Saunders v. John Doe and City of Ottawa, 2016 ONSC 2060

Saunders v. John Doe and City of Ottawa, 2016 ONSC 2060

CITATION: Saunders v. John Doe and City of Ottawa, 2016 ONSC 2060

COURT FILE NO.: 15-63728

DATE: 2016/03/23

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Mark Stephen Saunders

Plaintiff

AND

John Doe, [OC Transpo Bus Driver]

and The City of Ottawa

Defendants

BEFORE: Madam Justice S. Corthorn

COUNSEL: Michael Rappaport, for the plaintiff

Iain Aspenlieder, for the defendant City of Ottawa

HEARD: March 10, 2016

ENDORSEMENT

1The plaintiff’s claim is for damages for injuries and losses suffered as a result of an accident, which is alleged to have occurred on September 5, 2014 when the plaintiff was travelling as a passenger on an OC Transpo bus. The plaintiff alleges that he suffered serious permanent injuries as a result of the bus coming to a stop suddenly and without warning - causing the plaintiff to fall and strike his face, elbow, and ribs on the steel railings which form part of the seats on the bus.

2The plaintiff’s motion is for relief with respect to:

a) The disbursements he anticipates incurring in collecting the Schedule “A” documents he requires to advance his claim; and

b) Documentary and oral discovery as they relate to the defendant The City of Ottawa (“the City”).

Background

3The plaintiff alleges that as a result of the accident described above, he suffered injuries to his face in the form of a cut lip, the loss of eight teeth (the teeth were either knocked out or removed by the plaintiff’s dentist), a bruised left elbow, and bruising to the left side of his rib cage. The plaintiff further alleges that he suffers from chronic pain syndrome, and has difficulty relaxing, sleeping, and eating.

4In his affidavit filed in support of the motion (“the Saunders affidavit”), the plaintiff sets out his financial circumstances. The plaintiff’s evidence is uncontradicted and he was not cross-examined on his affidavit. In summary, I find that the plaintiff’s financial circumstances are as follows:

• While in Florida in 2010 the plaintiff suffered a heart attack and incurred medical bills totalling $1,900,000. The insurance which he had at the time covered only $30,000 of the bills.
• The plaintiff suffered a second heart attack in 2011, within months of which he filed for personal bankruptcy. He was discharged from bankruptcy in July 2013.
• In 2014, the year in which the accident on the bus is alleged to have occurred, the plaintiff’s income totaled $16,446 and was exclusively in the form of benefits from the Ontario Disability Support Program (“ODSP”).
• The estimate which the plaintiff received from his dentist for the cost of implants required to address the loss of the eight teeth is $30,000. The plaintiff does not have any insurance or dental coverage available to him with which to pay for the treatment.
• As of the fall of 2015, the plaintiff continued to receive ODSP in the amount of approximately $1,400 per month, with the benefits intended to cover food, shelter, and transportation.

5The plaintiff’s evidence is that he is personally unable to pay the disbursements associated with the collection of documents required in support of his claim for damages. He identifies in particular the need for funds to pay for reports from each of a dentist and a dental surgeon.

6The Saunders affidavit includes evidence with respect to the plaintiff’s efforts to identify the name of the bus driver. The plaintiff says that he has a computer-generated, documentary record of the transaction for his fare with OC Transpo for the bus ride which is the subject of his action. The plaintiff’s evidence is that he provided the relevant information to OC Transpo and made follow-up inquiries, the latter to and including January 2015. Despite those efforts he was unable to determine the name of the bus driver.

7The Saunders affidavit also sets out the events in the litigation to date – in particular as related to the documentary and oral discovery of the City. The City relies on the evidence of Ms. Irvine-Ellis, a legal assistant with the City.

8Based on the record before me, I find the chronology of events in the litigation to date to be as follows:

Mar. 24/15 The statement of claim is issued.

Apr. 1/15 The statement of claim is served on the City.

Apr. 8/15 A notice of intent to defend is served on behalf of the City.

Jul. 16/15 A statement of defence on behalf of the City is served on counsel for the plaintiff (“Mr. Rappaport”).

