ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-10,428/07
DATE: 2014-03-31

BETWEEN:

Belinda Patchett and Steven Patchett

Plaintiffs

– and –

1582683 Ontario Limited operating as Battistellis’ Independent Grocer, Loblaw Companies Limited and IPCF Properties Inc.

Defendants

James M. Ross, for the Plaintiffs

Paula J. Thomas, for the Defendants

HEARD: March 28, 2014

Reasons for judgment

GAUTHIER, J.

The Motion:

[1] The Defendant seeks an Order that the Plaintiffs comply with their undertakings given at their Examination for Discovery on June 9, 2011, on or before April 28, 2014.

[2] The action arises out of a slip and fall incident which occurred on February 10, 2003, in the parking lot of Battistellis’ Independent Grocer in Lively, Ontario.

[3] The Statement of Claim was issued on September 20, 2007. The Statement of Defence and Cross-Claim of the numbered company was delivered on September 2, 2009, and, on January 15, 2010, Loblaws and IPCF Properties filed their Statement of Defence and Cross-Claim.

[4] The Examinations for Discovery of the Plaintiffs were conducted on June 9, 2011, at which time the Plaintiffs gave a number of undertakings.

[5] Defendants’ counsel made a number of requests for fulfilment of the undertakings:

a. Letter dated October 11, 2011;

b. Letter dated December 20, 2011;

c. Letter dated February 18, 2013;

d. Letter dated March 21, 2013;

e. Letter dated May 28, 2013;

f. Letter dated August 27, 2013; and

g. Letter dated November 12, 2013, which also advised that a motion would be brought.

[6] In addition to the above requests for compliance with the undertakings, there was an Order, made at the Pre-Trial in this matter on March 20, 2013, that the outstanding undertakings were to be satisfied within a reasonable period of time.

[7] As well, and in addition to the above requests and Order for compliance with the outstanding undertakings, counsel for the Plaintiff and for the numbered company had a telephone conversation, on November 19, 2013, during which Plaintiff’s counsel undertook to deliver answers to all outstanding undertakings within 30 days, that is, before December 19, 2013. The telephone conversation was confirmed by letter on the same date.

[8] The Notice of Motion for compliance with the undertakings was served on February 10, 2014.

[9] Certain of the undertakings were addressed by way of letter from Plaintiff’s counsel dated March 18, 2014.

[10] The trial is to proceed on May 19, 2014, for two weeks.

[11] Defendants’ counsel advised that she is attempting to schedule a mediation in this matter in advance of the trial date.

Moving Party’s Position:

[12] The majority of the undertakings remain outstanding, either partially or completely. As a consequence, Defendants’ counsel has been unable to properly assess damages, as it should be able to do, well in advance of the upcoming trial, and/or to prepare for a meaningful mediation.

[13] Originally, the Notice of Motion sought an Order dismissing the action for failure to answer the undertakings however, this was not pursued at the hearing.

Plaintiffs’ Position:

[14] In their responding material, the Plaintiffs took the position that (a) the undertakings had been satisfied, and that (b) the undertakings had been to provide information “to the present”, that being the date of the Examination for Discovery, and that any information relating to the time period after the date of the Examination for Discovery (June, 2011), would be governed by Rule 25.06(9)(b) which provides that where a pleading claims relief, the nature of the relief claimed shall be specified and, where damages are claimed, “the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be delivered forthwith after they become known and, in any event, not less than ten days before trial.”.

[15] At the hearing of the Motion, Plaintiffs’ counsel appeared to concede the ongoing disclosure obligation and pointed out that material relating to matters post June, 2011, had, in fact, been produced to Defendants’ counsel notwithstanding the initial position taken on the interpretation of the words “to the present”.

The Undertakings:

[16] At the hearing of the Motion, both counsel agreed that the Undertakings Chart prepared in the moving party’s Supplementary Motion Record was the appropriate document for use on the motion, and that it correctly set out the matters that continued to be in issue between the parties. Certain of the disputes around the outstanding undertakings have been resolved by counsel since the chart was prepared. Accordingly, I will be dealing ONLY with those matters that remain either outstanding or in dispute between the parties.

[17] I will deal with each of the relevant undertakings in turn, relying on the Undertakings Chart. However, before I engage in that exercise, I conclude that there was and continues to be an obligation on the Plaintiffs to produce the information they undertook to produce, not only to the date of the Examination for Discovery, but on an ongoing basis leading up to trial.

