SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-28421

DATE: 2013/12/06

RE: CRYSTAL YOUNG, Plaintiff

AND:

REBECCA COMAY et al, Defendant

BEFORE: The Honourable D.A. Broad

COUNSEL:
J. Crannie - Counsel, for the Plaintiff
G. Mallia – Student-at-Law, for the Defendant Rebecca Comay

HEARD: December 3, 2013

ENDORSEMENT

[1] This motion is brought by the defendant Rebecca Comay (the “defendant”) for an Order requiring the plaintiff:

(a) to comply with various undertakings given by her at her examination for discovery;

(b) to answer requests refused or taken under advisement at her examination for discovery – in particular to produce all photographs that the plaintiff has access to what were taken of her from two years prior to the accident to the present;

(c) to produce all photographs of the plaintiff posted on her Facebook profile and her complete Facebook wall; and

(d) to undergo and produce a medical test, namely a bone scan, required by the physician retained by the defendant to conduct an independent examination of her.

[2] The action arises out of a motor vehicle accident which occurred on July 4, 2009 in which the plaintiff was injured. In the Statement of Claim the plaintiff alleged that she suffered severe and permanent personal injuries as well as pain and suffering and loss of enjoyment of life, has incurred out-of-pocket expenses and losses, and has sustained loss of income or economic opportunity. She also alleged that she is unable to perform housekeeping and home maintenance tasks that she did prior to the motor vehicle collision.

(a) Outstanding Undertakings

[3] Many of the undertakings which were outstanding at the time of service of the defendant's Motion Record had been satisfied prior to the hearing of the motion. The undertakings that remain in issue relate to:

(i) The SunLife health benefits file from three years pre-accident forward. Plaintiff’s counsel wrote to Sun Life requesting its "claims benefits file together with a claims benefits file summary" in reference to the plaintiff. Sun Life responded by providing a copy of its long-term disability file, however its health benefits file has not been produced;

(ii) The plaintiff’s employer's (Sears) payroll and attendance records for five years pre-accident forward. Plaintiff's counsel wrote to Sears requesting a complete copy of payroll and attendance records, but it has not responded to date;

(iii) an updated, decoded OHIP summary. Plaintiff's counsel wrote to the Ontario Ministry of Health requesting an updated decoded OHIP summary of the plaintiff, however it has not responded.

(iv) The complete clinical notes and records of the plaintiff's former family physician Dr. Reece from 2004 forward. Plaintiff's counsel wrote to Dr. Reece who responded that all of her records were left with Rosedale Medical Group, which records were provided to defence counsel. Defence counsel requests confirmation that the records produced are all of Dr. Reece' s clinical notes and records relating to the plaintiff.

[4] The plaintiff argues that it has satisfied its obligations to use best efforts to obtain the non-party records requested by defendant's counsel and that, if the defence is not satisfied with the speed or completeness with which the non-parties have responded, it may bring an appropriate motion pursuant to rule 30.10 for an order requiring production for inspection documents in the possession of the non-parties.

[5] No case law was cited by counsel with respect to the extent to which a party, who has undertaken to request documents from a non-party is required to follow up in the event that the non-party fails to respond adequately. In my view, a party who has undertaken to obtain such documents is under an obligation to take reasonable steps to obtain production from the non-parties. What would be considered reasonable depends on the circumstances of the case.

[6] With respect to the SunLife health benefits file, it appears that plaintiff's counsel was not explicit that the request was for the health benefits file, and when Sun Life produced its long-term disability file and not the plaintiff's health benefits file, a follow-up communication to SunLife would have been considered reasonable. Similarly, when the plaintiff's employer failed to respond at all within a reasonable time, one follow-up communication to the employer would be considered reasonable.

[7] The responding affidavit of Susan Hampson, a law clerk employed by plaintiff's counsel, indicates that there is currently a significant backlog within OHIP. Given that OHIP is a government body, it is expected that a response will be provided by it in due course and a follow-up at this stage would serve no useful purpose in accelerating the response.

[8] With respect to the clinical notes and records of Dr. Reece, notes and records have been produced by Rosedale Medical Group and there is nothing in evidence to suggest that it had held back production of any portion of Dr. Reece's records. If the defendant is not satisfied it has the ability to bring an appropriate motion under rule 30.10.

(b) Photographs and Facebook Profile

[9] The refusal of the plaintiff to produce photographs of herself, to which she has access, prior to and following the accident, and the request that she produce all photographs of herself posted on her Facebook profile and her complete Facebook wall, raise similar issues and can be usefully considered together.

