CITATION: Ellis v. Da Costa, 2016 ONSC 1548
COURT FILE NO.: 46511/05
DATE: 20160307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Ellis, by his litigation guardian Kim-Ann Greidanus, Lynn Ellis, Larry Ellis, Rebekah Ellis Atwell and Jessica Ellis by her litigation guardian, Children’s Aid Society of London & Middlesex
Plaintiffs
– and –
Iberia Da Costa and Ford Credit Canada Limited
Defendants
Devan Marr, for the plaintiffs
Laura Emmett, for the defendant Iberia Da Costa
Madeleine Godard, for the defendant Ford Credit Canada Limited
HEARD: February 16, 2016
leitch j.
[1] The plaintiff has brought a motion to restore this action to the trial list; an order granting leave to discontinue the Family Law Act claims of Rebekah Ellis Atwell and Jessica Ellis without costs; an order dispensing with service of the motion materials on Larry Ellis and Lynn Ellis; and, an order removing Mr. Arvai as solicitor of record for these defendants.
[2] The parties have agreed that an order can go on consent restoring this action to the trial list, subject to their rights outlined in an agreed upon timetable.
[3] Pursuant to r. 48.11, leave is granted to place this action on the trial list with the requirement that the parties comply with the agreed upon timetable.
[4] The defendants take no issue with the claim of Rebekah Atwell and Jessica Ellis being discontinued. However, they seek a condition to that discontinuance, namely, the right to examine those plaintiffs for discovery.
[5] The plaintiffs’ motion record does not set out the rule pursuant to which they have brought this motion however, r. 23 governs the discontinuance by the plaintiff of all or part of an action against any defendant. At this stage of this action leave of the court is required given that all parties have not consented to the discontinuance.
[6] In the materials filed in support of this motion plaintiffs’ counsel has asserted that the Family Law Act claimants were pursuing a claim for loss of care guidance and companionship. However, the statement of claim indicated that they were claiming an “entitlement for compensation for nursing, housekeeping and related services which they have provided and will continue to provide to” Michael Ellis.
Background Facts
[7] In March 2003 when he was 13 years of age, the plaintiff Michael Ellis was injured when as a pedestrian he was struck by a vehicle operated by the defendant Iberia Da Costa and owned by the defendant Ford Credit Canada Limited.
[8] It is alleged that Mr. Ellis sustained a severe traumatic brain injury as a result of this accident.
[9] The plaintiffs commenced this action by way of a statement of claim filed on February 23, 2005.
[10] In addition to the claim advanced on behalf of Michael Ellis, a claim was advanced on behalf of Lynn Ellis and Larry Ellis, the mother and step-father of Michael Ellis and Rebekah Atwell and Jessica Ellis, the siblings of Michael Ellis.
[11] The statement of claim was amended on November 27, 2009 to reflect a change in legal guardianship of Mr. Ellis to Ms. Greidanus.
[12] An amended amended statement of claim was issued by the plaintiffs on October 1, 2014 amending the claim for general damages from $1 million to $9 million.
[13] Since May 2005, counsel for the defendant, Iberia Da Costa, has endeavoured to examine the family law claimants for discovery. By correspondence dated May 25, 2015, former counsel for the plaintiffs was advised that examinations for discovery had been scheduled for August 2005. While the examination for discovery of Michael Ellis proceeded as scheduled, the discovery of the other plaintiffs did not proceed as scheduled.
[14] On May 6, 2009 a notice of change of solicitors was served and the plaintiffs are now represented by their current counsel.
[15] Thereafter, a draft discovery plan was prepared by counsel for the defendant Iberia Da Costa. This plan contemplated the scheduling of examinations for discovery of the Family Law Act claimants. Ultimately the continued discovery of Michael Ellis and the examination of the Family Law Act claimants were rescheduled to November 30, 2010. On that date the continuing discovery of Michael Ellis proceeded but the discovery of the Family Law Act claimants did not proceed as scheduled.
[16] On July 31, 2014 counsel for the defendant Iberia Da Costa corresponded with plaintiffs’ counsel indicating a desire to arrange for examination for discovery of the Family Law Act complainants and requesting clarification as to whether the current counsel for Michael Ellis had been retained by all of the plaintiffs.
