COURT FILE AND PARTIES

COURT FILE NO.: 1-50518

MOTION HEARD: December 5, 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Fallon Peever, Plaintiff

AND:

Kaitlyn Waite and Carol Leroux, Defendants

BEFORE: Master Pierre E. Roger

COUNSEL:
David Cutler, counsel for the Plaintiff/Responding Party

Michael Raymond Switzer, counsel for the Defendants/Moving Party

HEARD: December 5, 2013

REASONS FOR DECISION

[1] This is a motion by the Defendants seeking various forms of relief relating to discovery issues and a second medical examination.

[2] The action arises out of a motor vehicle accident that occurred on February 3, 2009. The Plaintiff was stopped at a red light when her car was struck from behind by the Defendants’ vehicle.

[3] The Plaintiff is 30-years-old and prior to the accident was working as a client service representative with the City of Ottawa for about six years.

[4] In her amended statement of claim, the Plaintiff claims significant damages for non-pecuniary damages, loss of income and other pecuniary losses. She claims for damages resulting from a central disc herniation, a disc bulge a whiplash associated disorder and trauma. She also alleges that she has sustained serious personal injuries and a permanent serious disfigurement and/or permanent serious impairment of important physical, mental or psychological functions. She alleges that her injuries were accompanied by a great amount of pain, substantial suffering, mental anguish, depression and discomfort. She claims that her enjoyment of life has been substantially lessened and that she continues to suffer and will be unable to pursue her normal social and recreational activities and will continue to suffer a loss of income in the future.

[5] The examination for discovery of the Plaintiff occurred on December 2, 2011. During that examination, the Plaintiff indicated that she had been involved in a prior motor vehicle accident that she believed was in or around May 2005 or May 2006, she was not 100 percent certain of the date. She indicated that there was damage to her vehicle of about $2000.00 and some physical injuries to her in the form of a whiplash. Her counsel recently sent a letter to opposing counsel correcting the date of the accident to May 17, 2002.

[6] The Plaintiff has produced the relevant clinical notes and records of treating health professionals for the period three years pre-accident to date.

[7] This motion was not brought as a motion seeking answers to outstanding undertakings and a ruling on objections and the Defendants did not prepare and exchange with the Plaintiff a refusals and undertakings chart in form 37C as required by rule 37.10 (10).

[8] A request is made to transfer this action into case management. That request is dismissed. Rule 77.05 (4) provides the applicable criteria and these are not met. This action has been set down for trial and only a limited number of case management issues could remain. No evidence has been provided about these but obviously some outstanding issues will be dealt with by this endorsement and some may be dealt with when this matter returns to a pre-trial such that a need for additional court intervention in the form of case management at this late stage in the action has not been demonstrated.

[9] A request is made for the Plaintiff to provide a further and better affidavit of documents within 30 days, which must include specific documents outlined by the Defendants at paragraphs 2 (a) through to (s) of the amended motion record. Some of these requested documents are outstanding undertakings, some are refusals and some are newly requested documents but the Defendants have not differentiated between these requests as to what they are (outstanding undertakings, refusals or new requests) and, as indicated above, have not exchanged with the Plaintiff or provided to the court a refusals and undertakings chart. Rule 37.10 (10) must not be ignored and should have been followed by the Defendants on this motion.

[10] Rule 37.10 (10) is a helpful rule designed to streamline undertakings and refusals issues. It allows the parties to identify clearly what if anything is outstanding. As well, it allows the court to proceed more expeditiously with such motions. By simply looking at the chart one can observe what is outstanding or sought and why it is or is not relevant. An illustration of how helpful such charts may be is provided, to some extent, by this motion. Indeed, after serving their motion record without first exchanging a chart the Defendants had to deliver an amended motion record once they realized that some of the documents requested in the motion record had previously been provided by the Plaintiff. Parties who do not comply with this rule, run the risk of the motion being adjourned or, when appropriate, dismissed.

[11] What follows is my ruling on the requested disclosure (in the same order as it appears in the amended motion record):

(c) copies of all documents in the Plaintiff’s action against the City of Ottawa and Manulife Financial that are relevant to the matters in issue in this action

At the time of this accident, the Plaintiff was an employee of the City of Ottawa. A claim for long-term disability benefits was made, litigated to some extent and settled. In her affidavit, sworn October 11, 2013, the Plaintiff indicates that copies of all documents identified in her action against Manulife and the City of Ottawa that are relevant to the matters in issue in this action have already been produced and are disclosed in her affidavit of documents sworn March 20, 2013. The Defendants have not produced any evidence to contradict the above.