[10] The plaintiff acknowledged on discovery that she does use Facebook, but stated that she did so "just to be in touch with my relations up north." She also acknowledged that she posted approximately 10 photographs of herself to Facebook, but they only depict her standing beside her children, as a "family picture". She testified that the photographs were posted just prior to the accident and that there are no photographs posted to Facebook post-dating the accident.

[11] The plaintiff was then asked whether she has any photographs of herself involved in activities before and after the accident to which she answered that she probably did somewhere and when asked what kind of activities the photographs depicted, her counsel instructed her not to answer.

[12] The Affidavit of Carolynn J. Wahlman, filed by the defendant in support of the motion, does not set forth any specific evidentiary basis for a suggestion that lack of access to photographs of the plaintiff in her possession or to which she may have access, and which are not posted to her Facebook profile, will adversely affect trial fairness, nor does it set forth why production of such photographs is requested or necessary. She simply stated that she believed that all of the requested information on the motion is relevant to the material issues in the action and that “it would be unfair to require the defendant to proceed to trial without having discovery of this information." Similarly, the Supplementary Affidavit of Kenneth J. Raddatz, filed on behalf of the defendant, does not address the need for such photographs.

[13] With respect to access to the plaintiff's Facebook profile, Ms. Wahlman deposes in her Affidavit that she conducted Facebook searches regarding the plaintiff, appended the results of the searches and that she requests access to all parts of the plaintiff's page including all photographs and her complete wall. There is no indication that the public portion of the plaintiff's Facebook profile depicts her engaging in any activities which would be relevant to the issues in the action. Mr. Raddatz, in his Affidavit, appends as an exhibit an e-mail from Ms. Hampson advising that Facebook “photographs have been requested and will be provided on Monday, November 18."

[14] Rules 30.02(1) and (2) provide that each party to an action is required to disclose, by means of an Affidavit of Documents, every document relevant to any matter in issue that is or has been in the party’s possession, control or power, and to produce every such document, unless privilege is claimed in respect of it.

[15] In the event that a party believes that a relevant document may have been omitted from an opposing party's Affidavit of Documents, or that a claim of privilege may have been improperly made, that party may move for relief under Rule 30.06. On such a motion, the Court may order cross-examination on the Affidavit of Documents, order service of a further and better Affidavit of Documents, order the disclosure of production for inspection of the document, if it is not privileged, or inspect the document with the purpose of determining its relevance for the validity of a claim of privilege.

[16] The foregoing rules serve to reinforce the critical importance of full and complete pre-trial disclosure of relevant documents to the proper functioning of the civil justice system. The general objective framing all of the Rules of Civil Procedure is to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits (see Rule 1.04(1)). The disclosure of all relevant documentary evidence is an important component to achieving that objective.

[17] Balanced against the policy in favor of complete pre-trial documentary disclosure is the principle of proportionality, recently reinforced and recognized in the amendments to the Rules of Civil Procedure, including rule 29.2. Courts have, in some instances, also recognized and given effect to privacy interests of parties and non-parties, beyond strict entitlement to privilege, in determining the extent of disclosure which may be required.

[18] A significant recent change impacting the scope of discovery was the amendment, effective January 1, 2010, to each of Rules 30.02 and 30.03 (respecting documentary discovery) and 31.06(1) (respecting oral discovery) removing the "semblance of relevance" test by replacing the phrase "relating to any matter in issue" with a new test, for both documentary and oral discovery, of "relevant to any matter in issue."

[19] With respect to the request for production of pre-accident and post-accident photographs depicting the plaintiff, the defendant relies upon the case of Parsniak v. Pendanathu (2010) ONSC 4111 (S.C.J.). Gordon, J., at para 19, observed:

The benefit of pre-accident and post-accident photographs ought to be obvious. The plaintiff claims to be unable to participate in the activities enjoyed prior to the accident and to a change in socialization. The change in function issue under Bill 198 necessitates evidence of pre-accident activity. In result, the photographs meet the semblance of relevancy test.

[20] Justice Gordon noted that the plaintiff acknowledged on discovery that she had photographs of herself from before and after the accident and that the photographs are said to depict involvement in family activities. Similarly, in the present case, the plaintiff acknowledged that she probably did have photographs of herself involved in activities prior to and after the accident.

