Cushing v. Beaulieu, 2015 ONSC 1871
COURT FILE NO.: CV-1419-11
DATE: 20150324
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lise Cushing
Plaintiff
– and –
Kevin Beaulieu
Defendant
– and –
Curtis Giroux
Third Party
Peter Denton, for the Plaintiff
Beau S.M. Chapman, for the Defendant
R.W. Howard Lightle, for the Third Party (not appearing)
HEARD: March 18, 2015
RULING ON MOTION
gauthier, j.:
the motion:
[1] The Defendant moving party (“Beaulieu”) seeks an order compelling the Plaintiff (“Cushing”) to attend “at her continuing examination for discovery at a date and time to be fixed at the motion to answer questions related to documents produced subsequent to her initial examination for discovery”.
[2] Cushing opposes the motion and submits that same should be dismissed as Beaulieu requires leave to bring such motion, and has failed to request same. Beaulieu is not automatically entitled to the Order sought.
THE HISTORY:
[3] Cushing was involved in a motor vehicle accident on July 10, 2010.
[4] The Statement of Claim in the action was issued on July 13, 2011. Cushing seeks $1,000,000, plus costs and interest.
[5] Beaulieu has defended the claim and commenced third party proceedings against Curtis Giroux (“Giroux”).
[6] Cushing’s (unsworn) Affidavit of Documents was delivered in advance of Cushing’s examination for discovery, which took place on November 21, 2012.
[7] On that date, Cushing was examined by counsel for the Defendant and counsel for the Third Parties, from 10:05 a.m. until 1:01 p.m. Cushing gave a number of undertakings during the examination for discovery. Beaulieu’s counsel concluded the examination with the following words:
Well, subject to questions arising out of answers to undertakings, including my review of the more recent productions that I didn’t have a chance to review, those are my questions.
[8] The following are the undertakings which were given in the course of the examination of Cushing:
Undertaking requested and given to provide a prescription summary from the Coniston drug store for the past five years.
Undertaking requested and given to make best efforts to request Ms. Cushing’s academic transcript from Cambrian College.
Undertaking requested and given to provide the CD ROM with the MRI on it.
Undertaking requested and given to provide a copy of the January 2012 letter to Johannsen.
Undertaking requested and given to provide Mrs. Cushing’s EI file.
Undertaking requested and given to provide Mrs. Cushing’s Record of Employment.
Undertaking requested and given to provide a copy of Mrs. Cushing’s application for ODSP once she submits it.
Undertaking requested and taken under advisement to provide a copy of the application for mediation and the response to the application for mediation.
Undertaking requested and given to provide a sworn Affidavit of Documents.
Undertaking requested and given to provide an update of Dr. Chow’s records.
Undertaking requested and given to provide Ms. Cushing’s Income Tax Returns for 2007, 2009, 2010, 2011, along with the Notice of Assessments.
Undertaking requested and given to provide a prescription summary for the past five years.
Undertaking requested and given to provide Dr. Gagnon’s file.
Undertaking requested and given to request Kathy Regimbal’s notes if not included in Dr. Gagnon’s file.
Undertaking requested and given to provide the assessment report from the December 2012 assessment once authored.
Undertaking requested and given to provide an updated AB file.
Undertaking requested and given to provide a benefits payment summary from the AB file.
Undertaking requested and given to provide Dr. Larton’s clinical notes and records all the way back to 2005.
[9] The undertakings were satisfied between December 21, 2012 and August 20, 2014.
[10] The Trial Record was filed on June 26, 2013.
[11] A pre-trial was held on May 21, 2014.
[12] Cushing attended two defence medical examinations in 2014.
[13] Mediation was unsuccessfully attempted on November 8, 2014.
[14] On November 10, 2014, Beaulieu’s counsel corresponded with Cushing’s counsel, requesting to examine Cushing “with respect to the undertakings that have been received over the past two years.”
