Redmayne v. Rose, 2015 ONSC 3011

BARRIE COURT FILE NO.: 11-1112

DATE: 20150511

CORRECTED DATE: 20150805

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cristof Redmayne, Elzbieta Redmayne, and Kenneth Redmayne, Plaintiffs

AND:

Cody Rose and Ed Rose, Defendants

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: K.E. Kemp, Counsel for the Plaintiffs/Responding Parties

R. Chown, Counsel for the Defendant/Moving Party Ed Rose

HEARD: April 24, 2015

Corrected Endorsement: The text of the original Endorsement was

Corrected on August 5, 2015 and the description of the correction is appended.

ENDORSEMENT

[1] The defendants brought a pre-trial motion seeking various heads of relief, including answers to questions refused at discovery, answers to undertakings given at discovery, a further examination for discovery, and production of various computer game consoles for inspection by a defence expert, together with the applicable password for any such game consoles.

[2] Upon the return of the motion, counsel for the plaintiffs and defendants had reached a partial agreement with respect to a number of questions and issues. However, five distinct areas remained in contention. These areas were captured in a Refusals and Undertakings Chart prepared by counsel for the defendants. The issues in contention can be grouped into five distinct categories for discussion. The categories can be listed as follows:

(i) questions for the plaintiff, Cristof Redmayne about the type of type of videogame consoles he possesses and questions concerning same, including the types of games played, the time spent playing these games, and whether or not anyone else in the home plays these games, as well as production for inspection of the game consoles together with their passwords;

(ii) questions of the plaintiff Cristof Redmayne about his consumption of marijuana and alcohol at his own home with his friend, Cody Rose, as well as his parents’ knowledge of same;

(iii) questions of Cristof Redmayne about the gun at Cody’s house;

(iv) questions of Cristof Redmayne about an unrelated incident, a stabbing he suffered in 2006;

(v) questions of the plaintiff, Kenneth Redmayne about his son’s problems growing up with gangs, drugs, alcohol, and consumption at his house.

Background

[3] This case arises as a result of a gunshot injury to Cristof Redmayne while he was a guest at the home of his friend, Cody Rose, a home owned by Mr. Rose’s father, Ed Rose. It is alleged that while Cristof Redmayne and Cody Rose were consuming alcohol and marijuana, and playing videogames, Cristof Redmayne was shot in the stomach by Cody Rose, who was handling a handgun. As a result of the shooting incident, Cristof alleges that he suffers severed and debilitating pain, primarily in the area of the tailbone. Cody Rose was charged and convicted of unlawfully causing bodily harm.

[4] It is the plaintiffs’ position that the production requested and the further answers sought are a mere fishing expedition and not relevant to the proceedings between the parties. However, the defence claims that the answers sought and the production requested are relevant and naturally flow from the pleadings in this action, and the previous answers given by Cody Rose.

Analysis

[5] The production and answers sought put into focus Rule 31.06 of the Rules of Civil Procedure, which provides as follows:

31.06 (1) A person examined for discovery shall answer, to the best of his or her 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) and no question may be objected to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or

(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.

[6] As the plaintiffs suggest in their factum at paras. 23-23:

As a result of the 2010 amendment to the Rules of Civil Procedure, the test of semblance of relevance has been replaced with a stricter test of relevance. The new test requires that a party establish that a document and/or question is relevant, not that it may be relevant for some line of inquiry. The previous broad and liberal default rule of discovery is now gone.

[7] The defence points out that Cristof Redmayne lives at home with his parents and spends a great deal of his time, by his own admission, playing videogames. The defence points out that the plaintiff has filed a report from a psychologist and a psychiatrist with respect to this traumatic event. The defence suggests that the production of the video console will provide an insight into how Mr. Cristof Redmayne spends his day, including:

(a) the amount of time Mr. Redmayne has spent playing various videogames;

(b) the titles of various videogames he has played, which will permit an understanding of the skills involved in playing the game, and the social contact, if any, with other players that occurs during the game;

(c) his achievements in the various games; and

(d) when each game achievement was reached.

[8] In Araujo v. Jews for Jesus, [2010] O.J. No. 4739, Master Dash described the amendments to the Rules about relevancy as follows:

The test under Rule 31.06 before the recent amendments to the Rules of Civil Procedure which came into effect on January 31, 2010, required a person under examination to answer any questions “relating to” any matter in issue in the action. This was judicially interpreted as meaning any question with a “semblance of relevance” to any issue in the action. A “wide latitude” was permitted in questioning. The effect of the change in the rules is “to discard the ‘semblance of relevance’ test and replace it with a simple relevance test”. The test of semblance of relevance has therefore been replaced “with a stricter test of ‘relevance’”. Although in many cases it will be difficult to separate what is relevant from what has a semblance of relevance, and while “the recent change in wording ought not to deprive parties of a meaningful discovery, nevertheless the changed wording must be given some meaning”. [Quotations omitted.]

[9] In Araujo, Master Dash declined to order production of certain emails between the plaintiff and third parties.