Jul. 22/15 Mr. Rappaport provides counsel for the City (“Mr. Aspenlieder”) with a copy of a de-coded list of OHIP services for the plaintiff covering the period from March 2008 to January 2015. Mr. Rappaport requests that Mr. Aspenlieder:

a) Review the de-coded list of services;

b) Identify the records the City requires the plaintiff to request and produce; and

c) Confirm that the City will pay “the reasonable costs of production of medical records”.

In addition, Mr. Rappaport states that he anticipates that his client will be in a position to proceed with examinations for discovery in September or October 2015.

Jul. 27/15 Mr. Aspenlieder responds with respect to the de-coded list of OHIP services stating, “You can decide what documents you need to produce to prove your case and include them in your Affidavit of Documents.”

Jul. 27/15 Mr. Rappaport sends an e-mail to Mr. Aspenlieder in which he proposes dates in October for the examinations for discovery and addresses the cost of obtaining medical records. With respect to the latter subject, see discussion below under “Issue No. 1”.

Oct. 13/15 Mr. Aspenlieder sends Mr. Rappaport a draft, unsworn affidavit of documents in the name of a representative of the City. The draft affidavit of documents identifies no Schedule ‘A’ documents, includes only boilerplate language and makes no reference to specific documents in Schedule ‘B’, and identifies no Schedule ‘C’ documents.

Oct. 15/15 Mr. Aspenlieder sends Mr. Rappaport an e-mail message in which he requests that the plaintiff’s affidavit of documents be provided no later than the morning of October 16, failing which it will be necessary to re-schedule the examination for discovery of the plaintiff set to proceed on October 19. In a separate e-mail message Mr. Aspenlieder confirms that regardless he intends on producing a representative of the City for examination for discovery scheduled for October 19.

Oct. 15/15 Mr. Rappaport responds by e-mail advising Mr. Aspenlieder that he will provide the plaintiff’s affidavit of documents at the examination for discovery of the plaintiff scheduled to proceed on October 19. In a separate e-mail message Mr. Rappaport advises Mr. Aspenlieder that, “[t]he plaintiff only has a few documents at this stage” including the de-coded list of OHIP services and communication with OC Transpo.

Oct. 19/15 Mr. Rappaport sends an e-mail message to Mr. Aspenlieder at 7:30 a.m. to advise that he must, for health reasons, cancel the examination for discovery of a representative of the City scheduled for that date.

Oct. 23/15 An invoice from Cornell Catana for the cancellation of the examination for discovery of the defendant is sent to Mr. Rappaport.

Nov. 30/15 Mr. Aspenlieder writes to Mr. Rappaport and offers to provide a sworn affidavit of documents in the name of a representative of the City upon request for same.

9The notice of motion on behalf of the plaintiff was served in late November 2015.

The Issues

10The issues to be addressed on this motion are:

1. Is the plaintiff entitled to an order requiring the City to pay ‘interim costs’, in the form of disbursements, incurred by the plaintiff in fulfilment of his documentary discovery obligations?

2. Are deadlines to be set with respect to documentary and oral discovery, in particular as relates to the City?

Decision

11The plaintiff’s motion for an order requiring the City to pay the disbursements associated with the collection of Schedule ‘A’ documents is dismissed. Deadlines are set with respect to documentary and oral discovery process.

Issue No. 1 – Interim Costs

12The law with respect to an award of interim costs is set out in the decision of the Supreme Court of Canada in B.C. v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 36 [Okanagan Indian Band]. Three criteria must be met for an award of interim costs to be made:

1. The party seeking an award of interim costs must be impecunious to the extent that, without such an order, it would be deprived of the opportunity to proceed with the case;

2. The party must establish a prima facie case of sufficient merit to warrant pursuit; and

3. There must be special circumstances sufficient to satisfy the Court that the party’s case is within the narrow class of cases in which the extraordinary exercise of the Court’s discretionary powers with respect to costs is appropriate.

13Throughout the decision in Okanagan Indian Band, reference is made to the various types of cases in which an award of interim costs is appropriate. The types of cases identified include:

• Individual litigants seeking to enforce their constitutional rights;
• Family law matters in which one party is at a severe financial disadvantage to the point that he or she would otherwise be unable to proceed with their case; and
• Certain trust, bankruptcy and corporate cases – once again to avoid unfairness by enabling impecunious litigants to pursue meritorious claims with which they would otherwise not be able to proceed.

