BAKEERATHAN v. ROYAL BANK OF CANADA
CV-11-425037
2015 ONSC 6210
MOTION HEARD: OCTOBER 6, 2015
Counsel: Tate E. McLeod for Royal Bank of Canada Kristin Walker for the plaintiff
ENDORSEMENT
Master R. A. Muir –
The issue on this motion is whether the plaintiff should be required to produce certain documents from mortgage application files created in connection with two residential mortgages obtained by the plaintiff from the Bank of Nova Scotia (“BNS”) and Home Trust Company (“Home Trust”).
The motion is brought by the defendant Royal Bank of Canada (“RBC”) pursuant to Rules 30.02 and 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). Rule 30.02 requires a party to litigation to identify and produce all documents in her possession, control or power relevant to a matter in issue in the proceeding. Rule 30.10 permits an order to be made for production from a non-party if the requested documents are relevant and if it would be unfair for the moving party to proceed to trial without production of the documents.
The plaintiff had a fall at her workplace on August 11, 2009. She initiated this action in order to claim entitlement to long term disability benefits. The plaintiff gave evidence on discovery that she had not worked since her fall. This claim was settled at mediation on September 11, 2013. The defendants agreed to pay the plaintiff $150,000.00 in full and final satisfaction of her claims.
Shortly after the settlement RBC received information from the plaintiff’s brother that the plaintiff has been working “under the table” at an Esso station and a restaurant contrary to her evidence at discovery. The plaintiff’s brother also advised RBC that the plaintiff had secured mortgages from BNS and Home Trust by providing proof of her employment with Esso.
Almost immediately RBC took the position that the settlement was unenforceable as a result of this misrepresentation. Its position was confirmed in an email from its counsel dated November 6, 2013. It also took the practical and sensible position that it may be able to resolve this issue if the plaintiff agreed to produce the subject mortgage files.
The plaintiff then changed lawyers. She initially agreed to produce the documents. In fact, her new lawyers even requested the documents from BNS and Home Trust. However, the plaintiff later changed her position and now refuses to produce the mortgage files. The plaintiff has also brought a motion to enforce the settlement agreement. RBC has not yet responded to that motion and no determination as to the validity of the settlement has been made by the court.
RBC argues that the requested documents are relevant to the issue of whether the plaintiff was able to work while claiming to be disabled and whether she made misrepresentations when she gave her evidence on discovery.
The plaintiff makes the preliminary argument that a master does not have jurisdiction to hear this motion as it involves the enforcement of a settlement agreement which must be determined by a judge. In any event, the plaintiff takes the position that this action was settled over two years ago and RBC is simply seeking to re-open the litigation after all issues have been resolved. The plaintiff notes that RBC has not yet brought a motion or application to have the settlement set aside.
I do not accept the plaintiff’s jurisdiction argument. The order RBC is requesting will have no bearing on the question of whether or not the settlement is enforceable. It will simply require production of documents that may be relevant to the outcome of the plaintiff’s enforcement motion. The motion judge’s ultimate decision will not be fettered by any order made on this motion.
I accept that the documents requested are relevant to the plaintiff’s enforcement motion. RBC is not on a fishing expedition. It has some evidence from the plaintiff’s brother that the plaintiff relied on her alleged Esso employment when she obtained the mortgages. If that information proves to be true, it may be relevant to the issue of whether the plaintiff made misrepresentations when she gave evidence at discovery. Any such alleged misrepresentations may be relevant to the question of whether the settlement agreement is enforceable.
I note that at first glance it would appear that RBC’s motion is premature. It has not formally requested the court to make an order that the settlement agreement be set aside. The settlement remains extant. As such, there are no matters presently in issue between the parties with respect to the underlying litigation.
However, RBC made its position on the settlement perfectly clear from the outset. Its lawyer’s email of November 6, 2013 clearly states that the settlement is unenforceable and RBC intends to bring a motion to have the settlement agreement rescinded. RBC sought to avoid the necessity of such a proceeding by asking the plaintiff to voluntarily produce the mortgage files. The plaintiff initially agreed but later changed her mind. RBC then chose to bring this production motion but its evidence filed on this motion makes it clear that RBC maintains its position regarding the validity of the settlement.
In my view, denying the production requested by RBC at this stage would place form over substance. RBC would simply file responding evidence to the plaintiff’s enforcement motion and seek the documents on cross-examination. If the plaintiff continued to refuse production, a refusals motion would be necessary. As I have stated above, it is my view that the requested documents are relevant. More time and money would be wasted for no practical or principled purpose. Such a result would not be in keeping with the mandate that the Rules be liberally construed to secure the just, most expeditious and least expensive determination of all civil proceedings.
I am therefore ordering that the plaintiff produce the BNS and Home Trust mortgage application files but only to the extent that they reference the plaintiff’s employment. I am not satisfied of the relevance of any of the potential information in the files beyond employment matters.
For the reasons set out above, I am also ordering BNS and Home Trust to produce the requested documents to the same extent. BNS and Home Trust shall produce the documents within 30 days of being served with a copy of the formal order from this motion.
RBC has been entirely successful on this motion and is entitled to costs. As well, RBC made several reasonable requests of the plaintiff to produce the documents before it felt the necessity to launch this motion. The plaintiff agreed to those requests but then changed her mind. This motion was necessary in the circumstances.
However, it is my view that the amount requested of more than $9,000.00 is excessive for a simple motion of this nature. I appreciate that the motion is important to RBC in terms of questioning the enforceability of its settlement with the plaintiff. However, the issues really involved nothing more than a straightforward production motion in respect of discreet and limited documents. I also note that the plaintiff’s costs outline identifies costs of only $3,000.00.
For these reasons, I have concluded that it is fair and reasonable for the plaintiff to pay RBC’s costs of this motion fixed in the amount of $5,000.00, inclusive of HST and disbursements. These costs shall be paid within 30 days.
The formal order from this motion may be submitted to me for signing.
October 6, 2015
Master R. A. Muir