ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 5696/12
DATE: 2015/10/27
B E T W E E N:
Debra L. Robbins
A. Must, for the Plaintiff/Responding Party
Plaintiff/Responding Party
- and -
Sears Canada Inc.
R. Campbell, for the Defendant/Moving Party
Defendant/Moving Party
- and –
Domclean Limited
No one appearing
Third Party
HEARD at Welland, Ontario:
September 18, 2015
The Honourable Justice T. Maddalena
RULING ON REFUSALS MOTION
ISSUES
[1] For this motion, there are remaining 11 refusals to answer questions on the examinations of the plaintiff, Debra Robbins, held on September 18, 2013 and June 26, 2014.
[2] Initially, when the motion was brought, there were 25 refusals to answer questions. However, just prior to the hearing of this motion, 14 of those refusals were resolved, leaving 11 to be dealt with at this motion.
[3] The defendant/third party, Domclean Limited, took no position on this motion and no one was present on its behalf at the motion.
BACKGROUND
[4] This action arises out of a slip and fall that occurred on October 19, 2010 while the plaintiff, Debra Robbins, was on the premises of the defendant, Sears Canada Inc., at the Pen Centre Shopping Mall at St. Catharines, Ontario.
[5] The plaintiff’s Statement of Claim claims injuries to her right hand, right wrist, and back as a result of the slip and fall accident.
[6] The defendant, Sears Canada Inc., denies any liability for the slip and fall, and denies any associated damages.
[7] The plaintiff, Ms. Robbins, was examined for discovery on September 18, 2013 and June 26, 2014.
[8] Both parties completed a “Refusals and Undertakings Chart” which I will refer to herein.
[9] All undertakings arising from the examinations for discovery of the plaintiff were fully satisfied effective April 29, 2015.
[10] Thus, the 11 refusals still remain outstanding.
THE LAW
[11] Rule 31.06(1) of the Rules of Civil Procedure states as follows:
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.
[12] The current test, which came into effect in 2010, is “relevant to any matter in issue”, which replaced the prior test of “semblance of relevancy” and “relating to any matter in issue”.
[13] The case law has stated that the scope of the discovery is defined by the pleadings, and all discovery questions must be relevant to those issues as defined by the pleadings.
[14] Thus, the examining party may not go beyond the scope of the pleadings.
[15] I agree with the court in Blais v. Toronto Area Transit Operating Authority, 2011 ONSC 1880, in which the court held in para. 11 therein that by removal of the “semblance-of-relevance” test to a test requiring “relevant to any matter in issue”, the effect was to narrow the scope of discovery from anything with a “semblance of relevance to that which is actually relevant”.
[16] The court further held in the case of Ontario v. Rothman’s Inc., 2011 ONSC 2504, in para. 129:
…The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery is known colloquially as a “fishing expedition” and it is not permitted.…
[17] In Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917, at para. 66 the court further held:
“Materiality and relevance are key determinants in determining the propriety of a question on an examination for discovery because a deponent may justifiably refuse to answer a question if it is not material or relevant.”
[18] The courts have also held, with respect to pre-accident medical records, that the onus is on the defendant (moving party) to show relevancy.
[19] Further, Rule 29.2.03 requires the court to consider numerous factors including time, expense, and undue prejudice that could result in answering a question or producing documents.
SPECIFIC REFUSALS
[20] I am following the same numbering as the Refusals Chart prepared by counsel for ease of reference.
Refusal #4 – To Advise Whether the Plaintiff Sustained any Serious Injuries Prior to October 19, 2007
[21] Initially, the defendant asked the plaintiff in the examination whether she had sustained any serious injuries in her entire life. In submissions during the motion, the moving party/defendant requested the information for a period of 10 years pre-accident. The plaintiff refused to answer and has agreed to provide the information to the defendant for five years pre-accident.
[22] According to the Statement of Claim, the plaintiff is claiming injuries, specifically to her right hand, right wrist, and back.
