SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-2151
DATE: 20140411
RE: Edith L. Cabanas, Marta Cabanas, as well as Justin Ponciano-Cabanas and Claudia Cabanas, infants by their Litigation Guardian Edith Cabanas, Plaintiffs
AND:
Neil Sahi, Freeway Ford Sales Ltd., o/a East Metro Auto Leasing, Defendants
BEFORE: Andre J.
COUNSEL:
Leonard H. Kunka, Counsel, for the Plaintiffs
Arie Odinocki, Counsel, for the Defendant, Neil Sahi
Kevin S. Adams, Counsel, for the Defendant, Freeway Ford Sales Ltd. o/a East Metro Auto Leasing
HEARD: March 26, 2014
ENDORSEMENT
[1] On April 14, 2006, a high performance sports car driven by the defendant, Neil Sahi, collided with a car driven by the applicant, Edith Cabanas. Ms. Cabanas suffered a number of serious physical injuries and psychological problems. The applicant filed a statement of claim against Mr. Sahi and the defendant company which had given him use of the car on the date of the accident. During a subsequent examination for discovery, Mr. Sahi refused to answer a number of questions from the plaintiffs’ counsel, on the grounds that the questions were either irrelevant, repetitive, or related to issues which were not in dispute. The plaintiffs bring this motion, pursuant to Rule 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order compelling Mr. Sahi to answer all the questions he refused to answer on March 14, 2008, and to attend for a further examination for discovery for that purpose.
[2] I must therefore answer the following question:
Whether the questions, which the plaintiffs state were not answered by Mr. Sahi, are relevant and proper and thus deserving of a response from the defendant, Mr. Sahi.
[3] For the reasons indicated, the plaintiffs’ motion is granted.
FACTS:
[4] The plaintiffs plead that during an examination for discovery on March 14, 2008, Mr. Sahi refused to answer approximately 23 questions, all of which are relevant and germane to the issues raised in the litigation between the parties.
[5] The plaintiffs have placed these questions into the following three categories:
(1) How was Mr. Sahi permitted to rent a motor vehicle from the defendant company, despite only having a Class G1 licence and an extensive criminal record?
(2) Was Mr. Sahi impaired by drugs or alcohol at the time of the accident?
(3) Does Mr. Sahi know of any persons who may have information regarding the accident, and the information these persons may have concerning the accident?
THE LAW:
[6] Subrule 34.15(1)(a) of the Rules of Civil Procedure provides that where a person fails to answer any proper question during an examination for discovery, the court may “order or permit the person being examined to reattend at his or her own expense and answer the question, in which case the person shall answer any proper questions arising from the answer.”
[7] Rule 31.06 was amended on January 1, 2010, by the replacement of the phrase “relevant to any matter in issue.” This amendment effectively narrowed the scope of an examination for discovery from anything with a semblance of relevance to that which is actually relevant. see Blais v. The Toronto Area Transit Operating Authority, 2011 ONSC 1880, 105 O.R. (3d) 575 at para. 11.
[8] Rule 31.06(2) states that:
A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.
[9] Subrule 29.2.03(1) provides that:
In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source. O.Reg. 438/08, s.25
[10] In determining whether or not a party should be ordered to answer a question during an examination for discovery, the court must first determine whether the question is relevant by having reference to the pleadings. If relevant, the court must be alive to the proportionality concerns set out in subrule 29.2.03: Blais, at para. 15.
PLEADINGS:
[11] In their statement of claim, the plaintiffs plead the following particulars:
The defendant, Freeway Ford Sales Ltd., owned the motor vehicle which was operated by Mr. Sahi at the time of the accident.
The defendant company was negligent in permitting Mr. Sahi to operate one of its motor vehicles when its owners knew, or ought to have known, that Mr. Sahi was an incompetent driver.
In his statement of defence and cross claim, Mr. Sahi adopts the plaintiffs’ allegations of negligence against the defendant company to the effect that the latter negligently permitted him to operate one of its motor vehicles when it knew, or ought to have known, that he was an incompetent driver.
Mr. Sahi was impaired by the consumption of alcohol, and/or the ingestion of drugs, at the time of the accident.
The accident occurred at approximately 7:55 p.m. on April 14, 2006. Accordingly, it is relevant whether Mr. Sahi had been consuming alcohol or drugs the previous evening, since, if he had, they may not have been fully eliminated from his body at the time of the accident.
ANALYSIS:
CATEGORY ONE QUESTIONS:
[12] The plaintiffs submit that the following questions which relate to the defendant company’s decision to rent a vehicle to Mr. Sahi, despite the latter having a Class G1 licence and an extensive driving record, are relevant and deserving of a response from Mr. Sahi:
Q. 32: Who gave Mr. Sahi possession of the car on the day of the accident?
Q. 33: Who gave Mr. Sahi permission to use the car on the day of the accident?
Q. 44: Whether an employee of the defendant company gave Mr. Sahi the key to the car involved in the accident.
Q. 48: Whether Mr. Sahi’s father owns the defendant company.
Q. 50: Whether anyone from the defendant company knew, prior to April 6, 2006, that Mr. Sahi’s licence had been suspended from January 20, 2005 to April 20, 2005.