[15] Cushing’s counsel refused to produce Cushing for examination, but offered to allow her to answer questions in writing arising from the undertakings.
[16] All counsel have agreed to the trial proceeding in December 2015, and have reserved the dates in their schedules.
THE ISSUES:
A. Does Beaulieu require leave of the court pursuant to Rule 48.04(1) of the Rules of Civil Procedure?
[17] Rule 48.04(1)provides that:
48.04 (1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. O. Reg. 436/10, s. 1 (1).
(2) Subrule (1) does not,
(a) relieve a party from complying with undertakings given by the party on an examination for discovery;
(b) relieve a party from any obligation imposed by,
(0.i) rule 29.1.03 (requirement for discovery plan),
(i) rule 30.07 (disclosure of documents or errors subsequently discovered),
(ii) rule 30.09 (abandonment of claim of privilege),
(iii) rule 31.07 (failure to answer on discovery),
(iv) rule 31.09 (disclosure of information subsequently obtained),
(v) rule 51.03 (duty to respond to request to admit),
(vi) rule 53.03 (service of report of expert witness); or
(vii) Revoked: O. Reg. 131/04, s. 13.
(c) preclude a party from resorting to rule 51.02 (request to admit facts or documents). R.R.O. 1990, Reg. 194, r. 48.04 (2); O. Reg. 131/04, s. 13; O. Reg. 260/05, s. 10; O. Reg. 438/08, s. 43.
(3) Leave of the court is not required for a motion to compel compliance with any obligation imposed by a rule listed in clause (2) (b). O. Reg. 436/10, s. 1 (2).
[18] Rule 48.07 provides that:
Where an action is placed on a trial list,
(a) all parties shall be deemed to be ready for trial; and
(b) [revoked. O.REg. 438/08, s.44];
(c) The trial shall proceed when the action is reached on the trial list unless a judge orders otherwise.
Beaulieu’s Position:
[19] Beaulieu relies on the wording of the Rule and submits that, as he was not the party who set the action down, nor did he consent to the case being placed on a trial list, he does not require leave to bring the motion.
Cushing’s Position:
[20] Cushing submits that Beaulieu consented to the action being placed on the trial list, has shown no substantial or unexpected change in circumstance that would justify granting leave, and, accordingly, the motion should be dismissed.
ANALYSIS:
[21] In fact, there is no evidence of consent on the part of Beaulieu to the action being placed on a trial list. Further, although the action was addressed at the Assignment Court on March 4, 2015, the matter was adjourned to the April 7, 2015, Assignment Court, and, although counsel have agreed to hold the two weeks commencing December 7, 2015 for the trial, the fact of the matter is that the case has not yet been “placed on a trial list”. In other words, the proposed date has not been confirmed by the court.
[22] That being the case, Rule 48.04 does not apply, such as to require Beaulieu to seek leave, under this Rule, to bring his motion.
B. Does Beaulieu require leave to bring the within motion pursuant to Rule 31.03(1) of the Rules of Civil Procedure?
[23] Rule 31.03(1) provides as follows:
A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8).
Beaulieu’s Position:
[24] I reproduce the following from the Moving Party’s Factum, paragraphs 19 to 27:
With respect to this motion, the request for the plaintiff to attend at her continuing examination for discovery to answer questions arising out of the undertakings is reasonable and clearly fits the general principle that “a party giving undertakings or answering refusals may be required to reattend to complete the discovery by giving the answers under oath and answering appropriate follow up questions.”
Furthermore, this request does not fit into any of the possible exceptions enunciated in Senechal v. Muskoka. With respect to exceptions, the examples given as to where “it serves no useful purpose” are 1) full and complete written response has been given to a simple question (not applicable) 2) the answer to the undertaking demonstrated that the questions was not (sic) relevant (not applicable) 3) or where the parties have agreed that written answers will suffice (not applicable).
Moreover, the examples given in Senechal v. Muskoka as to when the court should order the continuing examination for discovery are 1) answers appear incomplete 2) where the undertakings given rise to relevant follow up questions that have not been asked and 3) if newly produced documents require explanation 4) or if the discovery transcript will not be understandable at trial.