It appears, from the Plaintiff’s oral presentation at this motion, that the only such documents listed but not produced are those found at Schedule B of her affidavit of documents - the settlement documents resulting from the resolution of that action. Mr. Cutler explains that these documents contain a confidentiality clause explaining, he claims, why privilege was claimed. However, it appears that that these documents were never specifically requested by the Defendants. Certainly, the Defendants’ motion does not seek a ruling on the claim of privilege made on these documents. This is another illustration of the usefulness of a refusals and undertakings chart. Parties are to attempt to narrow the issues prior to bringing such motions and one tool is the chart.

This request is dismissed as all such relevant documents have been disclosed. The Plaintiff is directed to seek the consent of the third parties allowing for the disclosure of these documents to the Defendants and thereafter to advise the Defendants of her position on the claim of privilege with particulars of the alleged privilege. The Plaintiff shall provide to the Defendants a copy of the letters of requests and letters received from these third parties re this request. Failing a satisfactory resolution, the Defendants may bring a motion to resolve the claim of privilege on these documents as this is not currently before this court.

(f) a copy of the Plaintiff’s medical file from the Queensway-Carleton Hospital for the period from February 3, 2005, to the present (except for those periods for which the file has already been provided).

I understand that these records have been produced for the period of time going back three years before the accident. If that is not the case then these documents or any outstanding documents from the Plaintiff’s medical file at this Hospital shall be produced for the period from February 3, 2006, onward. On the evidence presented on this motion, this period will allow for reasonable and sufficient relevant disclosure.

(g) a copy of the Plaintiffs medical file from Dr. Rabb for the period from February 3, 2005, to the present, or for the period from which Dr. Rabb first prescribed Immovane or any medication to treat any psychological condition – whichever is earlier.

Same as per the above at (f). If any such document (s) is outstanding or not produced for the period from February 3, 2006, onward, it shall be produced.

(h) a transcription of the illegible clinical notes of Dr. Rabb.

The Plaintiff agrees that some of the notes of Dr. Rabb are illegible and the Plaintiff has written to Dr. Rabb to request a transcription of his notes.

The Plaintiff is to disclose to the Defendants a copy of all letters of request to Dr. Rabb and letters received from Dr. Rabb regarding a transcription of his notes. Failing a satisfactory resolution, the Defendants may bring a motion seeking such transcription from Dr. Rabb.

(i) a copy of the Plaintiff’s academic transcript from Algonquin College

The Plaintiff had been working for the City of Ottawa for six years prior to this accident. At her examination for discovery, the Plaintiff provided information relating to her education. She confirmed where she studied and what diploma she received. An actual transcript of her academic results is at best tangentially relevant to the pleadings and issues raised in this action. More evidence of why this is required would be required and I find these not relevant in the circumstances of this action. Moreover, I find that it would not be reasonable, in the circumstances considering the claims and issues raised in this action, to order these produced when considering proportionality.

Same finding and ruling as above in (i) for (j) and (k). It is not in all personal injuries actions that a high school or college transcript is relevant and this case is an example of when it is not and, in any event, in these circumstances, a disproportionate request.

(l) a copy of the property damage file from the motor vehicle accident that the Plaintiff was involved in in May 2005 or May 2006 or confirmation from the investigation police agency confirming that no such records exists

This, in the circumstances of this action, is not relevant. In this action the Plaintiff has provided sufficient information about this earlier accident at her examination for discovery such that the actual property file is not relevant. What is relevant to this ongoing action is whether any injuries from this earlier accident were and are ongoing and this will be in the medical documentation produced for the period before the accident. It will not be in the property file of the earlier accident. I note that the property file of an earlier accident can in some actions be a relevant request but not in all actions and not in this action considering the evidence on discovery where the Plaintiff provided details of this earlier accident and disclosure of medical documentation for the period three years pre-accident.