[21] Although Justice Gordon made reference to the "semblance of relevancy" test (possibly in error since his decision post-dated the change in the test to "relevant to any matter in issue"), in my view, given the evidence elicited from the plaintiff on discovery that he had pictures depicting him engaged in activities, the result would have been the same under the new test. Photographs are documents within the ambit of Rule 30.02 and, as long as they are relevant to a matter in issue, they must be produced. However, the relief sought in the Notice of Motion in this case "to provide photographs of the plaintiff taken before and after the accident" is too broad as it will potentially capture many photographs which are not relevant to a matter in issue. Moreover, it goes beyond the question put to the plaintiff on discovery which was restricted to photographs of herself involved in activities before and after the accident.

[22] I would therefore order that the plaintiff serve a Supplementary Affidavit of Documents disclosing all photographs of herself, in her possession, power or control which are relevant to any matter in issue, including photographs depicting her engaged in physical, recreational, housekeeping, home maintenance or work-related activities for two years prior to the accident and during any period following the accident in respect of which she is claiming damages on the bases set forth in the Statement of Claim.

[23] With respect to photographs and postings on the plaintiff's Facebook profile, the situation is somewhat different. As indicated above, the plaintiff was asked on discovery about the nature of the photographs which she posted to the site and when they were posted. She testified that they do not depict her involved in any activities but rather they were family pictures depicting her standing with her children, and in any event, they were all posted prior to the accident.

[24] Before granting relief under Rule 30.06, the court must be "satisfied by any evidence" that a relevant document has been omitted from the party's Affidavit of Documents. Given that the question of whether there are any pictures posted to the plaintiff's Facebook profile which would be relevant to a matter in issue was explored on discovery, and the defendant has led no evidence calling into question the plaintiff's response that there were none, I am not satisfied, on the basis of the record before me, that a relevant document has been omitted by reason of the failure or refusal to produce the plaintiff's Facebook profile.

[25] Ms. Hampson has deposed in her affidavit that the plaintiff is willing to have her counsel review her Facebook page and photos and provide what is relevant to this litigation to defence counsel. Given this position, it is appropriate that the plaintiff be given an opportunity to carry out that exercise, through her counsel, and if the defendant is not satisfied with the response, her counsel may cross-examine the plaintiff on her Affidavit of Documents on this issue. In order to facilitate the review by plaintiff's counsel, the conducting of a cross examination of the plaintiff and the bringing of whatever motion may be considered appropriate following such cross examination, the plaintiff is ordered to preserve her existing Facebook content in the interim.

[26] In these circumstances, it is not necessary for me, at this stage, to conduct a balancing exercise between the obligation to disclose relevant documents with any privacy interests of the plaintiff or non-parties which may exist in the plaintiff’s Facebook postings, nor to attempt to reconcile the case law cited by counsel regarding the discoverability of Facebook content generally in civil proceedings.

(c) Bone Scan

[27] The defendant seeks an order requiring the plaintiff to undergo a bone scan, and makes reference to the report of Dr. Max Kleinman on his independent insurer examination of the plaintiff undertaken on January 8, 2013.

[28] At page 15 of his report, Dr. Kleinman makes reference to the plaintiff's complaints of difficulties with her right shoulder and that on physical examination she had signs and symptoms consistent with a possible internal derangement, such as a rotator cuff tear. He stated that "further investigation in the form of an MRI and bone scan would be reasonable. The bone scan would help to determine whether there is any glenohumeral joint arthopathy that may explain the symptomatology. The MRI would help to delineate the anatomy in order to determine whether there is any structural impairment. The results of those examinations could be used to determine whether other investigations and/or treatment are required specifically as it relates to the right shoulder. Further comment is deferred until I have had the opportunity to review those examinations.”

[29] At page 18 of his report, in response to a question on the need for any future treatment, diagnostic testing or assessment, Dr. Kleinman advised that he had made recommendations for a bone scan in addition to an MRI of the right shoulder.

[30] In her responding affidavit on behalf of the plaintiff, Ms. Hampson deposed that she had been advised by the plaintiff that she discussed the request for the bone scan with her family doctor who indicated that it was more appropriate to have an MRI of her shoulder and that a bone scan was unnecessary.

[31] It appears that the MRI has now been completed, however Dr. Kleinman has not yet provided a further report commenting on the results of it.

[32] Although not in the affidavit material, I am advised that a bone scan is somewhat invasive as it would involve an injection of a small amount of radioactive material into the plaintiff’s body to permit the scan to be conducted.

[33] The defendant points to the case of Carroll v. Wagg (1996) C.P.C. (4th) 351 (Master) which referred, at para. 16, to the case of Bellamy v. Johnson (1992) 1992 7491 (ON CA), 8 O.R. (3d) 591 (C.A.) for the proposition that the rule respecting independent medical examinations contemplates that the examination will be carried out in the fashion that, in the judgment of the doctor, best facilitates the examination, and that the quality of the examination is dependent on the skill and integrity of the doctor in conducting it, in a manner that will best facilitate discovery in the adversarial process. Of course the judgment of the doctor as to how the examination is to be conducted is not final and the Court has jurisdiction to set terms and conditions relating to the examination.