[23] What is relevant and material must be framed by the pleadings. The question posed is a general question dealing with any serious injuries and has no relevance to the pleadings.
[24] In the court’s view, this is beyond the framework of the pleadings and is an “overbroad and speculative fishing expedition”.
[25] The court agrees with the position of the plaintiff that five years pre-accident disclosure is sufficient.
[26] Therefore, the plaintiff shall disclose five years pre-accident serious injuries in answer to Refusal #4.
Refusal #10 – To Advise Whether the Plaintiff has Seen any Psychologist or Psychiatrist since the Accident
[27] At discovery the plaintiff stated she had not had any psychological or psychiatric treatment related to the slip and fall incident.
[28] Clinical notes and records produced show some counselling received by the plaintiff in 2012 as a result of marital problems only.
[29] In her pleadings, the plaintiff did not plead psychological or psychiatric damages. Therefore, I find no nexus between the counselling in 2012, which resulted as a result of the plaintiff’s marital situation, and the injuries claimed in the slip and fall.
[30] As a result, I conclude the question is not relevant and not material and, therefore, was properly refused.
Refusal #12 – To Advise When the Plaintiff First Started Having Problems with her Back in her Life
[31] The plaintiff has agreed to provide information up to five years pre-accident.
[32] The defendant, during submissions at the motion, requested 10 years pre-accident as the defendant states it is seeking to ascertain the onset and severity of the plaintiff’s pre-accident impairment.
[33] Previous medical history with respect to the plaintiff’s back is at issue. There is a nexus between her current complaint and her prior preexisting condition.
[34] According to her Statement of Claim, the plaintiff states she suffered back pain as a result of the slip and fall accident. The prior history of back pain is relevant to the issue of whether her current complaints were caused by the slip and fall or attributed to the prior condition.
[35] The disclosed clinical notes and records show a history of prior back issues with the plaintiff, as well as an extensive and consistent history of prescriptions for pain medication for such injuries.
[36] There is also evidence of workplace issues with respect to the plaintiff’s workplace which extend also post-accident.
[37] Further, the clinical notes and records also make reference to a preexisting degenerative condition with respect to the plaintiff’s back.
[38] I conclude that the production of relevant medical records is fundamental to a determination of the nature, extent, and effect of the injuries which may have been suffered and the appropriate measure of damages that flow from them. Therefore, I order the plaintiff to respond to this question up to a period of five years pre-accident with the provision that if those records disclose injury related to the current accident, then the plaintiff shall request those further records.
Refusal #13 – To Provide a Complete Copy of the Plaintiff’s File from the St. Catharines General Hospital
[39] The plaintiff refused to provide such file as the plaintiff argued this could extend as far back as childhood and, thus, is too remote and not relevant.
[40] The defendant seeks, during submissions at the motion, 10 years pre-accident records from the St. Catharines General Hospital.
[41] The plaintiff has agreed to provide five years pre-accident and, in addition, the plaintiff states that if those records disclose anything related to the injuries sustained in the accident, then the plaintiff will request further records on that basis.
[42] The question is relevant since it is related and connected to damages for injuries sustained by the plaintiff and is referable to her Statement of Claim.
[43] Under the circumstances, the position taken by the plaintiff is reasonable and sufficient. Thus, the plaintiff is required to provide her file from the St. Catharines General Hospital for five years pre-accident, and if the records disclose anything related to the injuries sustained in the current accident, then a request shall be made by the plaintiff for further records on that basis.
Refusal #14 – To Provide the Plaintiff’s File from the St. Catharines General Hospital from the Date of the First Entry Related to any Back Pain or Impairment
[44] During submissions, the defendant advised that it is seeking records with respect to this entry for 10 years pre-accident.
[45] Counsel for the plaintiff stated that if there were any previous injuries related to the injuries sustained in this accident in the records five years prior to the accident, counsel would request further records on that basis.
