Denault v. Alplay et al., 2016 ONSC 1618
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eric Denault
Plaintiff
– and –
Osman Alplay and Nellie S. Alpay
Defendants
Stanley Razenberg, for the Plaintiff
Mehran Wancho, for the Defendants
HEARD: February 29, 2016
LEDERMAN J.
NATURE OF APPEAL
1This is an appeal from the Master denying the defendants’ motion for a further and better affidavit of documents pursuant to rule 30.06.
2This action arises from a motor vehicle accident that occurred on May 23, 2013, in which the plaintiff allegedly suffered permanent impairment of his left arm. The statement of defence alleges that the impairment was pre-existing. The plaintiff in fact incurred prior injuries: one in 2004, when the plaintiff was caught in a house fire, in a coma for 40 days, suffered severe burns to his left arm and required complete skin grafts to his body including the left arm; and another injury in 2006, involving a break to the same bones he claims were broken in the accident in question in this action.
3The plaintiff’s affidavit of documents did not list any documentation with respect to the two prior injuries to his left arm.
4At his examination for discovery, the plaintiff was asked about the prior injuries and he responded that his arm was back to normal before the subject accident.
5The defendant brought a motion to compel production of a further and better affidavit of documents to include the clinical notes and records pertaining to the plaintiff’s previous injuries in 2004 and 2006.
6The Master dismissed the motion giving the following reasons:
The onus is on the moving party to demonstrate that the further documents sought are relevant to the plaintiff’s claim in this action (see rule 30.06). With respect to the plaintiff’s condition in the years leading up to May 23, 2013 accident, the plaintiff has produced a “list of medical services provided in Quebec back from May 1, 2008 to September 12, 2013” but there is no evidence that any of those records reflect any problems arising from the previous injuries in 2004 and 2006. The plaintiff’s discovery evidence (Q. 126) was that he never saw a doctor in Ontario before the 2013 accident. His evidence with respect to the earlier elbow injury was that following that injury “it came back to normal everything was normal (Q 91).
The two previous incidents in 2004 and 2006 were, respectively, nine and seven years before the 2013 accident. There being no evidence provided of any ongoing health/medical problems experienced by the plaintiff arising from the previous incidents in the years before May 23, 2013, the moving parties have not met their onus and the motion is dismissed.
STANDARD OF REVIEW
7A Master’s decision will be interfered with on appeal if (a) the Master made an error of law or (b) exercised his or her discretion on wrong principles or (c) misapprehended the evidence such that there is a palpable and overriding error. Where it is alleged that the Master has erred in law, the proper standard of review is correctness.
AFFIDAVIT OF DOCUMENTS
8Rule 30.02(1) requires that “every document relevant to any matter in issue in an action … shall be disclosed” in an affidavit of documents.
9Rule 30.07(b) provides that there is an ongoing obligation on a party to deliver a supplementary affidavit of documents if, among other things, he or she discovers that the affidavit is in inaccurate or incomplete and to list any additional documents.
10The Court has the power under rule 30.06(b) to order service of a further and better affidavit of documents in circumstances where a relevant document in a party’s possession control or power may have been omitted from the party’s affidavit of documents.
RELEVANCE
11Relevance begins with the pleadings. The statement of claim alleges that the plaintiff was riding his bicycle along a line of parked cars. The defendant was in one of those cars and, it is alleged, the defendant started to open his door, causing the plaintiff to fall and seriously injure his left arm. The statement of claim further alleges that the plaintiff has suffered permanent impairment of his left arm arising from this accident. The statement of defence, on the other hand, denies liability and alleges that impairment to the plaintiff’s left arm was caused by prior occurrences.
12Counsel for the plaintiff agreed that relevance is dictated by the pleadings but that it is only part of the equation. He submitted that the principle of proportionality should be taken into account in applying the rules. Here, the two prior injuries occurred nine years and seven years before the motor vehicle accident in issue. On discovery, defendants’ counsel only briefly examined the plaintiff on these issues and sought no undertakings with respect to these two prior incidents. Further, defendants’ counsel only requested medical information in respect of claims for injuries for only three years prior to the occurrence of the accident and that information was in fact provided. The plaintiff’s position is that in considering the issue of relevance, the Master implicitly based his finding on the principle of proportionality in that defendants’ counsel did not pursue the matter in discovery (being content to receive records going back only three years) and that the plaintiff stated on discovery that he had no residual problems from the incidents that occurred in 2004 and 2006.
13The test of relevance is not a matter for the exercise of discretion. What documents parties are entitled to is a matter of law, not discretion: Apotex Inc. v. Richter etc. 2010 ONSC 4070, [2010] O.J. No. 2718 (SCJ) a para. 117.