Q. 51: Whether anyone from the defendant company knew, prior to April 14, 2006, that Mr. Sahi had been convicted of failing to yield right of way, under the Highway Traffic Act, R.S.O. 1990, c. H.8 on September 19, 2005.
Q. 52: Whether anyone from the defendant company knew, prior to April 14, 2006, that Mr. Sahi failed to have an insurance card on him on September 2005.
Q. 53: Whether anyone from the defendant company knew, prior to April 14, 2006, that Mr. Sahi had been convicted on October 31, 2005, of being unaccompanied by a qualified driver.
Q. 54: Whether anyone from the defendant company knew, prior to April 14, 2006, that Mr. Sahi’s driver’s licence had been suspended for 30 days on November 14, 2005.
Q. 282: Whether the defendant company is either owned by or is under the direction and control of Mr. Sahi’s father.
Q. 283: Whether Mr. Sahi’s father was aware of Mr. Sahi’s driving record prior to April 14, 2006.
Q. 285: Whether an operating mind of the defendant company knew of Mr. Sahi’s driving record prior to April 16, 2006.
[13] Regarding Question 32, the defendants maintain that this question is irrelevant given that, a) consent of the owner to Mr. Sahi’s possession of the car is not an issue and, b) the owner is vicariously liable for Mr. Sahi’s negligence, pursuant to s.192(2) of the Highway Traffic Act.
[14] In my view, this question should be answered because it is directly relevant to the issue of the liability of the defendants for the accident. Even if the company concedes liability under the doctrine of vicarious liability, the question is nevertheless relevant and should be responded to. The suggestion that Mr. Sahi answered the question by stating that he did not recall who gave him the car to use should not be regarded as being dispositive of the question. He should be allowed to answer any follow-up questions concerning who normally delivered the car to him or allowed him to use it.
[15] The same reasoning applies to Questions 33 and 44.
[16] Similarly, Mr. Sahi should answer Questions 48 and 282 which are related to his father’s relationship with the defendant company. Answers to these questions are relevant to the issue of liability to the action initiated by the plaintiffs and it may well be relevant to the issue of who authorized Mr. Sahi’s use of the car involved in the accident. The fact that a representative of the company was not asked a similar question is not a bar to Mr. Sahi being asked the questions. Similarly, Mr. Sahi should be required to anwer Question 283 if it turns out that his father owned or had a controlling interest in the defendant company.
[17] Questions 50 to 54 deal with the defendant company’s knowledge of Mr. Sahi’s driving record.
[18] Mr. Sahi’s counsel objects to these questions being answered for the following reasons:
Mr. Sahi’s record is not relevant to liability issues.
The convictions are not relevant.
Evidence of Mr. Sahi’s driving record is prejudicial which outweighs any probative value of the evidence.
The information is not within Mr. Sahi’s knowledge.
The plaintiffs should have directed these questions to the representative of the car’s owner, who was examined on February 1, 2008.
[19] Regarding the first point, Mr. Sahi’s driving record is relevant to the issue of liability and his degree of responsibility for the accident. Second, whether or not the questions fall within Mr. Sahi’s scope of knowledge can only be ascertained if he answers the question. Third, Mr. Sahi’s responses to these questions may be relevant to the issue of the defendant company’s liability for the accident. Finally, the plaintiffs’ failure to ask these questions to the defendant company’s representative does not prevent the plaintiffs from asking Mr. Sahi these questions.
CATEGORY TWO QUESTIONS
[20] The questions related to Mr. Sahi’s consumption of alcohol or drugs prior to the accident are as follows:
Q. 89: Whether Mr. Sahi consumed any alcohol within the 24 hour period prior to the accident.
Q. 91: Whether Mr Sahi refused to provide a breath sample to the police after the accident.
Q. 204(a): Whether Mr. Sahi should provide credit card statements for the night prior to the accident.
Q. 204(b): Whether Mr. Sahi should provide his banking records, including credit card / debit transactions from 6:00 p.m. on April 13 to 6:00 p.m. on April 14, 2006.
Q. 207: Whether Mr. Sahi takes any non-prescription medication or drugs.
Q. 210/212: Whether Mr. Sahi had consumed non-medically prescribed drugs within the two day period prior to April 16, 2006
Q. 83: How much alcohol did Mr. Sahi consume on the night prior to the accident?
Q. 325: How much did Mr. Sahi drink during the evening prior to the accident?
[21] Regarding Question 89, Mr. Sahi’s drinking within the 24-hour period preceding the accident may be relevant to the issue relating to the cause of the accident. Whether or not alcohol consumed more than 12 hours prior to the accident could have affected Mr. Sahi’s ability to drive can only be ascertained by knowing how much alcohol Mr. Sahi had consumed the previous evening. That information was within Mr. Sahi’s knowledge or that of any companions he had during the evening in question or whoever may have served him alcohol.
