew Bugnet
BEFORE: MASTER MACLEOD
COUNSEL:
Christine Powell, for the responding party plaintiff
Rosemary Cosentino, for the moving party defendant
REASONS FOR DECISION
[1] This is a motion for undertakings and refusals in a motor vehicle action arising from an accident on March 1, 2010. There are also motions for production by non parties.
[2] The issues have been narrowed since the motions were launched. Indeed all of the undertakings have been answered though there are some follow up requests. I will come back to those momentarily.
[3] There is a motion under Rule 30.10 for Dr. Nodwell to produce his records. This is not opposed by the plaintiff and Dr. Nodwell was served and is not present. Accordingly an order will go directed to Dr. Nodwell to produce his records.
[4] Turning to the refusals, there are two issues of significance. The first relates to production of information from litigation and settlement in a previous motor vehicle accident in 2003. The second has to do with banking records and other financial information.
[5] Dealing firstly with the previous accident, the defendant already has access to the pleadings, the plaintiff’s medical reports, the accident benefits file and the fact that the tort action was settled years before this accident and this action. The defendant also has the plaintiff’s work history and knows that the plaintiff returned to work after that accident and perhaps after the settlement. It should be noted that the defendant has also had disclosure of a 2007 motor vehicle accident and accident benefits file and of some WSIB claims.
[6] The plaintiff has refused to produce the defence medical reports in the earlier litigation and has refused to provide particulars of the settlement including the consent of that settlement and what if any component of the settlement was for future economic loss.
[7] It is quite clear that independent medical examinations (or defence medical) or surveillance obtained by a defendant in previous litigation and produced to a plaintiff in the previous litigation are caught by the deemed undertaking rule (Rule 30.1). This was conclusively determined by the Court of Appeal in Kitchenham v. Axa Insurance Canada 2008 ONCA 877. It does not matter that the plaintiff was the subject of the report or the surveillance, the plaintiff may not use that information and may not disclose it for any purpose other than that litigation without leave of the court on the permission of the original defendant.
[8] Similarly there is authority binding upon me that the amount of an earlier settlement is also protected by privilege and it is the privilege of both parties to the original litigation. See Anderson v. Cara Operations Limited (2009) 83 CPC (6th) 191 (SCJ) and Chappel v. Dysko 2008 91 (SCJ).
[9] The court of course may be relieved from both the deemed undertaking rule and from settlement privilege. It is appropriate to do so only if the interests of justice demand it and outweigh the importance of the undertaking or the privilege.
[10] That is not the case here. There is no evidence by which I can reasonably conclude the defendant would be prejudiced by not knowing what the previous defendant’s medical experts had to say about the condition of the plaintiff in 2003 or the years following. The plaintiff has produced his own medical records and his own expert reports showing the injuries and the extent of the disability he claimed to have suffered in that previous accident. He has as observed also produced the a.b. file (including as it happens surveillance).
[11] As for the settlement of the earlier accident, not only do I see no prejudice to this defendant I cannot see that it is even relevant other than that to credibility or character.
[12] It does not matter for purposes of the damages in the present tort action if the plaintiff was fortunate enough to strike a bargain with the defendant’s insurer in 2003 which included future economic loss and than subsequently was able to return to work. He is now suing for the loss of the ability to work which he had at the time of the second accident. Double recovery does not enter into the picture.
[13] It might be very different if the two accidents were closer together in time and the litigation overlapped. In such a case the matters are frequently tried together and if the litigation in connection with the first action is settled after litigation has ensued in regard to a second accident particularly if the plaintiff is pleading the same disability in relation to both double recovery is a possibility. This appears to have been the case in Pete v. Lanouette 2002 BCSC 75 (Master) where there had been accidents in 1994 and 1998 and in which the defendant in the second action specifically pleaded that any disability existing in 1998 was a result of the 1994 accident.
[14] I am not persuaded this is a situation in which there should be an order for the production of the settlement particulars of the earlier action and I decline to exercise my discretion to make such an order.
[15] The defendant also asks the court to order certain follow up production requests be provided. To be clear these are requests made in writing to plaintiff’s counsel requesting further disclosure as a result of the information provided by way of undertaking.
[16] Making such requests is a good practice. Answering such requests if the information sought is relevant and reasonable is also a good practice. Indeed there has been voluntary agreement to provide some of the requested information.
[17] Traditionally the court would only deal with such requests for information if they had been formally demanded and refused or in the context of a motion for a further and better affidavit of documents.
[18] Ordinarily a party seeking to compel further production post discovery would first request a follow up discovery to obtain the answers to undertakings under oath and then would ask for the further production and bring a motion if it was refused. There are of course other rules which could be used but the point is the court would have to find an improper refusal under a rule which gave the defendant the right to demand the production.
[19] All of this must be reconsidered under the revised discovery regime with putative time limits and the requirement of a discovery plan. Rule 29.1 requires ongoing collaboration between counsel to devise cost effective targeted proportionate discovery. This is designed to head off problems and to foster less adversarial resolution of discovery disputes.
[20] When the parties are unable to agree on a matter important to the discovery process it may be appropriate to seek guidance from the court without having to engage the entire adversarial and forensic mechanisms of a traditional motion. This is possible through a request for case management (at least in Ottawa) or a motion for directions. It could also, as here, be grafted onto a motion that is already before the court. I have no objection to being asked to give direction in such a case but it is not appropriate to approach such a request for directions in the same way as a contested motion.
[21] In the subject case I encourage counsel to continue their dialogue to ensure all relevant documents are produced, to minimize the need for subsequent rounds of discovery and to avoid the need for expensive contested motions.
[22] The action will be case managed under Rule 77 and counsel may seek further direction in the event of disagreement by way of a case conference.
[23] Parties are of course entitled to bring motions in the traditional way. This engages on evidence based rights analysis and costs consequences set out in Rule 57.03(1).
[24] It follows that on the contested portion of the motion the moving party defendant has been unsuccessful. The plaintiff is entitled to costs. Having regard to the costs outlines and the time actually spent in argument, applying the factors in Rule 57.01 as applicable and in the exercise of my discretion under S.131 of the CJA, costs are fixed at $3,500.00 to be paid forthwith.
Master MacLeod
DATE: May 31, 2013