[18] The Plaintiffs’ Claim includes claims for past and future care costs, and, claims for past and future out-of-pocket expenses. This necessarily implies ongoing loss, or expenses, or other quantifiable damages.

[19] Litigants cannot rely on the provisions of Rule 25.06(9)(b) to avoid or delay the delivery of particulars relating to the claims they advance, until 10 days before trial, thereby preventing Defendants from properly assessing the damages claimed and from adequately preparing for trial.

[20] A litigant cannot simply take the position, in reliance on Rule 25.06(9)(b), that the information was not “known” or available until 10 days before trial.

[21] To be clear, a party cannot, after having undertaken to provide information, sit back and do nothing until 10 days before trial. There is a positive obligation on litigants to take reasonable steps to obtain and produce “forthwith” the information undertaken to be provided.

#1. Question 182:

(i) to produce the tax return of Belinda Patchett for the year 2011;

OUTSTANDING

(ii) to produce the tax return for Belinda Patchett for 2013 once it becomes available;

OUTSTANDING

(iii) to produce the Notices of Assessment of Belinda Patchett for the years 2000 to 2013 inclusive;

OUTSTANDING

(iv) to produce the tax return for Steven Patchett for the year 2000;

OUTSTANDING

(v) to produce the tax return for 2013 for Steven Patchett once it becomes available;

OUTSTANDING

(vi) to produce Notices of Assessment for Steven Patchett for the years from 2000 to 2006, for 2012, and for 2013 once it becomes available;

OUTSTANDING

#2. Question 185:

To produce the financial statements for Copper Cliff Auto for 2013.

OUTSTANDING

#3. Question 172:

(i) to produce the response from OHIP to counsel’s request, on March 10, 2014, that OHIP provide Plaintiff Belinda Patchett’s decoded summary from September 3, 2011 to the present, and, the response to the request that OHIP advise of the existence or not or records pre-dating April 1, 2004.

OUTSTANDING

(ii) to produce Dr. Lesley Mitchell’s clinical notes and records from October 9, 2012, to the present.

OUTSTANDING

(iii) to obtain from Dr. Mitchell confirmation that she has/does not have any further clinical notes and records of Dr. T. Carscadden, in addition to those clinical notes and records from 2001 to 2006 which were delivered prior to the Examination for Discovery. If she has, that they be produced.

OUTSTANDING

#5. Question 490:

To comply with the Rules in terms of specifying the plaintiff’s out-of-pocket expenses, including payments for prescription medication.

Initially, Plaintiffs’ counsel took the position that there was no undertaking or obligation to provide the prescription summary (which would include the cost of the prescription medication). Nonetheless, Plaintiffs’ counsel requested those prescription summaries from the Walden Family Pharmacy and the Drug Store.

The Walden prescription summary has been provided. The Drug Store prescription summary was requested by Plaintiffs’ counsel by letter dated March 17, 2014.

I conclude that the Plaintiffs are under the obligation to provide the particulars of the out-of-pocket expenses for prescription medication and that obligation has only been partially satisfied.

Therefore this undertaking is OUTSTANDING.

#7. Question 574:

To advise of the particulars of the past and future cost of care.

Plaintiffs’ counsel’s position is that this undertaking is satisfied. He relies on the Plaintiffs’ Pre-Trial Conference Memorandum and the documents attached thereto, more specifically, Dr. Cisa’s Reports of 2006 and 2012, the Functional Capacity Report, the Occupational Therapy, Housekeeping and Home Maintenance Report, and, Dr. Robinson’s Report.

As I understand Plaintiffs’ counsel’s submission, the above-mentioned materials, do sufficiently provide particulars of the past and future care costs.

Dr. Cisa’s report refers to the inability of Belinda Patchett to perform certain household chores.

HOMEMAKE AND ACTIVITIES OF DAILY LIVING

Because of her injury her husband has had to take over many of the household chores that were previously shared, or done by her exclusively. She stated that she is able to function reasonably well in the mornings, but that by the afternoon, her pain has increased to the point where she has to sit or lie down or keep the leg elevated. She paces herself to try and get supper started, but she indicated that her husband usually completes the meal preparation and does any clean up chores that are required in the evening. She has difficulty with stairs, so he has taken over the laundry. He now takes care of the lawn and snow removal.

In addition to Dr. Cisa’s report, I have perused the report of Dr. Robinson as well at the Occupational Therapy Assessment of Housekeeping and Home Maintenance report.

