SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-5572-00
DATE: 20150717
RE: YOJNA GUPTA – and – THAKAR SINGH and FORTIGO FREIGHT SERVICES INC.
BEFORE: André J.
COUNSEL:
S. Sharma, for the Plaintiff
P.K. Dhami, for the Defendants
HEARD: July 3, 2015
E N D O R S E M E N T
[1] The defendants, Thakar Singh and Fortigo Freight Services Inc. (collectively known as “Fortigo Freight”), bring a motion for an order that the plaintiff, Ms. Gupta provide answers to two questions she refused to answer during her Examination for Discovery on June 17, 2014. Ms. Gupta opposes the motion on the grounds that she has already provided answers to the questions or alternatively, the information sought is irrelevant.
BACKGROUND FACTS
[2] Ms. Gupta was involved in a motor vehicle accident on October 12, 2012. She made a claim for damages resulting from the injuries sustained in the accident.
[3] During her Examination for Discovery, Ms. Gupta testified that at the time of the accident she was on the phone with a representative of the Children’s Aid Society (CAS) and that she was “sad and depressed”.
[4] Ms. Gupta has provided OHIP records to Fortigo Freight from 2006 which indicate that Ms. Gupta did not suffer from depression or anxiety prior to the accident.
[5] During the Examination for Discovery, Ms. Gupta was asked the following questions:
Q.800 Could I have the CAS file from three years pre-accident to date?
Q.561 After you left the mall. So you had already dialled, or picked up the phone by the time the accident occurred?
A. Yes.
Q. Could we have the cell phone records for the day of the (accident)?
A. Why is that relevant?
ANALYSIS
[6] There is no question that under Rule 31.07(1)(a) and (b), Ms. Gupta has failed to answer the two questions noted above.
[7] Regarding the first question, Ms. Gupta claims that the question is not relevant. However, Ms. Gupta is claiming damages for psychological problems which she allegedly experienced following the accident. Furthermore, she also testified that she suffered from depression prior to the accident.
[8] The extent of any pre-accident depression Ms. Gupta may have experienced is relevant in this litigation. An examination of the CAS file is therefore necessary to assess whether Ms. Gupta complained about such problems and if so, the extent of such problems.
[9] Ms. Gupta fears that disclosure of the CAS file would breach the privacy interests of her autistic son who has received professional help from the CAS.
[10] That concern however, could be easily addressed through non-disclosure of any information relating to Ms. Gupta’s son.
[11] The second refusal relates to the disclosure of Ms. Gupta’s cellphone records on the date of the accident, from 11:00 a.m. to 2:00 p.m. Ms. Gupta maintains that she has already provided answers to these questions.
[12] For example, she points out that in answer to Q. 534 regarding when she last used the cellphone before the accident, she replied: “After I left the mall”. Furthermore, she maintains that in answer to Question 554, she indicated that she was talking to a CAS representative about her son when the accident occurred.
[13] These answers however, do not indicate the duration of the call which Ms. Gupta made to the CAS. The duration of the call may be relevant to the issue of the causation of the accident given the defendant’s position that Ms. Gupta cut-off the other driver, thereby contributing to the accident. To that extent, the cellphone records should be disclosed to the defendants.
DISPOSITION
The plaintiff must provide a copy of her Children’s Aid Society file to the defendants after all information pertaining to her son is redacted from the file.
The plaintiff must provide, or otherwise authorize the release of her cellphone records for October 22, 2012, from 11:00 a.m. to 2:00 p.m.
COSTS
[14] The defendants seek costs in the amount of $2,426.24 on a partial indemnity basis.
[15] In assessing the quantum of costs that can be considered fair and reasonable in this matter, I consider the following:
The defendants were substantially successful.
The defendants sent twelve (12) letters to the plaintiff requesting answers to the questions. Undertakings were only satisfied on June 18, 2015.
The matter was not complicated and did not require a great deal of preparation.
The motion did not require a considerable amount of court time.
[16] Based on the above, I order that:
- The plaintiff must pay costs fixed in the amount of $1,500 inclusive, to the defendants within sixty (60) days of today’s date.
André J.
DATE: July 17, 2015
COURT FILE NO.: CV-13-5572-00
DATE: 20150717
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: YOJNA GUPTA – and – THAKAR SINGH and FORTIGO FREIGHT SERVICES INC.
BEFORE: André J.
COUNSEL: S. Sharma, for the Plaintiff
P.K. Dhami, for the Defendants
ENDORSEMENT
André J.
DATE: July 17, 2015