ANALYSIS
14The Master erred in law by not considering the pleadings as framing the issue of relevance. Based on the pleadings, medical documentation regarding the prior injuries to the very same arm is relevant and should be disclosed in the plaintiff’s affidavit of documents, notwithstanding such prior injuries occurred nine and seven years earlier.
15Instead, the Master made findings of fact as to whether the plaintiff continued to suffer from these prior injuries. He found that “there is no evidence that any of those records reflect any problems arising from the previous injuries in 2004 and 2006”. And stated “there being no evidence, provided of any ongoing health/medical problems experienced by the plaintiff arising from the previous incidents in the years before May 23, 2013, the moving parties have not met their onus and the motion is dismissed”.
16In making his determination of “relevance”, the Master engaged in the weighing of the available evidence in order to determine whether the records sought were relevant. Relevance is determined by the pleadings and not by examining the state of the existing evidence and the Master fell into error of law by so doing. Relevance, for the purposes of proving a fact at trial, is established where the evidence tends to prove or disprove a disputed fact. In this case, the disputed fact, framed by the pleadings, is whether plaintiff’s current symptoms were caused by the prior injuries or whether they are to be wholly attributed to the subject accident.
17It was an error of law for the Master to focus on whether the defendants have been unable to produce convincing evidence of the nature and extent of the plaintiff’s prior left arm injury. Weighing the evidence and fact finding are the responsibility of the trier of fact and not a proper consideration for the determination of relevance for the purposes of what should be contained in an affidavit of documents. In fact, the very evidence the defence would need to prove the extent of the prior injuries, is the very evidence being sought on this motion.
18Further, in this case, even if weighing of evidence was permitted, the Master misapprehended the evidence before him. The Master relied upon what he described as “a list of medical services provided in Quebec from May 1, 2008 to September 12, 2013” and that those records do not reflect any problems arising from the previous injuries in 2004 and 2006. In fact, the evidence before him was not a list of medical services provided in Quebec, but just a list of medical providers. The list does not set out the medical treatment or services provided to the plaintiff. Accordingly, the Master’s conclusion that such records do not reflect any problems arising from the previous injuries in 2004 and 2006, is a misapprehension of the evidence tantamount to an overriding and palpable error.
19Moreover, the Master failed to consider all of the evidence on this issue. There are references in the post-accident hospital documents which indicate that there may be unresolved problems stemming from the prior injuries. For example, in the Operative Note, in the St. Michael’s Hospital Operative Summary dated May 28, 2013, it is stated in part:
He had a previous injury to his elbow, as well as a burn to much of his upper body. He states that his elbow function prior to the injury was reasonably normal. Subsequent to his injury, he noted some degree of weakness in the hand function. (emphasis added)
20That same note goes on to state that “there was quite significant scar tissue distally which may have been from his previous injury”.
21Thus, even if an evidence weighing exercise was permissible, it is apparent that the Master did not take into account all of the evidence that was before him.
22The Master did not expressly state anything about the principle of proportionality. Even if that was considered implicitly, as counsel for the plaintiff submits, rule 1.04(1.1) indicates that proportionality also includes a consideration of the amount involved in the proceeding. The statement of claim seeks damages in the total amount of $1,325,000, a significant sum, and accordingly, the defendants’ request for information concerning the prior injuries in question, is not out of proportion to their monetary exposure in the action.
23The fact that counsel for the defendant did not seek undertakings on the examination for discovery of the plaintiff, does not relieve the plaintiff from the ongoing obligation to provide a complete affidavit of documents as required by rule 30.07.
24In summary, the prior injuries in question are to the exact same body parts (the left elbow and arm) which are allegedly impaired from the subject accident. The relevance of the prior medical records has been clearly established and a further better affidavit of documents should be delivered by the plaintiff to include the clinical notes and records that relate to his prior injuries in 2004 and 2006 respectively.
CONCLUSION
25The appeal is therefore allowed. Costs of the appeal and the motion are fixed at a total of $5,000 inclusive of fees, disbursements and applicable taxes, payable by the plaintiff to the defendants within 30 days.
Lederman J.
Released: March 14, 2016
CITATION: Denault v. Alplay et al., 2016 ONSC 1618
COURT FILE NO.: CV-14-517950
DATE: 20160314
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eric Denault
Plaintiff
– and –
Osman Alplay and Nellie S. Alpay
Defendants
REASONS FOR JUDGMENT
Lederman J.
Released: March 14, 2016