14Nowhere in the Okanagan Indian Band decision is there reference to personal injury litigation.

a) The Plaintiff’s Position

15The position taken on behalf of the plaintiff from the outset is as set out in Mr. Rappaport’s e-mail to Mr. Aspenlieder dated July 27, 2015. In that message, Mr. Rappaport states:

As you should be aware in personal injury files it is common practice for insurance defense lawyers to pay for the costs associated with the production of medical records and other disclosure. I can provide you with letters from insurance defense lawyers to confirm that this is the common practice …

I will be serving an affidavit of documents prior to examinations, but given my client’s extensive OHIP decoded summary will not be serving his doctor [sic] notes until specific requests are made.

b) The City’s Position

16The City relies on the decision of the Supreme Court of Canada in Okanagan Indian Band in support of its position that the circumstances in this matter do not support the exercise of the Court’s discretion to make an award of interim costs.

17The City also relies on the decision of Kane J. in Veillette v. Piazza Family Trust, 2012 ONSC 5414 at paras. 18 to 20. Justice Kane’s decision is with respect to a motion for relief related to productions and answers to undertakings in relation to an examination in aid of execution. He found that in the circumstances departure from the general rule that costs awarded in an action are paid at the end of litigation was not warranted.

c) Analysis

18The plaintiff relies on three decisions of this Court. None of the cases is on point.

19Williams v. Martinez, [2002] O.J. No. 493 (S.C.) is a decision on a motion following examinations for discovery. The decision addresses the condition on which a plaintiff was prepared to answer undertakings and refusals – namely that the defendant pay the costs associated with acquiring the relevant clinical notes and records. The relief granted on the motion required the plaintiff to obtain the relevant records and, upon production of the records to defendant’s counsel, the defendant to reimburse the plaintiff for the cost of obtaining the records.

20In reaching his decision, Master Kelly refused to articulate a universal rule with respect to which party is responsible to pay for the “up front” costs of acquisition or production of the clinical notes and records of the plaintiff’s treating physicians. At paragraph 7 of his decision Master Kelly said:

As the law now stands, each case must be decided on its own peculiar procedural facts. In this case I see no reason to stray from the more frequently endorsed practice in motor vehicle injury cases that, barring exceptional circumstances, the Defendant pays for the acquisition of clinical notes and records of the Plaintiff’s treating physicians that are requested by the Defendant. (Emphasis added.)

21It is clear from the manner in which the motion before me was argued that the plaintiff does not appreciate the distinction between his documentary discovery obligations and obligations which may arise on the basis of undertakings given, at the request of the defendant, to produce documents. It is the plaintiff’s obligation to secure, at his expense, the documents upon which he intends to rely in support of his claim, list those documents in his affidavit of documents, make those documents available for inspection by the defendant, and, if requested to do so, produce copies of the documents to the defendant (with the copies produced at the defendant’s expense).

22The plaintiff also relies on Kulpinski v. Toronto Transit Commission (2000), 45 C.P.C. (4th) 367 (Ont. S.C.) [Kulpinski]. The defendant in that action requested that the plaintiff attend two defence medical examinations. In relation to the defence medical examinations, the defendant requested that the plaintiff provide signed authorizations permitting the release to the defendant of the records of various physicians by whom the plaintiff had been seen. Master Polika ordered that the plaintiff make requests directly to the various physicians for their records on the basis that the defendant would pay the costs of the physicians for the reproduction of their respective records.

23Once again, the case is not on point. Mr. Kulpinski was self-represented at some of the initial stages of his action. It was not clear whether he had served an affidavit of documents. Prior to the examination for discovery of Mr. Kulpinski requests were made for production of medical records relevant to his claim for damages. Those requests appear to have gone unanswered. It appears that the examination for discovery of Mr. Kulpinski proceeded without the benefit of medical records in support of his claim. It was following the examination for discovery and in the context of arranging defence medical examinations that the defendant continued its pursuit of medical records.

24The facts in Kulpinski are distinguishable from those of the matter before me. However, Master Polika’s discussion of a plaintiff’s documentary discovery obligations is relevant to the determination of the matter before me:

The cumulative effect of [the authorities relied on by the defendant] is that in respect of documentary discovery in a personal injury claim a plaintiff is obliged, subject to any claims of privilege, not only to produce the medical documentation in his possession having a semblance of relevance to the physical condition put in issue in the action but also to authorize and request his doctors to produce his post-injury treatment notes and records. (See para. 34.)

