ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 4570/12
Date: 2015/07/28
B E T W E E N:
Jaime Muyal and Danielle Muyal
Maurice Benzaquen, for the Plaintiffs/Responding Parties
Plaintiffs
(Responding Parties)
- and -
Sephardic Kehila Centre, Sephardic Educational Foundation of Toronto and Or Haemet Sephardic School
Kevin R. Bridel, for the Defendants/Moving Parties
Defendants
(Moving Parties)
Heard at Welland, Ontario:
July 22, 2015
The Honourable Justice T. Maddalena
ENDORSEMENT ON MOTION
[1] This motion, heard only in part, deals with refusals and undertakings.
[2] The action arises as a result of a slip and fall accident that occurred on March 1, 2010 at the parking lot of 7026 Bathurst Street, Toronto, Ontario.
Issues in Dispute (In Part Only):
Re-examination of November 21, 2013 of the Plaintiffs
[3] The disputed refusals and undertakings dealt with on this motion are as follows:
• #1 on the refusals and undertakings chart dealing with Question 267;
• #9 on the refusals and undertakings chart dealing with Question 519; and
Continuation of the examination of the plaintiffs of December 8, 2014:
• #1 regarding damages records and pertaining to Questions 1082 to 1083 to permit the defendants’ forensic accountant access to the doctor’s financial books and records relating to his practice.
[4] The balance of the motion is adjourned without a date and may be returned on seven days’ notice. This is due to insufficient time to deal with all of the motion as it should have been placed on a long motion list.
Refusal and Undertakings Dealing with Question 267 and Questions 1082-1083
[5] The moving parties/defendants (“the defendant”) have provided correspondence from David Burkes, their forensic accountant, dated July 17, 2015 outlining that a very significant amount of information required for them to report on economic loss remains outstanding. The information/disclosure requested in that correspondence should be made available to the defendant.
[6] The plaintiffs (“the plaintiff”) submit that everything in the possession of the plaintiff has been provided by their accountant and they have absolutely nothing further to provide, and therefore oppose the disclosure requested.
[7] The moving party has referred, for example, to Tab D of the responding affidavit of Irene Adams sworn 15th of July 2015. Tab D is a production report marked generally from March 3, 2005 to April 22, 2015, but individual production reports have no date so the defendant contends it is impossible to determine what falls within pre and post accident.
[8] The court recognizes that this is an important issue as there is a very significant economic loss in dispute.
[9] Given the position of the parties referred to above, perhaps the problem is with retrieving the very specific information required and requested from the computer program of the plaintiff.
[10] In order to resolve this, in the court’s view, it is appropriate to order that experts from both the plaintiff and the defendant attend at the business premises of the plaintiff, together with any necessary and deemed appropriate software experts, to permit access to the computer systems of the plaintiff so that the information requested may be provided to the defendant. This shall occur at a date and time convenient to all parties and all cautions shall be undertaken to preserve and protect the integrity of the computer systems of the plaintiff.
[11] Unless otherwise agreed, the plaintiff and the defendant shall bear his or her own costs to accomplish this.
#9 on the Undertakings Chart Dealing with Question 519
[12] The question at issue is whether the plaintiff made any prior complaints or noted prior problems with respect to ice and snow at the premises in question.
[13] This was refused by the plaintiff as not relevant. The defendant’s position is that this is relevant to the status of the property prior to the slip and fall, and the issue of whether there were ongoing complaints is relevant to the plaintiff’s claim of negligence as alleged in the Statement of Claim, and particularly in paragraphs 9 and 10 of the Statement of Claim.
[14] It is the court’s ruling that the question is relevant to the claims at issue. The plaintiff’s prior complaints or lack thereof are relevant to his knowledge which could relate to the standard of care in negligence, the systems of inspection of the defendant, and generally to the claims of negligence.
#1 on the Examination of December 8, 2014
[15] This is a request to allow the defendant’s forensic accountant access to the plaintiff’s financial books and records. The court agrees that this is relevant to the issue of economic loss. I have addressed this issue under item #1, Question 267.
Costs
[16] I order no costs for the part motion argued on July 22, 2015. The balance of the motion not dealt with on the 22nd of July 2015 is adjourned without a date and may be brought back on seven days’ notice. The entirety of costs may be dealt with on that motion.
Maddalena J.
Released: July 28, 2015
COURT FILE NO.: 4570/12
DATE: 2015/07/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jaime Muyal and Danielle Muyal
Plaintiffs
(Responding Parties)
- and –
Sephardic Kehila Centre, Sephardic Educational Foundation of Toronto and Or Haemet Sephardic School
Defendants
(Moving Parties)
ENDORSEMENT ON MOTION
Maddalena J.
Released: July 28, 2015