Ontario Superior Court of Justice
Court File No.: C-10947-08
Date: 2013-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. P.J. ROCHELEAU and ESPANOLA VETERINARY PROFESSIONAL CORPORATION carrying on business as ESPANOLA ANIMAL HOSPITAL
Plaintiffs
– and –
OSPREY MEDIA PUBLISHING INC. carrying on business as MID-NORTH MONITOR, ROSALIND RABY and LORI BRAULT
Defendants
Alvin M. Meisels, for the Plaintiffs
Brian MacLeod Rogers, for the Defendants
HEARD: September 16, 2013
DECISION ON MOTION
R.D. GORDON j.:
Overview
[1] The Plaintiffs and the Defendants have been unable to conduct examinations for discovery. The Defendants insist the Plaintiffs provide certain documentary disclosure before embarking upon examinations. The Plaintiffs have refused to do so. The motions before me are to address the production and discovery obligations of the parties.
Background
[2] The Plaintiffs have sued the Defendants for defamation in respect of the publication of a series of letters in April of 2008, alleging that they failed to discharge their functions as a veterinarian and animal hospital on February 14, 2008. The claim was issued on June 11, 2008.
[3] Quite apart from the issues on these motions, there has been considerable delay in having this litigation progress due to the death of counsel who first represented the Plaintiffs, a change in Plaintiffs’ counsel at a subsequent date, and the death of Ray Ethelson, publisher of the Defendant Mid-North Monitor.
[4] There have been two status hearings conducted. At the first, a litigation timetable was imposed by Justice Poupore. When it became clear that timetable could not be met, a subsequent endorsement by Justice Gauthier simply provided that the matter be set down within six months of the completion of discoveries.
[5] The disagreement with respect to the Plaintiffs` disclosure obligations in advance of oral discovery has existed since the summer of 2009. The Corporate Plaintiff has served a sworn affidavit of documents. Dr. Rocheleau has not.
[6] The Defendants take the position that the Affidavit of Documents is deficient because it fails to include documents which are of relevance. They say those documents are necessary to properly conduct the oral discovery of Dr. Rocheleau and that failure to produce those documents in advance will ultimately necessitate a subsequent further examination.
[7] The Plaintiffs say the Defendants are attempting to pre-determine the scope of discovery in the abstract and without adequate evidence to establish the relevance of the documents in question. They say that if those documents are determined, through oral discovery, to be relevant, they will then be disclosed and a further examination arranged.
[8] The documents the Defendants wish to have in advance of oral discovery are the following:
The Plaintiffs’ records of appointments and activities of Dr. Rocheleau on February 14, 2008 and for a few days before and after that date.
Client files for the 33 clients alleged to have left the Plaintiff’s veterinary practice as a result of the publication by the Defendants.
Other Records in support of the expert report on damages authored by Freelandt Caldwell Reilly, Chartered Accountants, dated July 8, 2009.
Financial records of the predecessor of the Plaintiffs.
A list of clients who received notices from the Plaintiffs.
Applicable Law
[9] It is generally accepted that production and discovery exist to enable an examining party to know the case it has to meet, to obtain admissions which will dispense with other formal proof of its own case, and to obtain admissions which will compromise the opponent’s case. For an examination to be effective, it is important that all relevant documents be produced in advance [see Kay v. Posluns, 1998 CarswellOnt 917].
[10] It follows that one of the issues I must determine is the relevance of the documentation requested by the Defendants. Relevance is determined in the context of the issues raised by the pleadings.
[11] A second issue I must consider is proportionality. In particular, I must consider the factors set out in Rule 29.2.03 and apply the rules to secure the just, most expeditious and least expensive determination of this action on its merits.
[12] Although it has always been a requirement that an examining party serve an affidavit of documents before beginning its examination, I think it fair to say that such affidavits have not always been fulsome and counsel often expect to unearth additional documents at examination. An undertaking is then given to produce the document and the examining party reserves the right to examine further when the production has been made. However, with proportionality now at the forefront of many procedural considerations, this is a practice that can no longer be justified or sustained. It results in time lost and significant additional costs.
Analysis
Records of Appointments and Activities on February 14
[13] The Plaintiffs position is, in part, that on February 14, Dr. Rocheleaus time was fully engaged dealing with regular clients. In fact, the Statement of Claim alleges that he drove almost 500 kilometres in a snow storm that day. Surely the record of appointments and activities kept by the Plaintiffs for that day would be relevant in determining where he was, when and for what purpose. All of this information is relevant to the issues as framed by the pleadings and must be disclosed. None of the considerations contained in Rule 29.2.03 would apply so as to negate the requirement to produce.
[14] I am not persuaded that similar records for a few days before and after are required for purposes of context. Those records would not hold directly relevant information. Whether such contextual assistance is required can be determined following production and examination of Dr. Rocheleau.
Client Files for the 33 Clients Alleged to have left due to publication
[15] The Plaintiffs have identified 33 clients it alleges left the veterinarian practice as a result of the publication. That those clients left due to the publication is the foundation for a significant aspect of the Plaintiffs` claim for loss of revenue. Clearly, any documentation in those client files which touch upon the reason(s) for leaving would be relevant to this action. The considerations set out in Rule 29.2.03 do not impact on this issue.
