Court File and Parties

COURT FILE NO.: 07-CV-9454CM

MOTION HEARD: 20140326

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tammy Ann Elaine Zonneville, formerly Lapointe, The Litigation Administrator of the Estate of Michael Lapointe, deceased, and Tammy Ann Elaine Zonneville, formerly Lapointe, Plaintiffs

AND:

Bradley Peter Andrews, Kimberly Lois Andrews, Aqua-Leisure Industries Inc., Canadian Tire Corporation Limited and Canadian Tire Real Estate Limited, Peter Charles Ansley Holdings Limited, Defendants

BEFORE: Master Pope

COUNSEL: Donald W. Leschied, Counsel for the Plaintiffs

Walter W. Donaldson, Counsel for the Defendant, Aqua-Leisure Industries Inc.

HEARD: March 26, 2014

REASONS FOR ENDORSEMENT

[1] The plaintiffs oppose the defendant, Aqua-Leisure Industries Inc.’s (“defendant”), motion to conduct examinations for discovery of three non-parties.

[2] The plaintiffs’ claim for over $10 million in this action, and a companion action, is for damages relating to a fall/dive into a swimming pool which resulted in the plaintiff, Michael Lapointe (“Michael”), becoming quadriplegic.

[3] Recently, the non-party, Dr. Sangha, provided written answers to the defendant’s written questions. The written questions had been forwarded to Dr. Sangha by plaintiffs’ counsel some time ago. As such, the defendant and Dr. Sangha, have agreed to withdraw this motion against him on the condition that Dr. Sangha will agree to answer, in writing, any additional relevant questions posed by the defendant through counsel for the plaintiffs, if ordered to do so.

[4] The motion did not proceed against the non-party, Wendy Blackwell, as she was not served with the motion.

[5] The remaining non-parties, Dr. Danielle Cataudella and Sue Dale, consent to this motion on terms set out in a draft order. Given the non-parties consent, the issue raised by the plaintiffs regarding service of the motion on them is irrelevant.

[6] For clarity, this motion proceeded as against the non-parties, Dr. Sangha, Dr. Cataudella and Sue Dale, as opposed by the plaintiffs.

Relevancy

[7] Relevancy is determined by the pleadings. The central issue in this action is liability. It is specifically pled at paragraph 16 of the fresh as amended statement of claim that as Michael exited the pool, he “fell backwards into the pool when the ladder tipped and he lost his balance and ultimately struck his head and neck on the floor of the pool suffering a catastrophic spinal cord injury between C4 and C6 and for which he has been and will be permanently impaired for the remainder of his life.” It is further alleged at paragraph 21 that the defendant was negligent in the design and manufacture of the pool and ladder in that the ladder provided no stability or balance for users and that it could easily break under a child’s weight or easily tip. The defendant denies the allegations in its statement of defence and crossclaim.

[8] There are several entries in the hospital records which refer to Michael having told one or more of the non-parties that he dove into the pool as opposed to his earlier version that he fell from the ladder into the pool. For example, a record on July 19, 2005 states that “. . . recently Mike has revealed to his nurse that he dove into the pool – his family is not aware of this . . . .” (Exhibit “K” to Affidavit of Adam Wydrzynski sworn July 4, 2013, p. 148) This record appears to be unsigned. Sue Dale was one of Michael’s primary care nurses from July 16, 2005 to July 20, 2005 and who spoke with Michael daily. It is likely that this entry was made by Sue Dale.

[9] A further example is the record of July 20, 2005 (incorrectly dated June 20, 2005) which states that Michael had not told his mother of his “recent recall of events around the accident.” (Exhibit “J” to Affidavit of Adam Wydrzynski sworn July 4, 2013, note of Dr. Cataudella, p. 47) Another entry of July 26, 2005, states “previously well child, 2 ½ wk ago admitted from Sarnia – playing @ above ground pool, dove in, . . . .” (Exhibit “K” to Affidavit of Adam Wydrzynski sworn July 4, 2013, p. 151) It appears that Sue Dale made this entry.