[17] In correspondence dated August 2014 counsel for the plaintiffs responded and indicated that they acknowledged that the claims of the Family Law Act claimants would not exceed the statutory deductible and they were in the process of seeking instructions to get off the record.
[18] Counsel for the defendant Iberia Da Costa responded and indicated that if such an order was sought by plaintiffs’ counsel they would seek as a term of such order that the Family Law Act claimants be discovered.
[19] In October 2014, plaintiffs’ counsel served the amended amended statement of claim described above which included all of the Family Law Act claimants as plaintiffs.
[20] Further examination for discovery was scheduled. In communications between counsel the counsel for the defendant Iberia Da Costa again confirmed their request to examine the Family Law Act claimants for discovery.
[21] Later in October 2014 plaintiffs’ counsel communicated that they had not had contact with the Family Law Act claimants for some time and did not have their instructions.
[22] In November 2014 plaintiffs’ counsel informed counsel for the defendant Iberia Da Costa that a meeting had been scheduled with Michael Ellis’ sisters and instructions would be obtained in the next week.
[23] In December 2014 counsel for the defendant Iberia Da Costa followed up with plaintiffs’ counsel. In December 2014 plaintiffs’ counsel advised that they had instructions to discontinue the Family Law Act claims of Jessica Ellis and Rebekah Ellis Atwell and they expected to receive similar instructions from Lynn and Larry Ellis. As a result they did not see why an examination for discovery of those plaintiffs would be necessary.
[24] On April 27, 2015 counsel for the plaintiffs corresponded with counsel for the defendant Iberia Da Costa and indicated that they had been unable to communicate with either Lynn Ellis or Larry Ellis. They stated they would be bringing a motion to dismiss the Family Law Act claims of Rebekah Ellis Atwell and Jessica Ellis and to get off the record for Lynn and Larry Ellis.
[25] That motion was not brought until January 2016.
[26] The affidavit filed in response to this motion on behalf of the defendant Iberia Da Costa referenced in some detail various events that had occurred in the life of the plaintiff Michael Ellis since the date of the accident. He has faced a number of difficulties and challenges with respect to his family life, his intellectual abilities as well as the injuries sustained in the accident. In particular it was noted that at the time of the second examination for discovery on November 30, 2010, plaintiffs’ counsel stated that there were some concerns with the answers given by Michael Ellis and there had been reference in medical records that “he has struggled at times with giving accurate answers and not answers that he believes people want to hear”.
[27] Both defendants take the position that while they acknowledge that Michael Ellis suffered a brain injury in the accident, he had “very significant pre-existing difficulties that continued up to the time of the accident”. The position of the defendants, Iberia Da Costa adopted by Ford Credit Canada Limited, is as set forward in paras. 41 – 44 of the affidavit filed in response to this motion:
Given the Plaintiff’s difficulties answering questions honestly and his age at the time of the accident, the Defendants are limited in their ability to understand the scope of his pre-accident difficulties without the evidence of family members. While the Defendants have been able to obtain some documentation as outlined above, the pre-accident documentation is limited. I verily believe that an understanding of Mr. Ellis’ pre-accident condition and life before the accident is of vital importance in understanding, assessing and defending the Plaintiff’s claim.
I verily believe that the Defendant has no other way to obtain this relevant information from any other party that it is entitled to examine.
I verily believe that it would be unfair to require the Defendant to proceed to trial without having the opportunity to examine the Family Law Act claimants.
I verily believe that these examinations will not unduly delay the trial because a trial date has not yet been set. I verily believe that requiring these Examinations would not involve an unreasonable expense. The Defendant has been attempting to arrange examinations since May 2005. Further, I verily believe that there is no unfairness to the Family Law Act claimants requiring this Examination.
