SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV95-612
DATE: 20131118

RE: Rene Bazinet v. Candice Elizabeth Sutherland, as litigation guardian of the Estate of Linda Carol Sutherland and of the Estate of Brian Robert Sutherland and Man-Air Services Ltd.

BEFORE: Ellies J.

COUNSEL: Wayne Stickland, for the Plaintiff/Defendant by Counterclaim
Alexandre Caza, for the Defendants/Plaintiffs by Counterclaim

HEARD: November 15, 2013

ENDORSEMENT

[1] In this motion, the defendants seek an order requiring the plaintiff to attend further medical examinations, pursuant to Rule 33 and s.105 of the Courts of Justice Act. They also seek an order that the plaintiff attend for a further examination for discovery. The parties have resolved the issue of the plaintiff’s further attendance at medical examinations, leaving only the issue of a further examination for discovery.

[2] This action was commenced in 1995 and is scheduled for trial in September, 2014. The plaintiff was examined for discovery on two occasions, namely on September 4, 2003 and June 24, 2004. The first examination for discovery dealt with the issue of the manner in which the accident occurred, as well as the issue of damages. The second dealt mainly with the issue of damages. Counsel for the defendants attempted to ask further questions relating to the issue of liability at the second examination, which counsel for the plaintiff refused to allow his client to answer on the basis that that issue had already been canvassed previously.

[3] The defendants concede that leave is necessary pursuant to Rule 48.04 (1) to require the plaintiff to attend any further examination for discovery, as a result of the fact that this action has been set down for trial (: Benedetto v. Giannoulias, [2009] O.J. No. 3218 (Ont. S.C.), at para. 20). They argue that leave should be granted as a result of three things, namely:

(a) a recent amendment to the plaintiff’s pleading with respect to particulars of the negligence alleged against the defendants;

(b) the fact that nine years have passed since the last examination for discovery of the plaintiff; and

(c) the recent production by the plaintiff of expert reports from an orthopaedic surgeon, a psychiatrist, and an occupational therapist.

[4] Leave to conduct a further examination for discovery will not be granted lightly. The party seeking such an order must demonstrate that a substantial or unexpected change in circumstances has occurred such that a refusal to make such an order would be manifestly unjust (: Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740 (Ont. Crt. (Gen. Div.), as cited in Benedetto, at para. 14).

[5] I am not persuaded that either the second or the third ground put forward by the defendants, alone or in combination, is sufficient. With regard to the second ground, the mere passage of time cannot amount to a substantial or unexpected change in circumstances. That is especially true where, as Karam J. found earlier in this case, the blame for that delay lies with both sides of the dispute (see his reasons of July 18, 2012, found at 2012 ONSC 3480, para. 7).

[6] With respect to the third ground, the defendants have not adduced any evidence that the contents of the reports contain any substantial or unexpected change in the plaintiff’s case. Moreover, because the parties have agreed that the plaintiff will attend medical examinations by experts in each of the fields covered by the plaintiffs’ reports, I see no prejudice to the defendants.

[7] The first ground advanced by the moving parties, however, causes me some concern. The plaintiff’s pleading was amended after this action was set down for trial. Had the amendments to the statement of claim simply reflected the contents of a report prepared on behalf of the Transportation Safety Board of Canada dated May 19, 1993, I would have no concerns. That report was in the hands of the parties at or about the time that this action was commenced. Therefore, the defendants were able to examine the plaintiff for discovery with respect to its contents. However, the amendments do not exactly mirror the report. In the report, the Board determined that the engine failure in question was probably due to “fuel starvation” or “fuel exhaustion”. However, the amendments to the statement of claim refer to fuel saturation and fuel exhaustion. It may be that this is simply a typographic error. However, the defendants have a right to know if that is the case and, if not, the grounds upon which the amendments were made. It would be unjust to refuse to allow them to obtain this information in advance of trial.

[8] Nonetheless, Rule 29.2.03 (1) requires the court to consider a number of factors relating to the proportionality principle when determining questions relating to pretrial discovery. As well, Rule 31.05.1 (1) (which was not in effect at the time the examinations for discovery of plaintiff in this case were completed) limits the examination for discovery of a party to seven hours, without leave of the court. That amount of time has already been exceeded in this case. Bearing that in mind, together with the proportionality principle, the plaintiff shall be required to attend a further examination for discovery of no more than one hour in length, for the purpose of answering questions arising from the amendments to the statement of claim. The examination shall take place within 60 days, unless the parties agree otherwise.

[9] During the hearing of the motion, I canvassed with both counsel the issue of costs. Although Mr. Stickland requested that both sides be given an opportunity to make written submissions, I do not feel that the issue of costs needs to be addressed in writing in a relatively straightforward motion such as this one.

[10] Mr. Caza submitted that the successful party ought to be awarded partial indemnity costs of between $3,000 and $3,500. I might agree, had the plaintiff been entirely successful, but I do not agree that the defendants ought to be awarded that amount in the circumstances of this case. In my view, the defendants’ motion for leave to conduct a further examination for discovery based on amendments to the plaintiff’s claim ought to have been brought when they appeared to oppose the plaintiff’s request to amend, not at this late date. Had that been done, there would have been substantial cost savings to the defendants.

[11] For that reason, I fix the costs of the motion in the amount of $1,000, inclusive of taxes and disbursements. Given the nature of the motion, I would award those costs to the defendants only in the cause.

[12] An order will issue to the above effect. The parties have agreed that the order shall also contain the following terms:

(a) The plaintiff shall attend for medical examinations, at the defendants’ reasonable expense, with the following individuals on the following dates, namely;

a. Ellen Kipkus, on January 16, 2014;

b. Dr. Joel Sadavoy, on January 20, 2014; and

c. Dr. Joseph Schatzker, on January 22, 2104;

(b) The defendants shall request that the individuals referred to above complete their written reports as quickly as reasonably possible;

(c) The defendants shall provide copies of the aforementioned reports to the plaintiff within 10 days of the receipt thereof;

(d) This order shall be without prejudice to the plaintiff to contest the non-compliance with any time requirement set out in the Rules of Civil Procedure.

Ellies J.

Date: November 18, 2013