[10] In Stewart v. Kempster, [2012] O.J. No. 6145, Heeney R.S.J. refused to order the private portion of the plaintiff’s Facebook account, finding that the test of relevance was not met. As the court noted at para. 31:

The defendant’s request to search the plaintiff’s private correspondence and other data in her Facebook account in the hope that they might find something useful is akin to searching the plaintiff’s filing cabinet. It is a fishing expedition and nothing more.

[11] I now turn to the specific areas of questions or productions as raised by the defendants in this motion.

(i) Questions About the Videogames and Production of Game Consoles

[12] The parties acknowledge that the records from a certain game console used by Mr. Cristof Redmayne from the date of the accident until 2013 is a matter of public record, to some extent. However, there are no public records traceable to Mr. Redmayne after that date. But Mr. Redmayne acknowledges playing videogames extensively. In my view, the nature and extent of the games played and the time played is relevant. The type of games played is also relevant. For example, if Mr. Redmayne is playing games involving violence, shooting, etc., that may provide useful information for defence cross-examination of his psychiatrist or psychologist if either is relied upon as a witness at trial.

[13] In my view, the production of a game console cannot be considered highly intrusive. It simply tracks the type of games played, the scores achieved, and the hours spent on the console. It does not show who is playing the console, and so answers about its use within the home are important. It does not disclose any core biological information about Mr. Redmayne unlike medical records, nor does it allow the defence to engage in a fishing expedition such as a search of e-mails or private Facebook accounts. It is therefore ordered that Mr. Redmayne produce the requested game consoles and answer the questions highlighted on pages 7, 8, and 9 of the Refusals and Undertakings Chart.

(ii) Alcohol and Marijuana use at Mr. Redmayne’s own Residence

[14] This line of questioning has to do with whether or not Mr. Redmayne and his friend, Cody, smoked weed or drank alcohol at Mr. Redmayne’s own residence, and whether or not his parents were aware of this. This accident did not happen at the residence of the Redmaynes. It happened at the residence of the Roses. I am satisfied that these questions are not relevant within the spirit of Rule 31.06. Cristof Redmayne is not required to answer this line of questions identified on page 4 of the Refusals Chart.

(iii) Questions About the Gun

[15] The refused question is as follows: “Why didn’t you tell Ed that Cody had the gun out?” Ed is Ed Rose, one of the defendants in this action. The incident happened at the end of a prolonged overnight of drinking and marijuana use at Mr. Rose’s residence. I am satisfied that the question is relevant to the plaintiffs’ action against Ed Rose and therefore should be answered.

(iv) 2006 Stabbing Incident

[16] Cristof Redmayne was stabbed in 2006, in connection with an unrelated incident. His evidence on discovery was that he made a complete recovery. The report of his psychologist indicates that he got better as a result of that incident. The line of questions ask details about the stabbing, including where it took place, if criminal charges were laid against another person, what happened in the incident, and victim impact statements. I am satisfied that these questions are not relevant. Mr. Redmayne’s medical records have been produced for defence use, and there is no evidence he was obtaining any ongoing treatment prior to this gunshot injury. Therefore, Mr. Redmayne is not required to answer the questions highlighted on page 5 of the Refusals Chart.

(v) Questions of Kenneth Redmayne About his own use of Videogames and his Knowledge of his son’s Previous History of Problems with Alcohol or Drugs

[17] I am satisfied that Kenneth Redmayne should answer questions about his own use of the videogame consoles. Because the consoles themselves will only show use but not who used them, it is relevant to eliminate other members of the household, or determine their use, if any. In my view, those questions highlighted on page 19 ought to be answered by Mr. Kenneth Redmayne.

[18] The other questions relate to his son’s upbringing, including problems with the law or gangs, or the use of alcohol or drugs, particularly in the home. These questions relate to Cristof Redmayne’s consumption at his own home, and do not reflect the activities at the Rose residence. Further, Cristof was 20 years of age when this occurred. I am not satisfied that the questions identified and highlighted on page 18 of the Refusals Chart ought to be answered by Kenneth Redmayne.

Conclusion

[19] It is ordered that the plaintiff, Cristof Redmayne preserve and produce for inspection the game consoles and related passwords for items mentioned in paragraph 5 of the Notice of Motion. It is further ordered that the groups of questions from the Refusals and Undertakings Chart as noted above, be answered by the plaintiffs.

Costs

[20] The parties are encouraged to settle the issue of costs. If costs are not settled, the defendants may make costs submissions within twenty days of the release of this endorsement, and the plaintiffs will have a further ten days to respond. Submissions not to exceed three pages.

MULLIGAN J.

Date: August 5, 2015

August 5, 2015 – Corrections:

1. Page 1, under “COUNSEL” (second line) now reads: R. Chown, Counsel for the Defendant/Moving Party Ed Rose.

2. Para. 3, second sentence now reads: It is alleged that while Cristof Redmayne and Cody Rose were consuming alcohol and marijuana, and playing videogames, Cristof Redmayne was shot in the stomach by Cody Rose, who was handling a handgun.