The defendant’s request for the plaintiff to attend for her continuing examination for discovery fits squarely in all of the first three examples given in Senechal.
In Senechal, the final overall exception to the general rule relates to the “cost or the onerous nature of what is proposed outweighs the possible benefit”. The plaintiff resides in Sudbury, and the defendant is content on examining the plaintiff in Sudbury. Furthermore, the costs of the examination will be paid for by the Defendant. The plaintiff is claiming for damages well in excess of one million dollars, and the relief claimed by the plaintiff exceeds the insurance policy limits of the defendant. In this case, it is respectfully submitted that there are no onerous conditions that would negate the general principle.
In Trewin v. Macdonald, 2007 CanLII 10417 (ONSC), the Court found:
(A)bsent the exercise of the court’s discretion to disallow re-attendance, the Defendant should reattend … The question, therefore is whether the interest of justice require that I exercise my discretion to decline to order further examination … the stated entitlement to re-examination falls within the examples cited in Senechal when re-attendance is appropriate (issues arising out of undertakings and newly produced documents).
Reference: Trewin v. MacDonald, 2007, CanLII 10417 (ONSC), as found at Tab 3 of the defendant’s factum and authorities brief
In Trewin, the court adopted the approach that re-attendance at discovery is a right of the examining party unless the court exercises its discretion to disallow the re-attendance. In Trewin, the court ordered the re-attendance of a party to answer questions relating to two faxes and a police report. In this case, the undertakings given included: the plaintiff’s prescription summary, her academic transcript, a MRI performed, her employment insurance file, her records of employment, her ODSP file, her tax returns from 2007, 2009, 2010, 2011, and 2012, counseling records of Dr. Gagnon, the accidents benefits payout summary, and the family doctor records of Dr. Larton.
As mentioned, the request for the plaintiff to attend at her continuing examination for discovery to answer questions arising out of the undertakings was made in the same month that the answers to undertakings were satisfied, save the aforementioned tax returns. Plaintiff’s counsel took two years to answer the undertakings.
Plaintiff’s counsel is trying to rely on their own delay as a reason to not consent to the continuing examination.
Cushing’s Position:
[25] I reproduce the following from the Responding Party’s Factum, paragraphs 2, and 34 to 37 inclusive:
It is the plaintiff’s position is (sic) that the defendant’s motion should be dismissed for the following reasons:
The plaintiff fully answered all questions asked of her at her examination for discovery. No questions were refused.
The plaintiff’s answers to the questions put to her at her examination for discovery remain correct and complete. There has been no significant change in her condition.
This action is at an advanced stage. The trial record has been filed, pretrial conference held, mediation held, and dates for trial agreed to.
Despite examinations for discovery taking place more than two years ago, the defendant failed to bring this motion until after a pretrial took place and the parties agreed to trial dates. It would be prejudicial and delay the proceedings to allow further examinations for discovery to take place.
The majority of documents arising from the undertakings were provided well before the trial record was filed.
The documents arising from the undertakings given by the plaintiff serve to confirm her answers at her examination for discovery. They do not provide any new grounds for discovery for which the defendant did not have the opportunity to examine the plaintiff at her examination for discovery more than two years ago. They do not give rise to new questions.
It would be disproportionate to request the plaintiff attend further examination for discovery.
The right to further examinations for discovery is not absolute. The defendant has provided no grounds explaining why further examination for discovery of the plaintiff is necessary.
It is the plaintiff’s position that there is nothing to be gained by requiring her to attend a further examination to answer questions arising from the undertakings. The undertakings provided by the plaintiff support the answers she gave her examination for discovery, they do not require further explanation. The undertakings do not render the discovery transcript confusing or cause it to be unusable at trial. The undertakings provide no new grounds for discoverability which could not have been canvassed at the plaintiff’s examination more than two years ago.