[22] On the other hand, it appears that Mr. Sahi answered Question 91. He testified that he refused a request to provide a breath sample because he was already under arrest and he was exercising his right against self-incrimination. While Mr. Sahi may have been under a misapprehension about the law regarding his right to refuse a breath sample upon demand by a police officer who may have had the requisite legal grounds to make such a demand, it appears that he has answered the question.
[23] The plaintiffs’ counsel was entitled to ask Mr. Sahi Questions 204 (a) and (b), given that they may disclose information relevant to Mr. Sahi’s consumption of alcohol the evening before the accident. Plaintiffs’ counsel cannot be expected to simply accept Mr. Sahi’s responses without any follow-up questions which may provide answers to issues that arise out of the pleadings in the plaintiffs’ statement of claim. The fact that Mr. Sahi did not remember how much he had to drink the night before provides some justification for the questions and for Question 325.
[24] Regarding Questions 207, 210 and 212, Mr. Sahi responded that he did not have any drugs within his system at the time of the accident, neither was he on any drugs within 24 hours of the accident. In my view, Mr. Sahi has adequately answered these questions.
CATEGORY THREE QUESTIONS
[25] The two questions within this category are:
Q. 165: Whether Mr. Sahi would provide contact information of witnesses to the accident and their statements.
Q. 200. Whether Mr. Sahi could contact his friends to see if they had any recollection of who Mr. Sahi was with the night before the accident.
[26] The defendant is opposed to answering these questions on the following grounds:
(a) Mr. Sahi has already advised the plaintiffs that he intends to rely on the evidence of witnesses indicated in the Crown’s brief.
(b) Mr. Sahi advised the plaintiffs, by email on November 23, 2012, that he was not aware of any witnesses other than those referred to in the Crown’s brief.
(c) During his examination for discovery, Mr. Sahi undertook to provide the identity and contact information of any witnesses of which he was aware. On November 23, 2012, he identified two witnesses whose names appear in the Crown’s brief.
(d) Mr. Sahi indicated during the examination for discovery, that he did not remember who he was with on Thursday, April 13, 2006. To that extent, demanding that Mr. Sahi contact his friends and ask them whether they remembered what he was doing that particular evening is not reasonable.
[27] The plaintiffs’ justification for asking these questions is based on Rule 31.06(2), which provides that the names and addresses of persons having knowledge of the event, or in this case, accident, is discoverable. It logically follows that a proper question is the extent and substance of the knowledge of these persons: see Dionisopoulos v. Provias (1990), 1990 6642 (ON SC), 71 O.R. (2d) 547, at 552; General Accident Assurance Co. v. Chrusz (1999),1999 7320 (ON CA), 45 O.R. (3d) 321 (C.A.) at p. 332.
[28] Rule 31.06(2) does not address trial witnesses but all persons who might reasonably be expected to have knowledge of the accident. This is a much broader group of people of whom trial witnesses would constitute a smaller group; see Davies v. Clarington (Municipality), 2010 ONSC 6103, [2010] O.J. No. 4900 (S.C.J.) at para. 23.
[29] To the extent that Mr. Sahi does not remember who he was with on the night prior to the accident, he should be required to contact those persons he remembers who were with him and ask them if they recalled the names of any other persons who were with him during the evening in question. Mr. Sahi’s obligation to comply with Rule 31.06(2) does not end with identifying two names in the Crown’s brief. He must also provide summaries of what information the witnesses possess. As to the content of these summaries, they must address questions related to “who, what, where, when, why, how”: Davies, at para. 26.
[30] Accordingly, Mr. Sahi can be questioned and he must provide answers to Questions 165 and 200.
[31] Based on the above, Mr. Sahi must provide answers to the following questions:
32, 33, 44, 48, 50, 51, 52, 53, 54, 89, 165, 200, 204(a) and (b), 282, 283, 285, 325.
[32] Mr. Sahi does not have to answer the following questions:
91, 207, 210, 212.
COSTS:
[33] The plaintiffs seek costs in the amount of $3,294.51 on a partial indemnity basis, while the defendant seeks costs in the amount of $3,025 and $4,275 on a partial indemnity and substantial indemnity basis respectively.
[34] The plaintiffs have been substantially successful in this matter. The hourly rate of counsel for the plaintiffs and the time spent on this matter cannot be construed as unreasonable, given the lawyer’s experience. The matter was not particularly complex but was important in light of the issues involved in the litigation between the parties. The plaintiffs made a number of unsuccessful attempts to obtain answers to the questions which were the subject matter of this motion.
[35] In my view, the quantum of costs which can be considered fair and reasonable in this matter is $2,800.
[36] The defendant, Mr. Sahi, is ordered to pay costs in the amount of $2,800 inclusive, to the plaintiffs within ninety days (90) of today’s date.
Andre J.
[37] Date: April 11, 2014