25Master Polika also discussed the importance of defence medical examiners having access to the relevant treatment records. In that context the defendant was ordered to pay the costs associated with the reproduction of the records from the plaintiff’s physicians.

26The most recent of the three decisions relied on by the plaintiff is that of Master Sproat in Hollo v. Toronto Transit Commission, 2010 ONSC 1656 [Hollo]. The decision relates to personal injury litigation in which the parties: a) agreed that the documents of which the defendant sought production were relevant; and b) disagreed as to which of the parties, the plaintiff or the defendant, had the obligation to request the relevant documents. Of note, the defendant T.T.C. agreed to pay the costs associated with obtaining the documents. On that basis alone, the decision in Hollo is distinguishable from the matter before me.

27It was also relevant to the outcome of the motion in Hollo that the plaintiff had, as of the date of the motion, “expended virtually no effort to make meaningful documentary production”: see paragraph 14. I find that the same may be said of the plaintiff in the matter before me.

28In reviewing the documentary discovery obligations of a party, at paragraph 12 of the decision, Master Sproat said:

The submission that the TTC is better situated to expend the time, effort and cost to obtain the documents has no merit on a principled basis, or even a factual basis. The obligation to produce relevant documents cannot be shifted to an adverse party who may have the financial capability to obtain the documents, although I recognize that in many instances involving personal injury cases, defendants as a matter of practice agree to pay the nominal costs incurred for acquiring the documents, as did the TTC in this case. The TTC’s position is reasonable, in my view. To accept the plaintiff’s position in this regard would in effect overrule the general principle that each party has the obligation to fund its own case and, further, would result in floodgates litigation as plaintiffs would effectively be immune from the risks of litigation and the cost consequences of pursuing meritless litigation.

29Master Sproat also discussed the solicitor-client relationship in personal injury litigation and issues of access to justice at paragraph 13 of the decision:

Ultimately, however, it is my view that it is of no consequence whether plaintiff’s counsel is overburdened or too busy to make the necessary requests. Plaintiff’s counsel can determine in any given case whether he is prepared to act and, if counsel agrees to act, he or she has obligations to the client and to the court. If plaintiff’s counsel cannot dedicate sufficient time and resources to the conduct of the case, counsel should decline to act. The plaintiff cannot shift obligations of production based on how busy plaintiff’s counsel may be or based on how less busy an adverse party’s counsel may be.

30Although the discussion above is with respect to time and the availability of human “resources” to carry out the necessary work, I am of the view that the point made by Master Sproat is equally applicable to the dedication by plaintiff’s counsel of financial “resources”. This is particularly so in the case of personal injury litigation. In that regard, if plaintiff’s counsel is not in a position to dedicate sufficient time and financial resources to the conduct of the case, counsel should decline to act. In addition, the plaintiff cannot shift the financial obligations of documentary discovery based on the adverse party being in a better financial position than the plaintiff.

31The evidence of Mr. Saunders is that he is personally unable to pay the necessary disbursements to substantiate the quantum of damages including for reports of a dentist and of a dental surgeon. His financial position or impecuniosity is not on its own sufficient to warrant departure from the usual award of costs at the end of an action: see Okanagan Indian Band, at paras. 34 and 36.

32There is no evidence in the record before me as to the terms of the retainer between Mr. Saunders and his counsel. It is a matter between a plaintiff and his counsel to determine how disbursements incurred to obtain documents in support of the plaintiff’s claim (i.e. in fulfilment of the plaintiff’s documentary discovery obligations) are to be paid. Either the plaintiff is personally responsible to fund the disbursements or his or her counsel is prepared to ‘underwrite’, wholly or in part, the disbursements pending the outcome of the litigation.

33It is not, as suggested on the matter before me, “common practice for insurance defense lawyers to pay for the costs associated with the production of medical records and other disclosure.” A defendant may agree, for limited purposes as the litigation progresses, to pay the disbursements associated with the production of records for which the defendant has made a specific request, including: a) as part of the examination for discovery of the plaintiff (Williams); b) in preparation for defence medical examinations (Kulpinski); or c) if the defendant consents to same (Hollo).