To allow further examination for discovery would be an abuse of process, especially where the plaintiff did not refuse any questions, answered all questions fully, and the majority of undertakings were answered more than two years ago. The undertakings to not give rise to apparently relevant follow up questions that have not been asked or could have been asked at the examination for discovery. Further examinations are not required for the purposes of settlement, to narrow the issues, or to allow the defendant to know the case he has to meet at trial.
Defence counsel has not identified any questions of significance that were not addressed on the extensive discoveries that have already taken place or that have been left unanswered as a result of the undertakings. The defendant has not met the onus upon him to show that further examinations for discovery are necessary. Further examination for discovery would serve no useful purpose.
It would be prejudicial and unfair to allow the defendant to conduct further examination of the plaintiff where the action is at an advanced stage, pretrial and settlement conference taken place, and the action is ready for trial, and where the defendant has failed to comply with the rules. It is in the interests of justice that the plaintiff not be subjected to further and unnecessary examination for discovery at this late date.
ANALYSIS:
[26] The answer to the question posed turns on whether or not the proposed questions are appropriate follow-up questions. If so, then the subsequent examination could be characterized as a continuation of the original examination, and not an additional examination.
[27] In Senechal v. Muskoka (District Municipality), 2005, CanLII 11575 (ONSC), Master Macleod enunciated the principles which govern re-attendance as follows:
The question of examining “more than once” is in practice a question of whether the examination was actually completed. Improper refusals are an interruption of the discovery while undertakings are an acknowledgment that the question is a proper one and a promise to obtain and provide the answer. Generally speaking, had the discovery not been interrupted by the refusal or the answer to the undertaking been available, not only would the answer have been given under oath as part of the transcript but the examining party would have been entitled to ask appropriate follow up questions as part of the examination. Arguably then an answer that genuinely gives rise to follow up questions should give rise to a right to complete the oral discovery as if the question has been answered.
Do these later cases contradict the general principle enunciated in S.E. Lyons & Son Ltd.? In my view there is no contradiction and the principles enunciated in these cases may be resolved as follows:
As a general principle a party giving undertakings or answering refusals may be required to reattend to complete the discovery by giving the answers under oath and answering appropriate follow up questions. A party being examined may not compel the examining party to accept answers in writing simply by refusing to answer questions or by giving undertakings.
On the other hand, the court will not automatically make an order for follow up discovery if it serves no useful purpose. Examples in which an order may not be appropriate would be cases in which a full and complete written response has been given to a simple question, in which the answer demonstrates that the question was not relevant or in which the parties have agreed that written answers will suffice.
The court will generally make such an order if it appears necessary in order to fulfill the purposes of discovery. Examples of situations in which an order would be appropriate are situations in which the answers appear cursory or incomplete, where they give rise to apparently relevant follow up questions that have not been asked, if newly produced documents require explanation, or the discovery transcript supplemented by the answers will not be understandable or useable at trial.
Even if answers do appear to require follow up, the court has discretion to order answers in writing or to decline to order further examination where it appears the cost or the onerous nature of what is proposed outweighs the possible benefit or where for any other reason it appears unjust to make such an order. Such discretion should be exercised only if the interests of justice require it.
The examples given above are not intended to be exhaustive. The point is that discovery rights are subject to court supervision and are not absolute rights. Discretion should normally be exercised to ensure the purposes of full and fair discovery are served but to prevent abuses of the discovery process. Procedural rules, it has been observed, should be the servants of justice and not its master. The principal is enunciated in Rule 1.04(1).
[28] I begin by saying that I am not convinced that the advanced stage of the proceeding itself precludes a follow-up examination for discovery.
[29] Rather, the issue is whether the proposed re-attendance can be characterized as a continuation of the initial examination for discovery, or whether it is second examination for discovery.
[30] As indicated above, the answer turns on whether the proposed questions are proper questions arising from the information produced pursuant to the undertakings.
