Court File and Parties

COURT FILE NO.: CV-13-360 DATE: 2015-11-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Denis Fitch, Plaintiff AND: Linda Jean Fleming, Estate Trustee for the Estate of Amanda Janine Fleming, Defendant AND: Her Majesty the Queen in Right of the Province of Ontario, Michelle Fisher, Keith Mummery, Melissa Mummery, Glen Childs, Dennis Singh, Carillion Canada Inc., and Two Roads Management Inc., Third Parties

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: G.P. Mallia, Counsel for the Moving Party/Defendant A. Amirsolaimani (Articling Student), Counsel for the Responding Party/Plaintiff No one appearing for Third Parties

HEARD: November 17, 2015

ENDORSEMENT

[1] In her motion, the defendant seeks an order compelling documentary production from the plaintiff prior to the scheduled examinations for discovery. Counsel for the parties were able to resolve most items requested. This decision will only address the items in dispute.

Background

[2] This action arises out of a motor vehicle collision occurring on November 30, 2012. The plaintiff, Denis Fitch, was operating a transport truck. Amanda Janine Fleming was operating the other motor vehicle. As a result of the collision, Ms. Fleming and her infant son died. Mr. Fitch has sued Ms. Fleming’s estate, alleging her vehicle crossed the centreline. He seeks a significant damage award for psychological injuries. Issues pertaining to both liability and damages are raised in the pleadings.

[3] The statement of claim was issued on November 12, 2013. The statement of defence is dated June 12, 2014. The Third Party Claim was issued on June 23, 2014.

[4] Examinations for Discovery are scheduled for December 2, 2015. Despite scheduling being arranged in April 2015, this motion was only first returnable on October 30, 2015.

[5] Mr. Fitch was involved in a prior motor vehicle accident on December 23, 2008. He sued. A statement of claim was issued in December 2010. Alleged injuries included accompanying anxiety, depression and emotional trauma. A consent order was granted in November 2013 dismissing the action. Mr. Fitch also was injured at work in September 2010 when he fell off a truck.

Production Requests in Dispute

[6] Mr. Mallia seeks production of the following documents:

(i) clinical notes and records of Dr. Miller, family physician for Mr. Fitch, from 2006 forwards;

(ii) medical reports filed to maintain his trucking licence;

(iii) prescription summary for five years prior to the index motor vehicle accident forwards;

(iv) from the 2008 motor vehicle accident, the complete property damage file, accident benefits file, police reports, ambulance call reports and hospital records;

(v) from the 2008 motor vehicle accident litigation, all transcripts from any examination for discovery or examination under oath, including all Schedule A documentation;

(vi) all documentation with respect to the injury sustained when Mr. Fitch fell off a truck at work;

(vii) post 2012 motor vehicle accident driving abstract;

(viii) records from completion of GED course;

(ix) all GPS downloads, and black box downloads;

(x) confirmation the only employers since 2005 were Joseph Haulage and Carey Leasing and, if others, all employment files including medical and payroll records; and

(xi) sworn affidavit of documents.

[7] There were 22 original production requests in the notice of motion. The remaining 11 items were satisfactorily addressed by plaintiff’s counsel prior to the hearing.

[8] Mr. Mallia submits the production requests are relevant to liability and/or damage issues in the present litigation, in particular:

(a) Mr. Fitch consulted Dr. Miller regarding the 2008 injuries, including anxiety and depression;

(b) the statement of claim is broadly based regarding alleged injuries and related matters;

(c) prescription medication since at least 2007 has included Percocet and other narcotics for chronic pain that may be associated with depression and psychological complaint;

(d) medical reports are filed with the Ministry of Transportation to renew a truck driver’s licence;

(e) the settled 2008 accident litigation involved similar claims as in the present action and reports then produced would include witness statements that would be helpful;

(f) medical notes regarding the 2010 fall refer to neck tension;

(g) driver’s abstract pertains to alleged loss of income and ability to work having regard to medical record of June 14, 2013 with reference to a ticket for stunt driving on a motorcycle;

(h) GED course records would reveal ability to perform academically;

(i) GPS and black box pertains to liability; and

(j) a sworn affidavit of documents in advance of examinations for discovery is needed to prepare.