[46] This request is material and relevant as it relates to the plaintiff’s preexisting history of back pain, which is also relevant to damages sustained by the plaintiff. Also, the plaintiff’s preexisting back pain appears to be tied to some workplace restrictions that appear in the current disclosed clinical notes as early as November 2007.
[47] While all cases turn on the specific material facts, given the history and circumstances of this particular plaintiff, I order the productions up to five years pre-accident, with the provision that if those records reveal further injuries related to the slip and fall injuries, the plaintiff shall provide those records beyond the five years pre-accident.
Refusal #15 – To Provide the Plaintiff’s file from the St. Catharines General Hospital from the Date of the First Entry Related to Right Wrist Pain or Impairment
[48] The defendant’s position with respect to this refusal is the same as #14.
[49] The plaintiff’s position with respect to this issue is the same as with regard to #14.
[50] The plaintiff has a long history of medications prescribed for pain, both pre and post-accident. In the clinical notes and records already produced there is a reference to preexisting carpel tunnel syndrome. She has been admitted to hospital with a pre-accident wrist impairment.
[51] The plaintiff appears to have a history of preexisting back and hand issues which clearly relate to the injuries alleged in the Statement of Claim.
[52] Therefore, for similar reasons as in #14, the pre-accident records are ordered in accordance with #14 herein.
Refusal #16 – To Advise Whether any CT Scans or MRIs of the Neck or Spine were Completed Prior to 2007
[53] The defendant is seeking the plaintiff’s information for up to 10 years pre-accident.
[54] The plaintiff has agreed to provide the defendant with five years pre-accident information with the proviso that if those notes disclose anything further related to the current injuries, the plaintiff will then make further and additional inquiries.
[55] The already disclosed clinical notes and records make reference to the plaintiff having degenerative changes in her neck and spine aggravated by the slip and fall.
[56] It is therefore relevant and material in determining if the damages for injuries sustained were affected by the preexisting conditions.
[57] I have concluded that in order to determine the onset or severity of the back issues, under the circumstances, it is appropriate for the plaintiff to provide the information for five years pre-accident, with the same proviso as in paragraph 54 herein.
Refusal #17 – To Advise Whether the Plaintiff saw any Specialists for her Back Prior to 2007
[58] The defendant, during submissions at the motion, requested the information for 10 years pre-accident.
[59] The plaintiff has agreed to five years pre-accident with the same qualifications as in items 13, 14, 15 and 16.
[60] The clinical notes and records already disclosed make reference to pre-accident back surgery. There is further continuation of prescription pain medications and anti-inflammatories with respect to the injuries sustained.
[61] The clinical notes and records already produced further could lead one to the conclusion that there is a history of protracted back issues with respect to the plaintiff and, thus, for the similar reasons as provided in #’s 14, 15 and 16, I again order the information to be provided for five years pre-accident, with the same provisions attached thereto.
Refusal #20 – To Advise if the Plaintiff Received Any Compensation as a Result of the 2008 Motor Vehicle Accident
[62] The defendant agrees that the general damages award in the 2008 accident is not relevant, but queries that if the plaintiff received monies for future medical and rehabilitation benefits and future care costs, that is relevant and material.
[63] The defendant submits that in order to avoid double-recovery, the receipt of monies from a prior motor vehicle accident speaks directly to the possible damages in the slip and fall accident.
[64] The test is whether the request is relevant and material, and the defendant submits that the issue relates to the damages claimed. In the case of Pete v. Lanouette, 2002 BCSC 75, [2002] B.C.J. No. 116, at paras. 29 and 30 the court held as follows:
29 Much mischief would be had in these proceedings if, in fact, the plaintiff has already been compensated for “permanent physical disability” and a perspective “loss of earnings”, and a “loss of opportunity to earn income and a diminished capacity to earn income”, claims she has made in this action.
