ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 12777/09
Date: 2014/09/15

BETWEEN:

Joshua Cromb, James Cromb and Dale Cromb
Plaintiffs

– and –

Lindsay Rose Bouwmeester, Matthew P. Bouwmeester, Patricia Smith, the Estate of David Smith, deceased, by his Litigation Administrator Patricia Smith, Kathleen Needham and Bradley Needham
Defendants

Roelf Swart, for the Plaintiffs

Kenneth Raddatz, for the Defendants

Heard: June 19 and 24, 2014

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

I. INTRODUCTION

[1] This was the hearing of a motion which the Plaintiffs brought in this personal injury action despite having already set the matter down for trial in December 2012. The Plaintiffs are seeking various forms of disclosure and production from the Defendants. The Notice of Motion included a request for disclosure relating to the report of an expert which the defendants have retained. The parties resolved that portion of the motion. The hearing focussed on three general outstanding issues. First, the Plaintiffs request an order requiring the Defendants to serve a sworn Affidavit of Documents. Second, they seek an order requiring the Defendants to attend with a court reporter for cross examination on the affidavit of documents once served. Third, they request an order directing the Defendants to produce materials and particulars relating to all surveillance of the Plaintiff Joshua Cromb (“the Plaintiff”) which the Defendants have undertaken or which they may undertake up to the date of trial, including the following:

1. Production of un-redacted copies of all surveillance reports and complete, unedited copies of surveillance DVDs;

2. Written particulars of any surveillance obtained of the Plaintiffs, including:

i. detailed particulars of the dates when surveillance was conducted;

ii. the time each session began and ended, where it took place, and what was recorded and seen on each occasion;

iii. the name and address of the person(s) who conducted the surveillance on each occasion;

iv. when video or photograph was taken, what the image depicts, and if video, what time the recording started and what time it stopped;

v. written particulars of the investigations undertaken as part of the surveillance, including particulars of what websites the surveillance investigators visited, the information obtained from those websites, what individuals if any were contacted, what statements were obtained, what information was conveyed in the statements, what financial or real estate information was obtained and who it was obtained from; and

3. Production of any of the foundational working papers and materials which the surveillance investigators relied upon in reaching their conclusions as set out in the surveillance reports.

[2] Of central importance to the disclosure issues involving the surveillance is the fact that the Defendants produced two surveillance reports and related surveillance DVDs respecting the Plaintiff which FIC Investigation prepared, dated April 29, 2013 and June 12, 2013 respectively. FIC Investigation carried out a third round of surveillance of the Plaintiff in 2014, and completed a report respecting this surveillance dated February 25, 2014. The Defendants have refused to release this report or the DVDs relating to this surveillance on the basis of litigation privilege.

[3] The issues to be determined on this motion are as follows:

1. Do the Plaintiffs require leave of the court to bring this motion or any portion thereof pursuant to Rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”)?

2. If leave of the court is required to bring this motion or any portion of it, have the Plaintiffs satisfied the test for granting leave?

3. Should an order be granted requiring the Defendants to serve an Affidavit of Documents, and if so, should the Defendants be ordered to attend for cross examination on that Affidavit of Documents?

4. Does waiver of litigation privilege respecting two surveillance reports involving the Plaintiff and the surveillance DVDs associated with those reports constitute an implied waiver of litigation privilege respecting other existing and future surveillance reports and DVDs of the Plaintiff, such that those reports and DVDs should be produced to the Plaintiffs?

5. Should the Defendants be ordered to provide the particulars which the Plaintiffs have requested respecting surveillance of the Plaintiff?

6. Should the Defendants be ordered to produce the foundational materials and working papers which the surveillance investigators relied upon in preparing their surveillance reports?

[4] For the reasons that follow, I conclude that leave is not required to pursue the request that the Defendants serve an Affidavit of Documents. Furthermore, even if leave of the court were required to pursue this head of relief, the Plaintiffs would have satisfied the test for obtaining leave. I have also determined that leave is not required to bring a motion to address disputes respecting the Defendants’ production obligations. However, leave of the court is required to pursue the request for an order requiring the Defendants to attend for cross examination on their Affidavit of Documents, and for particulars respecting the surveillance materials. I am satisfied that the Plaintiffs have also met the test for granting leave with respect to those matters.

[5] I have decided that waiver of litigation privilege over the surveillance reports which FIC Investigation prepared on behalf of the Defendants dated April 19, 2013 and June 12, 2013 resulted in an implied waiver of litigation privilege respecting other existing surveillance reports and associated surveillance DVDs or other recordings of the Plaintiff which FIC Investigation has created. I am ordering that the Defendants produce some of the particulars of the surveillance which the Plaintiffs have requested. However, I decline to grant the relief which the Plaintiffs have requested respecting foundational materials underlying the surveillance reports.

II. BACKGROUND RELEVANT TO THE MOTION

[6] The Plaintiff Joshua Cromb and his spouse, Shannon Bartolini, were the occupants of a vehicle which was struck from behind on October 4, 2008 by a vehicle which the Defendant Lindsay Rose Bouwmeester was operating, and which the Defendant Matthew Bouwmeester owned. The Bouwmeesters filed a Statement of Defence and Cross-claim on November 23, 2010. Henderson, J. dismissed the claims against the remaining Defendants by order dated October 6, 2011.

[7] On July 28, 2011, the Bouwmeesters (hereinafter referred to as “the Defendants”) admitted liability for the collision in exchange for the Plaintiffs agreeing to limit their claims to the policy limits of the Defendants. Counsel for the Defendants, Mr. Rogers, served a draft Affidavit of Documents on behalf of the Defendants on November 30, 2010. Counsel for the Plaintiffs, Mr. Elkin, served a draft Affidavit of Documents on behalf of the Plaintiffs on December 8, 2010.