[31] That would involve an assessment of the information provided pursuant to the undertakings and whether the information or answers “genuinely give rise to follow-up questions”.
[32] The Moving Party’s motion material does not provide any information about the nature of the information sought to be obtained from Cushing. At the hearing of the motion, I asked counsel to assist me in that regard. The response was that this was a straightforward case, that Beaulieu is clearly entitled to the order sought, and that the onus was on Cushing to show that re-attendance would serve no purpose, and therefore that it would not serve the interests of justice to have her re-attend.
[33] That response was not helpful to me, and, further, in my view mis-states the law on this issue.
[34] It is up to the moving party to establish that the answers provided genuinely give rise to follow-up questions such as to make the re-attendance simply a continuation of the examination for discovery.
[35] Beaulieu has failed to do so.
[36] As was stated in Senechal, at paragraph 6, “The right to a follow up discovery is not, however, an absolute right.”
[37] There is no absolute right to compel re-attendance. Discovery rights are subject to court supervision. Discretion will be exercised to ensure “the purposes of full and fair discovery.” (Senechal)
[38] Neither the giving of an undertaking in the course of examination for discovery, nor the fulfilment of that undertaking subsequently operates to give the examining party in every case the right to a further discovery. See Christie Corp. v. Alvarez [1994] O.J. No. 4161.
[39] As Strathy J. (as he then was) stated at paragraph 32 of Ramdath v. George Brown College of Applied Arts and Technology 2012 ONSC 2747, [2012] O.J. No. 2475, there is no absolute right to a follow-up discovery and the onus is on the party seeking it to establish that it would serve a useful purpose, i.e. enable the examiner to know the case to be met, to obtain admissions, to define and narrow the issues, and to promote settlement.
[40] At paragraph 25 of the Moving Party’s Factum, he submits that questions arise from the provision of the material provided, including Cushing’s prescription summary, her academic transcript, the M.R.I. disc, her employment insurance file, her records of employment, etc. But nothing further has been provided which could shed any light on what further information the moving party seeks to elicit from Cushing, or how any possible questions might be “appropriate follow-up”.
[41] The documents provided in satisfaction of the undertakings are a complete response to the undertakings given and support the answers given during the examination for discovery. There is nothing before me to suggest that further explanation is required from Cushing, nor is there any indication that the information provides new grounds for discoverability which could not have been canvassed during the initial examination for discovery. There is nothing to indicate that further questioning of Cushing is necessary to allow Beaulieu to know the case he has to meet, to further the purposes of settlement, or to narrow the issues.
[42] In the circumstances, there is no basis for me to conclude that any useful purpose would be served by compelling Cushing to present herself for further examination by Beaulieu’s counsel.
[43] The words spoken by Beaulieu’s counsel at the conclusion of the examination for discovery (“subject to questions arising out of answers to undertakings…”) do not, without more, provide the basis for the Order sought. Nor does the submission that there are questions that arise from the undertakings, make it so.
[44] No leave was requested as provided by Rule 31.03(1). Based on the evidence on this motion, I would have denied leave if same had been sought. There is no evidence of any significant change in Cushing’s condition since the examination for discovery. Nor is there evidence of any substantial or unexpected change in circumstances since the examination for discovery.
[45] The Motion is dismissed.
[46] If the parties cannot agree on costs, they are to communicate with the Trial Co-Ordinator to set a date and time to argue costs. That hearing may be by teleconference, at the option of counsel. If counsel do not communicate with the Trial Co-Ordinator within 30 days, they will be taken to have agreed on costs.
The Honourable Madam Justice Louise L. Gauthier
Released: March 24, 2015
CITATION: Cushing v. Beaulieu, 2015 ONSC 1871
COURT FILE NO.: CV-1419-11
DATE: 20150324
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lise Cushing
Plaintiff
– and –
Kevin Beaulieu
Defendant
– and –
Curtis Giroux
Third Party
ruling on motion
Gauthier J.
Released: March 24, 2015