[10] I reject the plaintiffs’ position that the motion should not be granted because the portion of the hospital records that relate to Michael allegedly telling the non-parties that he dove in the pool are inadmissible at trial. This action is at the discovery stage not the trial stage. At this stage, the moving party has the onus of satisfying the criteria set out in subrules 31.10 (1) and (2) in order to examine the non-parties. Had the non-parties herein been mere bystanders who heard Michael state that he dove in the pool, the moving party could interview those witnesses without the plaintiffs’ permission. However, the moving party herein needs the plaintiffs’ permission to interview the non-parties given their status as one of Michael’s treating physician and attending nurse. For those reasons, in my view, the issue at this stage is not whether the records are admissible at trial but whether the court has reason to believe the non-parties have information relevant to a material issue in the action and whether the moving party satisfies the test under subrule (2).

[11] Further, I do not accept the plaintiffs’ submission that the motion should be denied because the evidence of the non-parties will be inadmissible at trial on the basis that it is hearsay evidence. Again, the scope of examination for discovery is based on relevancy. Rule 31.06(1) provides that a person examined for discovery shall answer, to the best of his knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4). By use of the word “person” in subrule (1), Rule 31 envisions that persons other than the parties to the action may be examined for discovery in certain circumstances. For example, subrules (2) to (4) permit an examining party to obtain disclosure of the names and addresses of witnesses, the existence and contents of an insurance policy and the findings, opinions and conclusions of an expert that relate to any matter in issue. Rule 31.06 is then followed by rule 31.10 which provides for discovery of a “person” or non-party with leave if the requirements under that rule are met. Therefore, it is my view that irrespective of the issue as to admissibility at trial, a non-party may be examined at the discovery stage if leave is granted.

[12] For those reasons, I find that that there is ample reason to believe that Dr. Cataudella and Sue Dale have information that is relevant to the material issue of liability. Therefore, the defendant has satisfied the requirement in rule 30.10(1).

Rule 31.10(2)(a)

[13] Mr. Donaldson advised the court that on discovery Michael denied that he dove in the pool and denied that he told the non-parties that he dove in the pool. If that is the case, then Michael’s testimony on discovery directly contradicts the statements in the hospital records. At discovery in October 2012, Mr. Leschied refused to allow the defendant to contact the four medical professionals. He further maintained his refusal in June 2013 at a case conference. Subsequently, Mr. Leschied sent the non-parties the defendant’s written questions and Michael’s written authorization permitting the non-parties to provide the information sought. Dr. Sangha provided written answers recently; however, the non-parties have refused to do so.

[14] I am satisfied that the defendant has been unable to obtain the information sought from the plaintiff, Michael, and from the non-parties regarding a second version of how the accident happened. As such, the moving party has satisfied the requirement of subrule (2)(a).

Rule 31.10(2)(b)

[15] I find that it would be unfair to require the defendant to proceed to trial without having the opportunity of examining the non-parties as to the facts surrounding the recording of notes in the hospital records relative to Michael’s alleged changed version of how the accident happened.

[16] The defendant is entitled to know the case it has to meet prior to trial. This is one of the purposes of examinations for discovery. Here, the defendant is entitled to know prior to trial all of the facts surrounding the accident in order to properly defend the action, properly prepare for trial and to assess the defendant’s position. If the defendant were required to proceed to trial without having examined the non-parties, it would have to call numerous witnesses to give evidence on this issue which would, undoubtedly, lengthen the trial unnecessarily. Furthermore, having the testimony of non-parties prior to trial may promote settlement.

Rule 31.10(2)(c)(i)(ii)(iii)

[17] The plaintiffs set this action down for trial. A pre-trial conference is scheduled in May 2014. However, the plaintiffs commenced another action in 2012 against Greyland Trading Limited for negligence related to the same alleged defective pool and ladder which is the subject of this action. This action and the new action were ordered to be tried together. (Lapointe v. Greyland Trading Limited CV-12-18041)

[18] The companion action is at the pleadings stage. Therefore, the trial of this action will be delayed to allow time for discoveries, mediation and a pretrial in the companion action.