Disposition
[28] I appreciate that examination of non-parties is a relief granted sparingly, however there are a number of circumstances of this case which render it unique: i) Michael Ellis was only 13 years old at the time of the accident and he has sustained a brain injury; ii) as of October 2014 his general damage claim was significantly increased to the amount of $9 million; iii) since 2005 the defendants have indicated an intention and desire to examine the Family Law Act claimants for discovery; there has been no resistance to that proposition; and, indeed such examinations for discovery were scheduled but were not completed; iv) while there was an acknowledgement in August 2014 that the family law claims did not meet the statutory deductible, this motion was not brought until January 2016; v) the current litigation guardian for Michael Ellis became his litigation guardian in 2009, six and a half years after the accident occurred; vi) Unlike the circumstances before the court in Blenkhorn v. Mazzawi, 2010 ONSC 699, 88 C.P.C. (6th) 122, relevant information regarding the injured plaintiff’s condition cannot be obtained from him or his litigation guardian at the discovery scheduled for February 26, 2016. While plaintiff’s counsel made a submission to this effect, relying on the findings of the court in Blenkhorn, in my view these circumstances are distinct from those considered by the court in Blenkhorn, which I will now discuss in more detail.
[29] Unlike the circumstances in Blenkhorn, it cannot be said that the claims of these family law claimants were initiated out of an abundance of caution so as to avoid the expiry of the limitation period.
[30] Furthermore, it also cannot be concluded that there has been virtually no activity with respect to their claims throughout the litigation. As noted above, the defendants stated they intended to examine these plaintiffs for discovery since 2005.
[31] Most importantly, unlike the circumstances in Blenkhorn, the physical and mental condition of Michael Ellis prior to, and since the accident, relating to activities of daily living is not available from others considering Michael Ellis’ age and condition at the time of the accident; the fact that his parents have not played an ongoing role in his life since late 2002; and the fact that his litigation guardian was not part of his life prior to the accident.
[32] Taking into account the requirements of proportionality referenced in r. 1.04 and r. 29.2.03, unlike Blenkhorn, given the issues in this action and the amount at stake I cannot find that it is unreasonable or unjustified to allow the defendants to examine Michael Ellis’ biological sisters as a term of discontinuing their action against the defendants without costs. I cannot find that this discovery will add unnecessary time and expense to this proceeding given the significant delay that has already occurred which is in large part, it seems to me, the responsibility of the plaintiffs. In Blenkhorn the matter was set for trial within four months of the motion for the examination for discovery against the discontinued plaintiffs being heard. The fact that there was a significant risk of creating a delay in commencing the trial was significant to the court’s conclusions in Blenkhorn.
[33] For the forgoing reasons, an order will go granting leave to discontinue the Family Law Act claims of Rebekah Ellis Atwell and Jessica Ellis without costs on the condition that the defendants may examine them for discovery. I note that the agreed upon timetable contemplated that the examination for discovery of the litigation guardian and the Family Law Act claimants be completed by December 1, 2016.
[34] The second area of relief sought by the plaintiffs is an order that counsel be removed as solicitors of record for Lynn Ellis and Larry Ellis. In the affidavit filed in support of this motion, counsel deposed that they have had no contact with these parties since this action began and they have been unable to obtain instructions in order to advance this matter to trial. They note that Lynn and Larry Ellis divorced when Michael Ellis was very young and Michael Ellis only lived with his mother and step-father until November 2002. It is believed that Mr. Ellis resides in the United States at an unknown location. Correspondence was sent to him care of his daughter Rebekah Ellis Atwell but there has been no response to that correspondence. Letters sent to the last known address of Lynn Ellis have also been returned or not acknowledged.
[35] In these circumstances, I am prepared to grant plaintiffs’ counsel the order sought dispensing with service of this motion on Larry and Lynn Ellis and an order removing them as counsel of record.
Costs
[36] Counsel agreed that costs be fixed at $500 and that they be awarded to the successful party in any event of the cause.
[37] Accordingly, costs of $500 are awarded to the defendants in any event of the cause.
“Justice L. C. Leitch”
Justice L. C. Leitch
Released: March 7, 2016
CITATION: Ellis v. Da Costa, 2016 ONSC 1548
COURT FILE NO.: 46511/05
DATE: 20160307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Ellis, by his litigation guardian Kim-Ann Greidanus, Lynn Ellis, Larry Ellis, Rebekah Ellis Atwell and Jessica Ellis by her litigation guardian, Children’s Aid Society of London & Middlesex
Plaintiffs
– and –
Iberia Da Costa and Ford Credit Canada Limited
Defendants
REASONS FOR decision
LEITCH J.
Released: March 7, 2016