There appear to be contradictions in the information provided in those reports dealing with Belinda Patchetts’ ability to function on a daily basis.

One example is that, although Dr. Robinson indicates that Belinda Patchett “describes herself as being completely independent with respect to self-care and personal hygiene. She is able to cope and requires no assistance with showering, bathing, grooming, dressing and undressing”, the list of Recommended Equipment to assist Belinda Patchett includes items that relate to personal hygiene and self-care.

Another example is the following: Dr. Robinson states that “outside yard work including snow removal is completed with the use of a four-wheeler with a snow plow. She is capable of completing outdoor tasks with the help of her husband”.

The Occupational Therapy Assessment of Housekeeping & Home Maintenance states that “Ms. Patchett is currently unable to participate in snow removal activities.”

The providing of reports that set out contradictory information is not “providing particulars”.

Plaintiffs’ counsel points to the Special Damages Calculation in the Pre-Trial Brief, in suggesting that, together, the documents relied upon (outlined above) satisfy the undertaking to provide particulars of past costs of care. The low total for “housekeeping, Equipment and Spring/Fall Heavy Cleaning etc” is $20,000; the high total is $40,000.

It is not clear to me what those amounts are based on. They do not match the amounts set out at page 15 of the Occupational Therapy Assessment of Housekeeping & Home Maintenance Report.

It appears from the Brief that the Special Damages Calculation relating to future care costs is: Gross Low of $500,000 and Gross High of $1,000,000.

Defendants’ counsel points out that the amount claimed in the Statement of Claim is an aggregate amount of $500,000 for both general and special damages. Counsel suggests that a real quantification of the damages is required.

I agree with Defendants’ counsel. To simply point to the referenced reports and the Pre-Trial Brief is not responsive to the undertaking given.

Such a response means that Defendants’ counsel must review voluminous material, some of which contains what appears to be contradictory information about the functional ability of Belinda Patchett, and to perform her own calculations. That, in my view, does not satisfy the obligation.

Concrete information setting out the calculation of the past and future care costs, and the basis for such calculation is required.

This undertaking is OUTSTANDING.

#8. To provide an updated copy of OHIP’s subrogated claim from September 13, 2011 to present.

OUTSTANDING

#2 re Steven Patchett. Question 258:

Further to Steven Patchett’s Family Law Act claim, to comply with the Rules with respect to the value of services provided for and for loss of income as a result of providing nursing, housekeeping and other services to the Plaintiff, Belinda Patchett.

I believe that Plaintiffs’ counsel is relying on the Occupational Therapy Assessment of Housekeeping and Home Maintenance as a response to this undertaking.

That report, prepared in September, 2012, had as its purpose to “outline those areas in which Ms. Patchett requires housekeeping and home maintenance assistance in relation to her injuries.”

This report does not purport to provide particulars of the services that Steven Patchett may have provided to Belinda Patchett, for nursing, housekeeping or other services, and certainly not for the period of the first nine years after the incident which forms the basis for the claim.

This undertaking remains OUTSTANDING.

The Defendants are entitled to the Order they seek, that is, that the undertakings be fulfilled on or before April 28, 2014, and I will make that Order, save and except for the currently unavailable income tax information for both Plaintiffs.

Order:

[22] Save and except for the 2013 income tax return for Belinda Patchett, the 2013 Notice of Assessment for Belinda Patchett, and the 2013 income tax return for Steven Patchett, the Plaintiffs shall answer all of the outstanding undertakings outlined in these Reasons, on or before April 28, 2014.

[23] The Plaintiffs shall provide the aforementioned 2013 income tax information immediately upon same becoming available.

[24] If the parties are unable to agree on the costs of the Motion, they shall communicate with the Trial Co-Ordinator, within 30 days of the date of this Ruling, in order to set a date and time to argue costs, failing which there will be no order for costs. The costs hearing, if any, can be conducted by teleconference call.

The Honourable Madam Justice L.L.Gauthier

Released: March 31, 2014

COURT FILE NO.: C-10,428/2007
DATE: 2014-03-31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Belinda Patchett and Steven Patchett

Plaintiffs

– and –

1582683 Ontario Limited operating as Battistellis’ Independent Grocer, Loblaw Companies Limited and IPCF Properties Inc.

Defendants

REASONS FOR JUDGMENT

GAUTHIER, J.

Released: March 31, 2014