30 In effect, there is a real possibility here that without the disclosure of the settlement documents and the information requested, the plaintiff could be compensated again for injuries for which she has already received compensation.
The court concluded, therefore, that the information and the disclosure must be produced.
[65] Hodgson v. Timmons, [2006] N.S.J. No. 391, was similarly a case, albeit of the Nova Scotia Supreme Court, where the defendant made an application for an order requiring the plaintiff to answer a discovery request as to the amount of compensation the plaintiff received in relation to injuries sustained by her in a prior motor vehicle accident. The defendant argued in that case, as is argued here, that there is a possibility that the plaintiff may be compensated twice for the same injury if the information is not available to the defendant.
[66] The defendant argues in the instant case, as did the defendant in Hodgson, that the quantum of compensation received by the plaintiff in connection with the previous accident may provide some indication of the extent of injuries sustained by the plaintiff in the previous accident. This may assist in determining whether there may be any overlap in damages.
[67] The case law has established that the principle against “double recovery” is well-established. An injured person should be compensated for the full amount of his or her injuries, but no more. Thus, a defendant is only responsible for damages they caused, if any.
[68] What is generally relevant is an issue of law, to be determined by the judge. In the instant case, the motor vehicle accident occurred in 2008, while the plaintiff had her slip and fall in 2010. There is proximity in time between the motor vehicle accident and a slip and fall accident.
[69] I conclude that under all of the circumstances the compensation received from the 2008 motor vehicle accident by the plaintiff is relevant to the injuries sustained in the slip and fall for which the plaintiff is currently seeking compensation.
[70] Therefore, I order production of the 2008 motor vehicle accident documents by the plaintiff to the defendant.
Refusal #21 – To Provide the Property Damage File From the 2008 Motor Vehicle Accident
[71] The test once again is relevancy and materiality.
[72] I agree with the cases that state that medical records are better indicators of the seriousness of any injury.
[73] In Peever v. Waite, 2013 ONSC 7916, 2013 CarswellOnt 18068, in para. 11 the court states (regarding item “(l)” in that case):
This, in the circumstances of this action, is not relevant. In this action the Plaintiff has provided sufficient information about this earlier accident at her examination for discovery such that the actual property file is not relevant. What is relevant to this ongoing action is whether any injuries from this earlier accident were and are ongoing and this will be in the medical documentation produced for the period before the accident. It will not be in the property file of the earlier accident. I note that the property file of an earlier accident can in some actions be a relevant request but not in all actions and not in this action considering the evidence on discovery where the Plaintiff provided details of this earlier accident and disclosure of medical documentation for the period three years pre-accident.
[74] Accordingly, item #21 is a proper refusal by the plaintiff.
Refusal #23 – To Advise if the Plaintiff had any Addictions Related to her Physical Health
[75] I do not find this question is either material or relevant. Further, the plaintiff is not a medically trained individual and she is not able to properly answer the question posed to her.
[76] Furthermore, she has not pleaded any addictions in her Statement of Claim. There is nothing in the clinical notes and records produced that could possibly suggest an addiction.
[77] The court notes she is had the same family doctor throughout a lengthy period of time. This physician has been prescribing pain medication and anti-inflammatories to her and there is no suggestion or concerns in any of the notes raised with respect to an addiction.
[78] Therefore, I conclude the question is not relevant, too remote, and in the nature of a “fishing expedition”. Therefore, the question is not permitted and has been properly refused by the plaintiff.
COSTS
[79] Given the mixed success of both parties with respect to the motion, I make no order as to costs of this motion.
Maddalena J.
Released: October 27, 2015
COURT FILE NO.: 5696/12
DATE: 2015/10/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Debra L. Robbins
Plaintiff/Responding Party
- and –
Sears Canada Inc.
Defendant/Moving Party
- and –
Domclean Limited
Third Party
RULING ON REFUSALS MOTION
Maddalena J.
Released: October 27, 2015