COURT FILE AND PARTIES
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Patrick Portelance personally, and in his capacity as Litigation Guardian to Joseph David Portelance (Plaintiffs)
- and -
Ron Williams, Eric Goyet, and 144096 Canada Ltd., c.o.b. as Capital City Helicopters (Defendants)
BEFORE: Justice A. W. Bryant
COUNSEL:
David A. Zuber, for the Plaintiff, Patrick Portelance
Sandra G. Drozd, for the Defendants, Ronald Williams and 144096 Canada Ltd. c.o.b. as Capital City Helicopters
HEARD: September 3, 2013
ENDORSEMENT
Facts
1The action arises out of the ditching of a helicopter owned by Capital City in the St. Lawrence River on August 26, 1995. The Plaintiff Mr. Portelance was a passenger in the helicopter. The Statement of Claim was served on June 9, 1997.
2Mr. Zuber became counsel of record in January 2010. In December 2011, he successfully brought a motion to increase the prayer for relief from $500,000 to $2,500,000.
3Mr. Allen, counsel of record for the Defendants, requested Ms. Drozd to assist him on the pre-trial motions. Ms. Drozd and Mr. Zuber appeared before me on August 7, 2013 in respect of several motions. The Court’s endorsement released on August 16, 2013 granted: (1) updated medical examinations of the Plaintiff to be conducted by four experts retained by the defence; and (2) disclosure to defence counsel of the Michigan lawyer’s file in relation to the Plaintiff’s 2009 motor vehicle accident litigation. Counsel made submissions on the remaining motions on September 3, 2010.
4The pre-trial is scheduled for October 18, 2013 and the trial is scheduled to commence the week of November 4, 2013. Defence counsel has scheduled an IME by Dr. Goldstone, a neurologist, for September 24, 2013.
Order
5I order the following:
Issue #1: Mr. Portelance is a professional photographer and videographer. The Plaintiff owns a company called Body Supreme Productions which receives payments for contracts and/or work performed by Mr. Portelance. Mr. Zuber shall obtain forthwith an authorization from the Plaintiff to obtain copies of the Income Tax Returns and Notices of Assessment for Body Supreme Productions from 1995 to the present. Mr. Zuber will serve Defendant’s counsel forthwith with all Income Tax Returns and Notices of Assessment that he receives from Revenue Canada.
Issue #2: There is a court order requiring the Plaintiff to produce corporate records for Body Supreme Productions and Broken Rock Productions. Mr. Zuber will write to Mr. Murphy, the Plaintiff’s accountant, and obtain written confirmation from Mr. Murphy, that he has searched his files and records and Mr. Murphy has sent all records in his possession, power and control in relation to the two corporations to Mr. Zuber.
Issue #3: Justice Morissette ordered the Plaintiff to write to the entity that owns or produced the movie titled “Sicko” to obtain all employment or contractual records with respect to the Plaintiff’s role in connection with the movie “Sicko”. The Defendants have not received the requested documentation. Mr. Zuber will obtain an authorization from the Plaintiff and/or his businesses or corporations authorizing defence counsel to write to Michael Moore and/or his production companies to provide employment services’ records relating to the Plaintiff or his corporations with respect to the movie “Sicko”.
Issue #4: Counsel for the defendants has received the Plaintiff’s decoded OHIP summary. Counsel for the defence may examine the Plaintiff in relation to his attendance at and treatment by the physicians listed at paragraph 1(d) of the moving parties’ factum.
Issue #5: The Defendants seek an order permitting Dr. Gladstone, a neurologist, to conduct an independent medical examination of the Plaintiff. The Plaintiff has complained that he suffers from headaches for many years. In his 2003 report, Dr. Snow, a neuropsychologist, suggested that the Plaintiff should be assessed by a physician for his headaches. Counsel for the Plaintiff served Mr. Allan, counsel for the Defendants, with a copy of Dr. Cooper’s report on May 4, 2012. The first time defence counsel requested that the Plaintiff be assessed by a neurologist retained by the Defendant was July 2013. Dr. Cooper’s report does not raise a fresh complaint or raise new factual or legal issues: (Fromm v. Rajani [2009] O.J. No. 3671 at para 9). I have not received any explaination why the proposed assessment could not have been performed in 2012 or early 2013. It is my view that if I granted the motion to permit Dr. Gladstone to conduct a defence medical, the trial would be delayed.
If the parties cannot agree about costs, counsel for the Defendants may make brief written submissions within 15 days of the release of these reasons and counsel for the Plaintiff has 15 days to make responding submissions.
Justice A.W. Bryant
Date: September 05, 2013