34There is no evidence before me that:

• The plaintiff, when retaining counsel, took any steps to ensure that it was understood that his counsel would pay for disbursements pending the outcome of the action; or
• If Mr. Rappaport and his client are unable to reach an agreement as to how disbursements in the action will be funded the plaintiff will be deprived of access to justice.

35If Mr. Rappaport and his client are unable to reach an agreement with respect to the payment of disbursements, it remains open to the plaintiff to retain counsel who is prepared to represent him on the basis that counsel will ‘underwrite’ the disbursements pending the outcome of the matter. In the absence of evidence that there is no alternate representation available to the plaintiff and that Mr. Rappaport is prepared to act for the plaintiff only on the basis that the client pay disbursements as they are incurred, I am unable to conclude that the plaintiff has established that he will be denied access to justice if the City is not required to pay disbursements associated with his documentary discovery obligations in the action. In summary, the plaintiff has failed to satisfy the first of the three criteria set out in Okanagan Indian Band.

36The only evidence with respect to the merits of the claim is the plaintiff’s description of how the accident occurred and as to the nature of his injuries. That evidence is uncontradicted. The plaintiff has demonstrated that he has a prima facie case which merits pursuit. I find that the plaintiff has satisfied the second criterion set out in the Okanagan Indian Band decision.

37There is no evidence before me to support a finding that there are “special circumstances” to bring the plaintiff’s action within the narrow class of cases in which the extraordinary exercise of the Court’s discretionary powers with respect to costs is appropriate. I find that the third criterion set out in the Okanagan Indian Band decision has not been met.

d) Summary

38I agree with the position of the City and find that the plaintiff is not entitled to an order requiring the City to pay the costs associated with obtaining the documents required to satisfy the plaintiff’s documentary discovery obligations.

Issue No. 2 – Deadlines

39Based on the record before me, I find that neither of the plaintiff and the City has complied with their documentary discovery obligations in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Prior to the service of the plaintiff’s motion record, neither party had served a sworn affidavit of documents which complies with the Rules of Civil Procedure:

• A party to an action is required to serve a sworn affidavit of documents. That requirement does not arise from a request for same: see Mr. Aspenlieder’s Nov. 30/15 e-mail message to Mr. Rappaport. The requirement stems from R. 30.
• In addition, r. 30.03(2) sets out the requirements for the contents of an affidavit of documents. I find that the affidavit of documents prepared on behalf of the City, whether sworn or unsworn and in its current form, does not comply with the requirements of that rule.

40Based on the record before me there is no evidence that either party has, even as of this date, served a sworn affidavit of documents. I am concerned that if deadlines are not set for the completion of both documentary and oral discovery this action may not proceed in an efficient and cost-effective manner.

41It is clear that the plaintiff requires time to collect documents in support of his claim for damages. To set deadlines which do not allow for that step to be completed would, in my view, only serve to frustrate the progress of this action. It is reasonable to allow the plaintiff three months within which to collect the relevant documents. The completion of the documentary and oral discovery is premised on that initial timeline.

42The deadlines that the parties are required to meet are as follows:

Jun. 30/16 Each party shall serve a sworn affidavit of documents.

Jul. 30/16 Each party shall make available for inspection the documents listed in Schedule ‘A’ of their affidavit of documents.

Aug. 19/16 If production is required of any documents listed in Schedule ‘A’ of the opposing party’s affidavit of documents, a request for same shall be made in writing.

Sept. 5/16 The party requesting production of any documents shall reimburse the opposing party for costs incurred for reproduction.

Sept. 12/16 The documents requested shall be produced.

Oct. 7/16 Examinations for discovery of the parties shall be completed.

Costs

43There has been mixed success on this motion. The plaintiff’s request for relief with respect to interim costs is denied. However, the plaintiff’s request for relief with respect to the oral and documentary process as it relates to the City was successful. As a result, there shall be no costs of this motion.

Madam Justice S. Corthorn

Date: March 23, 2016

CITATION: Saunders v. John Doe and City of Ottawa, 2016 ONSC 2060

COURT FILE NO.: 15-63728

DATE: 2016/03/23

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Mark Stephen Saunders

Plaintiff

AND

John Doe [OC Transpo Bus Driver] and the City of Ottawa

Defendants