Response to Requests

[9] Ms. Amirsolaimani challenges the requests for production in advance of examinations for discovery on the basis of not being relevant, overly broad and, with respect to the 2008 accident litigation, contrary to the deemed undertaking rule and, in some respects, protected by solicitor client privilege.

[10] As to certain items, Ms. Amirsolaimani reports:

(a) the notes and records of Dr. Miller have been produced from November 2009 forward and counsel has recently requested his records from 2008 to include the prior accident consultations;

(b) Mr. Fitch has reported that medical testing with respect to his truck driving licence is only done every 5 years, and that counsel so disclosed this fact in correspondence dated April 30, 2015;

(c) the complete employment file from Joseph Haulage was requested and what was received was produced in full – requests to Carey Leasing have been ignored – she was not in a position to confirm there were no other employers since 2005 having only been made aware of this request during submissions;

(d) medical records regarding the 2010 fall were produced;

(e) the complete school records from Fanshawe College and the GED course were produced on October 30, 2015;

(f) a draft affidavit of documents has been served and a sworn affidavit will be delivered at the examinations for discovery.

[11] Ms. Amirsolaimani also indicated that the defendant and the third parties have not served a sworn affidavit of documents.

Analysis

[12] Rule 30.03 directs every party to serve a sworn affidavit of documents. Such is to be provided prior to examinations for discovery so that counsel are made aware of all documents and can properly prepare. Unfortunately, the rule is routinely ignored with a sworn affidavit being only delivered at the examinations. This is not helpful and frequently results in unnecessary undertakings and refusals. Accordingly, the plaintiff, defendant and the third parties are directed to serve a sworn affidavit of documents on or before November 27, 2015.

[13] Rule 31.06, in its present form, establishes a “relevancy” test for discoveries, replacing the former “semblance of relevancy” standard. The onus of meeting the test is on the moving party. This is normally addressed by affidavit evidence.

[14] The moving party relies on the affidavit of Carolynne J. Wahlman, counsel for the defendants, sworn October 20, 2015. This affidavit is poorly drafted and is silent as to relevancy. The attached exhibits, namely medical records, provide some, but limited, information.

[15] The statement of claim, in paragraph 6, identifies the injuries sustained in the motor vehicle accident as “post-traumatic stress disorder, depression, anxiety and sleep deprivation”. While paragraphs 7 and 8 make reference to accompanying “chronic pain … diminished energy and stiffness” and “pain and suffering, a loss of enjoyment of life and a loss of amenities”, I read the pleading as limiting the claim to psychological, not physical, injury. Such, in my view, is a significant factor having regard to prior injuries and litigation and other events.

[16] I well understand the potential connection, particularly to the prior statement of claim and the prescription history referred to in Dr. Miller’s notes, however, I am not persuaded the moving party has met the threshold test of relevancy. At best, it could be said, on this evidence, there is a semblance of relevancy but that is no longer the standard. There is no evidence connecting the documents to an issue in this case.

[17] In this regard, I agree with Ms. Amirsolaimani that the motion is premature. Relevancy may well be established on examinations for discovery. The evidence on the motion falls well short.

[18] Plaintiff’s counsel has made significant documentary disclosure, both before and as a result of this motion. On my review, I am satisfied defendant’s counsel has sufficient production from the plaintiff to properly prepare for the examinations for discovery. The matters raised in this motion may be explored in that examination. As stated above, the answers provided may meet the test for relevancy. Only then can production be addressed.

Summary

[19] For the foregoing reasons, save for the order pertaining to affidavits of documents, the defendant’s motion is dismissed. Such is without prejudice to a similar production motion following the examinations for discovery, perhaps then presented as an undertaking or refusals motion.

[20] As a result of the ruling based on relevancy, no decision is required at this stage on other grounds for refusal, including the deemed undertaking rule.

[21] There has been mixed success in that the motion was required to obtain further productions from the plaintiff. Unless counsel have a strong argument, it appears no costs ought be awarded. If costs are requested, brief written submissions shall be exchanged and delivered to my chambers in Cayuga within 30 days.

D.J. Gordon J.

Date: November 24, 2015