SUPERIOR COURT OF JUSTICE - ONTARIO
CITATION: Shari Lynn Hallock v. Guraipal Singh Hothi, 2015 ONSC 1851
COURT FILE NO.: 144/06 (Woodstock)
DATE: 2015/03/23
RE: Shari Lynn Hallock and Steven Leslie Babock (Plaintiffs)
- and -
Guraipal Singh Hothi, Harry Hothi Speed Carrier Inc. and XTL Transport Inc. (Defendants)
BEFORE: Justice D. R. Aston
COUNSEL: C. Ross, for the plaintiffs
B. Hughes, for the defendants
HEARD: March 19, 2015
ENDORSEMENT
[1] The crux of the issue before the court is the timing or sequencing of disclosure and discovery steps respecting video surveillance.
[2] The defendants are entitled to the relief sought their notice of motion for further examination for discovery of the plaintiff, Hallock. They are entitled to explore the possible connection between her subsequent motor vehicle accident in 2012 and the apparent deterioration in her condition and, more generally, the voluminous material provided in satisfaction of her undertakings on discovery. See Senechal v. Muskoka (Municipality), 2005 CanLII 11575 (ON SC), [2005] O.J. No. 1406 (Sup. Ct.) at para. 5.
[3] However, a precondition for the continuation of that discovery is that the defendants must first deliver a sworn Supplementary Affidavit of Documents disclosing the existence of the surveillance evidence. I impose that condition, notwithstanding the fact that the plaintiff is already aware of such evidence, to reinforce the importance of complying with the disclosure obligations recently articulated by the Court of Appeal in Ianarella v. Corbett, [2015] ONCA 110.
[4] The request for such a Supplementary Affidavit of Documents is found in the plaintiff’s cross-motion, and not opposed by the defendants. However, I wish to stress that it is a precondition to the further examination for discovery of the plaintiff, which will be conducted no later than April 30, 2015 so as not to delay the trial which is on the near horizon.
[5] This leaves as the final issue on the motions before the court the plaintiffs’ request for an order requiring the defendants to re-attend at examination for discovery or otherwise provide full particulars of all surveillance conducted on Ms. Hallock.
[6] Ianarella confirms that the particulars to which the plaintiff is entitled are the dates, times and locations of the surveillance, a description of the nature and duration of the activities depicted and the name(s) and address(es) of the videographer(s). While the surveillance recordings themselves remain privileged (assuming privilege is claimed in Schedule B of the Supplementary Affidavit of Documents) the facts disclosed by the recordings are not. See paragraphs 40 and 41 of Ianarella. The defendants acknowledge their obligation to provide such particulars. The question is when they must do so.
[7] As noted, the critical issue here is the timing or sequencing of the steps to follow. The plaintiff has demanded the particulars informally and on the examination for discovery of the defendant last January. Ianarella seems to contemplate that the obligation of the defendants to disclose particulars is triggered by a demand on an examination for discovery. See paragraph 40, 45 and 54 of that decision.
[8] In this case, the plaintiff had set the matter down for trial without an examination for discovery of the defendants, forfeiting their right to such discovery under rule 48.04, unless subsequently obtaining leave. However, the defendants agreed to allow such discovery, notwithstanding rule 48.04, on condition that no questions would be asked or answered concerning the surveillance evidence. See the letter of January 8, 2015 from the defendants’ counsel at Tab 2B of the defendants’ motion record. The defendants also served a Notice of Examination with that letter, requiring the continuation of the plaintiffs’ examination for discovery. Counsel for both sides agreed to produce their respective clients for examination for discovery in January. However, I find as a fact that the defendants never waived their right to complete the discovery of the plaintiff before disclosing particulars of the video surveillance. Nor did counsel for the plaintiff make his client’s attendance conditional upon advance disclosure of the particulars of the surveillance evidence.
[9] In this case, unlike Ianarella, the defendants are not seeking to ambush the plaintiff at trial with surveillance evidence neither disclosed nor particularized. They are willing to provide the particulars immediately after their further examination for discovery of the plaintiff in the next few weeks. The plaintiff is entitled to know the particulars of the surveillance evidence before trial but I am not persuaded that she is entitled to know those particulars before her examination for discovery is completed.
[10] It might be otherwise in a case where the plaintiff is the first to serve a notice of examination for discovery. Rule 31.04(3) provides that the party who first serves a notice of examination under rule 34.04 may examine first and may complete the examination before being examined by another party, unless the court orders otherwise. The plaintiffs in this case have not sought such an order. The ability to obtain such an order is the protection the rules afford to a plaintiff.
[11] An order is granted as follows:
The plaintiff, Sherry Lynn Hallock, shall attend at an examination for discovery on a date to be agreed amongst counsel, but in any event, no later than April 15, 2015.
The defendants shall serve a sworn Supplementary Affidavit of Documents before continuation of the plaintiffs’ examination for discovery.
Forthwith upon the completion of the plaintiffs’ examination for discovery, the defendants will provide full particulars in writing of all surveillance conducted on the plaintiff, Hallock. Alternatively or additionally, at the plaintiffs’ option, the defendant Guraipal Singh Hothi shall re-attend at examination for discovery to provide such particulars.
[10] The parties have agreed that costs for these motions should be fixed at $5,000, all inclusive, in favour of the successful party. The defendants had already produced a draft supplementary affidavit of documents, explaining that the defendant Hothi had simply been unable to attend to sign it because of his job as a long-distance truck driver. They have been successful in securing an order for the continuation of the plaintiffs’ examination for discovery and, more significantly, in briefly postponing their admitted obligation to provide particulars – the crux of the dispute.
[11] Costs fixed in the amount of $5,000, all inclusive, are payable to the defendants but payment thereof is postponed to the final disposition of the action.
“Justice D. R. Aston”
Justice D. R. Aston
Released: March 23, 2015