[19] I find that examinations for discovery of the non-parties will not delay the commencement of the trial of this action given the status of the companion action and the order that the actions be tried together.

[20] I also find that the expense to the other parties in this action of the defendant examining the two non-parties will not be unreasonable in proportion to the amount claimed in this action of more than $10 million dollars. I understand that the co-defendants herein support this motion.

[21] Lastly, the examinations will not, in my view, result in unfairness to the non-parties especially given the agreement that the examinations take place in London where they work or reside, and; furthermore, the testimony given by the non-parties may promote settlement and possibly avoid a trial altogether.

[22] As the defendant has satisfied all requirements of rule 31.10, the motion is granted. The defendant provided the court with a draft order at the commencement of the motion; however, given the recent agreement with Dr. Sangha, I would ask that counsel provide me with a revised draft order for my signature.

Costs

[23] The defendant seeks costs on a partial indemnity basis of $15,211.86 inclusive of HST and disbursements.

[24] I concur that the issues on this motion are extremely important as they pertain directly to the issue of liability and whether or not the plaintiff dove headfirst into a pool thereby causing his serious personal injuries.

[25] For the following reasons, I concur with the defendant that this motion would not have been necessary had plaintiffs’ counsel forwarded the defendant’s written questions to the non-parties, as he eventually did after this motion was brought rather than refusing to do so since the discovery held in October 2012.

[26] The evidence is clear that by June 2013 Mr. Leschied continued to take the position that the defendant had “no right to interview treating health care professionals without the patient’s consent.” (Mr. Leschied’s letter of June 17, 2013) However, Mr. Leschied did advise at that time that he had interviewed Dr. Atkinson and Lisa Pearlman and gave Mr. Donaldson the substance of what they told him. These non-parties are not the subject of this motion.

[27] Given Mr. Leschied’s position, the defendant brought this motion and the plaintiffs were served on July 6, 2013.

[28] However, after the motion was served, Mr. Leschied wrote to the non-parties on or about July 12, 2013 and enclosed Michael’s authorization and the defendant’s written questions. Dr. Sangha answered the questions and forwarded them to Mr. Leschied by email on September 4, 2013 but due to an error in the email address, Mr. Leschied did not receive them until recently. Mr. Donaldson did not receive Dr. Sangha’s answers until March 25, 2014. Dr. Cataudella contacted Mr. Leschied’s office on July 29, 2013 and advised that she would review the material; however, she never did answer the questions.

[29] Mr. Leschied did not advise Mr. Donaldson that he contacted the non-parties and it was not until late March 2014 that he learned of it.

[30] In summary, at the discovery on October 26, 2012, Mr. Donaldson requested that Mr. Leschied contact the non-parties and ask them to answer the written questions. On November 27, 2012, after Mr. Donaldson provided Mr. Leschied with specific medical records requested, Mr. Leschied did not respond which precipitated Mr. Donaldson’s follow-up letter of May 6, 2013. At that time Mr. Donaldson advised that he had instructions to bring a motion. With still no response from Mr. Leschied, at the case conference on June 14, 2013, Mr. Donaldson again requested a response to which he was met with a refusal. Three days later, in his letter, Mr. Leschied still did not respond to Mr. Donaldson’s request and made a blanket statement that the defendant had no right to interview the non-parties without the patient’s consent.

[31] There was delay in the motion being heard for several reasons including Michael’s death and delay in the plaintiff obtaining an order to continue. As such, this action has been delayed unnecessarily from the discoveries in October 2012 to the hearing of this motion in March 2014 of almost one and one half years. There has also been significant and unnecessary costs to the defendant that must be paid by the plaintiffs.

[32] In the circumstances, the defendant is awarded costs of the motion in the amount of $9,000 plus HST, and disbursements of $892.50 inclusive of HST. Costs are payable within 30 days.

Original stamped “Lou Ann M. Pope”

Master Lou Ann M. Pope

Date: April 15, 2014