COURT FILE AND PARTIES

COURT FILE NO.: CV-12-443243

DATE: 20140626

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carlos De Sousa, Plaintiff

AND:

Aviva Insurance Company of Canada, Defendant

BEFORE: Carle J. Brown J.

COUNSEL:
Wendy Sokoloff, for the Plaintiff
Alan L. Rachlin, for the Defendant

HEARD: June 25, 2014

ENDORSEMENT

[1] The plaintiff moves for an order striking the statement of defence on the ground that the defendant has failed to produce its representative for examination for discovery as ordered by Master Muir.

[2] This motion arises in the context of an underinsured motor vehicle accident claim with the accident occurring on January 19, 2008. The claim was commenced on January 4, 2012. The defendant pleads, inter alia, the limitation date.

[3] Examinations in this matter had originally been scheduled for June 21, 2012, and were adjourned on consent to July 24, 2012. The original notice of examination required attendance of one Ann Collins as representative for the defendant insurer. When advised that Ms. Collins was no longer an employee with Aviva, the plaintiff served a notice to examine Becky Ostrom. As Ms. Ostrom was an Accident Benefits ("AB") adjuster and not a torts adjuster, the defendant brought a motion before Master Muir to set aside the notice of examination on the ground that an AB adjuster was not producible in the tort claim. On January 8, 2013, Master Muir rendered his Reasons for Decision which found that the plaintiff should not be denied his right to examine a representative of his choosing.

[4] The parties, thereafter, scheduled examinations for discovery for September 19, 2013 for the plaintiff and October 15, 2013, for the defendant. The plaintiff served a notice of examination on March 7, 2013 requiring "A Representative of Aviva Company of Canada" to attend for examination for discovery. On September 19, after inquiry from the defendant, counsel for the plaintiff indicated that through inadvertence, they had not named Ms. Ostrom in the notice of examination and thereafter served an amended notice on September 19, 2013.

[5] Thereafter, counsel for the defendant made inquiry as regards Ms. Ostrom's availability on October 15, 2013, and was advised that Ms. Ostrom had retired from Aviva. Aviva's counsel contacted counsel for the plaintiff to advise of Ms. Ostrom's retirement and to indicate that she was not compellable. Nevertheless, the plaintiff continued to insist that Ms. Ostrom be produced for examination for discovery in behalf of Aviva.

[6] I am mindful of the Order of the Master as regards the plaintiff is entitled to examine an Aviva representative of his choosing. Pursuant to Rule 31.03(2), the choice of a party to examine a specified individual on behalf of a corporation is not to be lightly interfered with. However, pursuant to Rule 31.03(2) an examining party may examine any officer, director or employee on behalf of a corporation. In the present case, Ms. Ostrom is no longer an employee of the Corporation, although she was at the time of Master Muir's Order. As regards compellability at examination for discovery of persons who are not officers, directors or employees of the Corporation, I have considered the cases of Oblates of Mary Immaculate-St. Peter's Province v 3220605 Canada Inc. (cob Life Lease Associates of Canada) [2006] O.J. No. 278, as well as Scott Transport Ltd. v. Bondy et al. [1973] O.J. No. 1884, both relied on by the defendant, and find them to be of guidance in this case.

[7] In all of the circumstances, I do not order Ms. Ostrom, a former employee of the defendant Corporation, to be examined for discovery. Further, I do not order that the defendant's statement of defence be struck. I dismiss the plaintiff's motion in this regard. In order to move this action along expeditiously, I order that the defendant produce an Aviva representative of its choosing, for examination for discovery within 120 days of this Order, on a date to be agreed upon by the parties.

[8] I make no order as to costs.

Carole J. Brown J.

Date: June 26, 2014