Other Records in Support of the Expert Report
[16] The calculation of damages provided by the Plaintiffs` expert is premised on three key factual underpinnings: (1) The number of clients who left due to the publication; (2) The average annual revenue per pet for these clients; and (3) The average length of the veterinarian-client relationship.
[17] It is clear from the evidence before me that these factual underpinnings were not investigated or determined by the experts independently. In my view this takes the production request outside the parameters of decisions such as Kaptsis v. Macia et al 1990 6675 (ON SC), 74 O.R. (2d) 189 in which it was determined that a party need not produce the notes and records of its experts if the disclosed report includes the factual findings upon which the expert opinion is based. In the case before me, the expert simply accepts the factual findings related by Dr. Rocheleau.
[18] I have already determined that any documentation in the client files which touch upon the reason(s) for leaving are relevant and must be disclosed.
[19] The average annual revenue per pet is a number arrived at by the Plaintiffs without expert assistance and is based upon client documents in their possession. Clearly those client records upon which the Plaintiffs based their calculations are relevant to the issue of damages and must be produced.
[20] The average length of the veterinarian-client relationship appears to have resulted from a manual audit also conducted by Dr. Rocheleau of a sample of 262 inactivated patient records, again without the assistance or direction of the expert. Those sampled were apparently regular clients whose files were inactivated during 2007 and 2008 for various reasons. As these files form one of the bases of the damages calculation advanced by the Plaintiffs, they are relevant and must be disclosed.
[21] There is nothing in the considerations set out in Rule 29.2.03 that would warrant an order to the contrary.
Other Financial Information
[22] The Plaintiffs acquired the Espanola Animal Hospital business as of May 1, 2007. As the alleged libel took place in April of 2008, there is no previous financial information that can be used for comparison to the losses alleged. The Defendants take the position that if the Plaintiffs were provided with financial information concerning the operation of the veterinary service prior to May 1, 2007, such information would provide relevant and probative information of the financial damages alleged.
[23] In my view, the Defendants request for production of these documents is premature. Although one may speculate as to the relevance of these documents, there is simply not a sufficient factual foundation before me to make that finding. For example, I have no evidence that the Plaintiffs practice maintained all of the same services provided by its predecessor; I have no evidence that it involves the same number of practising veterinarians; I have no evidence of the length of time the predecessor was in practice and what levels of client retention might reasonably be expected on the turnover of such a practice. These and other questions would need to be answered in order to determine whether in fact the records in question are relevant.
Clients Receiving Notices
[24] I fail to see the relevance of the Plaintiffs` mailing list to the issues in this litigation. The Plaintiff has alleged that the Defendants Rosalind Raby and Lori Brault were not clients of their veterinary practice. The Defendants do not dispute this.
Confidentiality
[25] The Plaintiffs have also objected to the production of many of the documents requested by the Defendants on the basis of the confidentiality of the client records.
[26] As provided by the Court of Appeal in St. Elizabeth Home Society v. Hamilton (City) 2008 ONCA 182, the interest in confidentiality must be balanced against the interest in the proper administration of justice, and claims to privilege must be resolved on a case-by-case basis. The four criteria for establishing a confidential relationship that will enjoy the protection of privilege are:
The communications must originate in a confidence that they will not be disclosed.
This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
The relation must be one which in the opinion of the community ought to be sedulously fostered.
The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit gained for the correct disposal of litigation.
[27] The Plaintiffs provided no evidence in support of any of these four criteria. The issue was not addressed in their factum. They advanced no argument on point save to allege that the documents are confidential. In the circumstances they have not met the onus of establishing a relationship requiring the protection of privilege.
Litigation Timetable
[28] The Plaintiffs are intent upon pursuing this litigation. It is in the interests of all parties that it not be allowed to languish any longer. It is appropriate that a timetable to set to move the matter forward. Accordingly, it is ordered that examinations for discovery of all parties be completed no later than March 31, 2013; that any motions arising from examinations for discovery be filed not later than June 30, 2014; and that this matter be set down for trial no later than September 1, 2014.
Conclusion
[29] The Plaintiffs shall provide a fresh Affidavit of Documents providing for the additional documentary disclosure ordered herein not later than December 31, 2013. This action shall then follow the litigation timetable I have set out above.
[30] In the event the parties are unable to agree on costs, they may make written submissions to me within 45 days, not to exceed four pages each, exclusive of attachments.
Mr. Justice Robbie D. Gordon
Released: September 26, 2013
COURT FILE NO.: C-10947-08
DATE: 2013-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. P.J. ROCHELEAU and ESPANOLA VETERINARY PROFESSIONAL CORPORATION carrying on business as ESPANOLA ANIMAL HOSPITAL
Plaintiffs
– and –
OSPREY MEDIA PUBLISHING INC. carrying on business as MID-NORTH MONITOR, ROSALIND RABY and LORI BRAULT
Defendants
DECISION ON MOTION
R.D. Gordon J.
Released: September 26, 2013