[34] The Master in Carroll, after observing that the plaintiff herself, in that case, had put her physical condition in question in the action, and bearing in mind section 105 of the Courts of Justice Act and Rule 33, ordered the plaintiff to re-attend to undergo the test that had been requested by the defendant's medical examiner. It is noted that the medical test referred to in Carroll included, as part of the process, an intravenous injection of dye into the body.

[35] Although the defendant in this case it did not file an affidavit from Dr. Kleinman, there is no serious basis to suggest that his opinion that the bone scan would be helpful in identifying an underlying cause for the symptomatology that the plaintiff presents is unreasonable or unfounded. According to Dr. Kleinman’s report, it is evident that the bone scan and the MRI are recommended for different purposes, and therefore the MRI is not a substitute for the bone scan.

[36] The plaintiff filed no affidavit or report from the plaintiff's family doctor, and no reason was presented for his reported opinion that a bone scan is unnecessary. Moreover, it was not reported that it was the family doctor’s opinion that the proposed bone scan would expose the plaintiff to unreasonable or unacceptable risk, pain or discomfort.

[37] Had the plaintiff wished to test or challenge the basis for Dr. Kleinman's opinion that a bone scan was recommended, it was open to the plaintiff to cross-examine him on the pending motion pursuant to Rule 39.03, as was done in Carroll. However that step was not taken.

[38] I am of the view that the defendant has established that it is in the interest of trial fairness that the plaintiff undergo a bone scan, as recommended by Dr. Kleinman and no undue prejudice to the plaintiff to having the scan conducted has been demonstrated.

Disposition

[39] For the foregoing reasons it is ordered as follows:

(a) the plaintiff shall write to Sun Life within 30 days to follow up on the request for its health benefits file respecting the plaintiff, and shall provide a copy of such correspondence to counsel for the defendant and shall produce the response of Sun Life to the defendant;

(b) the plaintiff shall write to Sears within 30 days to follow up on the request to provide its payroll and attendance records for the plaintiff for five years prior to the accident forward, and shall provide a copy of such correspondence to counsel for the defendant and shall produce the response of Sears to the defendant;

(c) the plaintiff shall, within 45 days, serve a Supplementary Affidavit of Documents disclosing all photographs of herself, in her possession, power or control, which are relevant to any matter in issue, including photographs depicting her engaged in physical, recreational, housekeeping, home maintenance or work-related activities for two years prior to the accident and during any period following the accident in respect of which she is claiming damages on the bases set forth in the Statement of Claim and shall produce to the defendant copies of photographs in respect of which no privilege is claimed;

(d) counsel for the plaintiff shall with 45 days review the plaintiff's Facebook page and photographs posted thereon and the plaintiff disclose photographs and postings which are relevant to the action by means of a Supplementary Affidavit of Documents Claim and shall produce to the defendant copies of photographs and postings in respect of which no privilege is claimed;

(e) in the event that the defendant is not satisfied with the response of the plaintiff respecting production of relevant photographs and postings to her Facebook profile, the defendant may, within 60 days following the response of plaintiff’s counsel, as aforesaid, cross-examine the plaintiff on her Affidavit of Documents;

(f) the plaintiff shall preserve the content on her Facebook profile and wall in its current form pending completion of the foregoing, and pending the disposition of any further motion by the defendant respecting the adequacy of production from the plaintiff's Facebook profile, which shall be brought within 90 days of the response of counsel for the Plaintiff respecting the content of the plaintiff’s Facebook profile;

(g) the plaintiff shall attend a bone scan as required by Dr. Max Kleinman, in order to complete his independent examination that originally took place on January 8, 2013 at Northwest Rehabilitation Associates, 960 Lawrence Avenue West, Suite 303, Toronto, Ontario. The defendant shall arrange for the plaintiff to attend the bone scan, and shall bear the plaintiff's transportation costs and the costs of the bone scan.

[40] If the parties are unable to agree on costs, they may file written submissions of no more than four pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 30 days. Such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7, Fax 519-741-3213. Each party may have 10 days following delivery of the other party’s submissions to file reply submissions, not to exceed two pages, double-spaced. If no submissions are received within 30 days, the parties will be deemed to have settled the issue of costs as between themselves.

Broad J.

Date: December 6, 2013