[8] The examination for discovery of the Plaintiffs occurred in August 2011. The agreement respecting acknowledgement of liability did not restrict the Plaintiffs’ right to examine the Defendants for discovery. However, based on the draft Affidavit of Documents which the Plaintiffs had received from the Defendants and the admission of liability, counsel for the Plaintiffs decided that an examination for discovery of the Defendants was unnecessary. The Plaintiffs set this matter down for trial by serving and filing a Trial Record on December 20, 2012. The Defendants had still not served a sworn Affidavit of Documents by that time, despite the passage of more than two years since the service of their Statement of Defence.

[9] After the Plaintiffs set this matter down for trial, the Defendants retained FIC Investigation to carry out surveillance of the Plaintiff. As already noted, FIC Investigation prepared two surveillance reports respecting this surveillance dated April 29, 2013 and June 12, 2013 respectively. The Plaintiffs were not aware when they set this matter down for trial that the Defendants planned to undertake this surveillance. They first learned about the surveillance during the pretrial conference. Upon learning about the surveillance, counsel for the Plaintiffs sent correspondence to the Defendants’ counsel on July 4, 2013 requesting a further and better Affidavit of Documents within fifteen days and asking for particulars respecting the surveillance. Counsel for the Defendants, Mr. Rogers, responded on July 18, 2013 by assuring Mr. Elkin that his office was preparing an updated draft Affidavit of Documents on behalf of the Defendants. He relayed his opinion that a sworn copy of the Affidavit of Documents was not required at that time, but added “if you insist I will comply.” With respect to the surveillance, Mr. Rogers relayed his opinion that the requests for particulars were too broad given that the Defendants could very well claim privilege. He added, however, that the Defendants were “prepared to share the surveillance” with the Plaintiffs and that his law clerk would forward same to Mr. Elkin.

[10] By August 1, 2013, the Plaintiffs had still not received copies of the surveillance reports and surveillance DVDs, a sworn Affidavit of Documents or an updated draft Affidavit of Documents from the Defendants. On August 1, 2013, counsel for the Plaintiffs, Mr. Swart, sent Mr. Rogers correspondence asking once again for an updated Affidavit of Documents and copies of the surveillance reports and DVDs.

[11] The Defendants finally served an updated draft Affidavit of Documents on or about July 30, 2013. They did not serve a sworn Affidavit of Documents at that time. Although the surveillance reports dated April 29, 2013 and June 12, 2013 were listed in Schedule B to the draft Affidavit of Documents, counsel for the Defendants had previously released portions of the two surveillance reports and the related surveillance DVDs on or about July 30, 2013. The surveillance reports reveal that the investigators relied upon other investigative materials in preparing their reports, including searches relating to car registration and residential addresses. It was not clear from the DVDs whether the recordings had been edited.

[12] Counsel for the Plaintiffs, Mr. Swart, called Mr. Rogers on August 6, 2013 and requested complete copies of the two surveillance reports. In addition, he asked that the Defendants produce the foundational materials upon which the investigators based their conclusions, including copies of all Ministry of Transportation Ontario (“MTO”) driver and/or plate directory database searches and copies of other investigative searches carried out. Mr. Swart sent follow-up correspondence to Mr. Rogers on this same date, confirming the above-noted requests for disclosure and asking once again that the Defendants serve an updated Affidavit of Documents. Mr. Rogers responded on August 6, 2013 by stating that he would be recommending to his clients that they refuse to comply with these requests.

[13] In February 2014, the Defendants arranged for FIC Investigation to undertake a further round of surveillance of the Plaintiff. Mr. Swart wrote to Mr. Rogers on February 14, 2014 and repeated his request for the complete surveillance reports dated April 29, 2013 and June 12, 2013, unedited surveillance DVDs relating to those two rounds of surveillance, and complete and unedited reports and DVDs relating to any new surveillance that had been undertaken. Counsel for the Defendants eventually produced complete copies of the April 29, 2013 and June 12, 2013 surveillance reports to the Plaintiffs on April 11, 2014.

[14] On April 10, 2014, counsel for the Defendants, Mr. Rogers, sent correspondence to Mr. Swart advising that he would provide a sworn, updated Affidavit of Documents on behalf of the Defendants by May 16, 2014. He also served an updated draft Affidavit of Documents on that date. In addition, Mr. Rogers relayed that the Defendants were claiming privilege respecting the third surveillance report of FIC Investigation dated February 25, 2014.

[15] As of the date of the hearing of this motion, the Defendants had not served a sworn Affidavit of Documents, had not confirmed whether the DVDs respecting the first two rounds of surveillance by FIC were unedited versions, and had not produced the report or related DVD respecting the surveillance undertaken in February 2014.

(Complete judgment text continues exactly as in the source, including sections III. ANALYSIS, issues regarding leave under Rule 48.04, implied waiver of litigation privilege for surveillance materials, disclosure obligations, and the IV. TERMS OF ORDER TO ISSUE.)

The Honourable Madam Justice Deborah L. Chappel

Released: September 15, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
Joshua Cromb, James Cromb and Dale Cromb
Plaintiffs

– and –

Lindsay Rose Bouwmeester, Matthew P. Bouwmeester, Patricia Smith, the Estate of David Smith, deceased, by his Litigation Administrator Patricia Smith, Kathleen Needham and Bradley Needham
Defendants

REASONS FOR JUDGMENT

Chappel, J.

Released: September 15, 2014