(m) a copy of the statutory accident benefits claim file from the motor vehicle accident that the Plaintiff was involved in in May 2005 or May 2006 or confirmation from the Plaintiffs insurer confirming that no such records exists;

This is not relevant for the same reasons as outlined above. What is relevant is how this Plaintiff was doing in the years before the accident and this will be sufficiently disclosed in the medical disclosure pre-accident. The documents contained in the AB file for this prior accident will not assist in this regard considering the time between this earlier accident and the accident in this action of more than three years and maybe more than six years and the pre-accident medical disclosure to date from 2006 onward.

(n) a complete and unredacted copy of the medical file from Dr. Kim;

I have reviewed the complete file of Dr. Kim and find that it must be produced in its entirety without any portion redacted. The redacted portions contain relevant information to issues relating to damages. It is relevant to damages and although private, sensitive and embarrassing must be produced. This is quite different from the situation in Dupont v. Bailey, 2013 ONSC 1336.

(o) copies of all correspondence sent and received to and from third parties related to obtaining any documents listed in the original and/or further and better affidavit of documents and/or that are ordered to be produced in this motion;

I see no reason why this should be produced or ordered as a matter of course and for the reasons outlined in the Plaintiff’s factum this request is dismissed as it applies to all such correspondence. This can be better addressed on a case by case basis with specific evidence of issues over disclosure.

(p) a complete copy of Dr. Ouellette’s medical file for the period from February 3, 2005, to the present (except for those periods for which the file has already been provided);

The undisputed evidence of the Plaintiff is that a complete copy of the medical file of Dr. Ouellette has been disclosed from the first visit in 2010. Again, this is an example of the potential usefulness of the chart. This request is dismissed.

(q), (r) and (s) copies of all diagnostic images that are available on CD-ROM for the period from February 3, 2005, to the present for each of Queensway-Carleton Hospital, Ottawa Hospital-Civic campus and Ottawa Hospital-General campus;

This is allowed but only as per the undertaking actually given for this at discovery as outlined at Q. 815 – to produce same for purposes of providing same to a medical expert of the Defendants from three years before the accident onward. At the moment there is nothing to produce for this as we have no evidence of any expert of the Defendants requesting same.

[12] On this motion, the Defendants undertook to cover reasonable disbursements associated with the Plaintiff obtaining the above documents.

[13] The Plaintiff shall provide an updated affidavit of documents within the next 60 days.

[14] The Plaintiff shall re-attend at an examination for discovery to answer questions arising out of newly disclosed documents. The costs for same shall be in the cause and disbursements associated with these shall, on an immediate basis, be covered by the requesting party.

[15] The Plaintiff shall attend at a neuropsychological medical examination with Dr. Peter Judge at a date and time to be fixed by Dr. Judge. I disagree with the Plaintiff’s arguments that rule 48.04 is applicable. On the evidence presented, the Defendants have not consented to the action being placed on a trial list. The authorities provided on this point by the Plaintiff are not applicable to the circumstances of this case as the Defendants did not consent to this action being placed on a trial list. Further, the psychological condition of the Plaintiff is clearly at play on the pleadings, this examination has been recommended and is required in fairness to the Defendants putting forth a complete defence.

[16] Any party who is not in default of these rules or an order of the court and who is ready for trial may set the action down for trial by following the procedure prescribed by the rules. This has consequences on the party who sets the action down for trial and also on any party who consented to the action being placed on a trial list. These consequences should not be imposed on other parties to the action unless any such party consented to the action being placed on the trial list. Such evidence is required as otherwise imposing these consequences would be unfair to parties who are not ready for trial. This is exactly such a case. Simply agreeing to a pre-trial date is not sufficient. We require the party setting the action down for trial to provide this information to the court and imposing such consequences on a party who simply indicates when he or she is not otherwise engaged would result in the other parties simply refusing to cooperate. Responding to opposing counsel is a professional obligation and indicating that, on your calendar, you could attend a pre-trial on certain dates is not, subject to the evidence, the same as consenting to the action being placed on the trial list. To be safer and avoid such arguments, the prudent counsel might wish to make it clear that although dates are provided out of courtesy and professional obligation that party is not ready for trial, not ready for a pre-trial and is not consenting to the action being placed on a trial list.

[17] If the parties cannot agree on costs of this motion then brief written submissions of not more than two pages per party shall be provided to my Registrar on the following schedule: by the Defendants within the next 30 days and by the Plaintiff within 10 days of receiving the Defendants submissions. At the latest any and all costs submissions should be with the court by January 31, 2014.

Master Pierre E. Roger

Date: December 20, 2013