Jack Toof et al. v. Tralore A. Chandler, 2015 ONSC 6520

SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 292/12

DATE: 2015 10 21

RE: Jack Toof, Jennifer Toof and Samuel Toof, an infant by his litigation guardian Jennifer Toof v. Tralore A. Chandler

BEFORE: Bloom, J.

COUNSEL: A. Patrick Wymes, Counsel for the Plaintiffs
Donald J. Dacquisto, Counsel for the Defendant

HEARD: October 19, 2015

E N D O R S E M E N T

1The Plaintiffs move to strike portions of the Statement of Defense without leave to amend and for an order that the Defendant answer a list of written questions by way of written examination for discovery.

2The action is a negligence action arising from a motor vehicle accident which occurred on April 27, 2010 and in which Jack Toof was injured. Liability on the part of the Defendant at 100% was determined by Justice Thompson of this court on a summary judgment motion. The endorsement and formal order on that motion are dated November 10, 2014.

3The Plaintiffs move to strike paragraphs of the Statement of Defense on the basis that they do not plead material facts as required by the Rules of Civil Procedure. Specifically the Plaintiffs submit that the time honoured practice followed by the insurance defense bar in motor vehicle litigation by which the Statement of Defense essentially pleads simply that the Plaintiff did not suffer damages or that they are exaggerated, does not comply with the obligation to plead material facts.

4The Defendant submits that the issue has been determined already by Justice Thompson and should not, therefore, be relitigated. In any event, argues the Defendant, the Statement of Defense has pleaded material facts.

5In my view the portions of the Statement of Defense attacked are proper pleas of material facts. They relate to matters of damages of the Plaintiff, Jack Toof, which at the time of the delivery of the Statement of Defense would not normally be known to the Defendant. The Defendant’s position in more detail would be expected to be revealed by the disclosure of Defense medicals and the discovery process. The Statement of Defense adequately pleaded material facts on the damages issue to allow the case to proceed to discovery; the parties would know what the issues were with sufficient precision to allow proper discovery.

6In view of my conclusion about the adequacy of the Statement of Defense, I need not determine whether the same matter was before Justice Thompson and, if so, what the consequence would be for the disposition of this motion.

7I turn now to the issue of the written discovery questions. The Defendant submits that the relief sought is barred by Rule 31.02(1) without leave of the court. On the merits, the Defendant submits that the questions are not proper.

8I have reviewed the written questions. In my view they are not a legitimate use of the discovery process to inform the Plaintiffs of the nature of the Defendant’s case. The questions are unreasonable taken in their totality. If they sought, for example, simply to flesh out the nature of surveillance evidence bearing upon Jack Toof’s damages, they would have been unobjectionable. Instead they are a dense barrage of demands which misuse the discovery process. It is not desirable in the interests of expeditiousness or minimizing costs to encourage this type of discovery. For those reasons I will not order the answer of those questions or grant leave to ask them if leave is necessary.

9I, therefore, dismiss the motion at bar. If the parties cannot agree on costs, I will receive written submissions of no more than 3 pages, excluding a bill of costs. The Defendant is to serve and file submissions within 2 weeks of release of these reasons. The Plaintiffs are to respond within 10 days of service of the Defendant’s submissions.

Bloom, J.