COURT FILE NO.: CV-08-4465-00 DATE: 2016 04 29
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Dinesh Kaushal v. Michael J.J. Graziano, Advantage Car & Truck Rentals Ltd., Teodoro Loquercio, Clark Leasing, Joseph Sullivan, Grant E. Sullivan, Marvin D. Yuchtman, Pine View Pontiac Buick Sales Ltd. and Economical Mutual Insurance Company
BEFORE: Fragomeni, J.
COUNSEL: E. Khoshbin, for the Plaintiff R. J. Coughlin, for Defendants M. D. Yuchtman and Pine View Pontiac Buick Sales Ltd.
HEARD: April 28, 2016
E N D O R S E M E N T
[1] The Defendants seek the following relief:
- For further discovery/production of material and relevant documents in the form of a further and better Affidavit of Documents;
- To compel the Plaintiff to attend further Examination for Discovery; and
- Adjourning the trial if necessary.
[2] Order to issue as follows:
- Leave is granted to bring this Motion;
- (a) that the Plaintiff shall attend a further Examination for Discovery on or before May 5, 2016; (b) the length of the Discovery shall not exceed three hours; and (c) the Discovery shall relate to the list of questions about the Plaintiff’s wife as set out in Mr. Ryan Coughlin’s letter dated March 24, 2016 to Mr. Michael Henry.
- The Defendants request that a further Affidavit of Documents be prepared is dismissed;
- The trial of this matter scheduled for the blitz sittings commencing May 9, 2016 is not adjourned and will proceed as scheduled;
- This order is without prejudice to the Defendants renewing their motion before the trial judge if following the Discovery of the Plaintiff it is necessary to seek further relief. Those issues will be dealt with by the trial judge.
- My preliminary view is that costs of the motion ought to be reserved to the trial judge, however, if the parties wish to make submissions on costs of the motion they shall do so in writing within 20 days.
Reasons for the Order
[3] I am satisfied that the substantial change in circumstances relating to the new family dynamics is sufficient to meet the threshold of granting leave. To deny leave would, in my view, be “manifestly unjust”.
[4] At paragraph 31 of their Factum the Defendants set out the following:
- The Plaintiff’s Affidavit of Documents is thereby considered incomplete as it does not include information and documentation that has subsequently come within the knowledge, control and/or possession of the Plaintiff. To satisfy his disclosure obligations, the Plaintiff should provide further documentation to these Defendants in a further and better affidavit of documents.
[5] In his letter dated March 24, 2016 Mr. Coughlin wrote to Mr. Henry as follows:
“We are writing further to the letter from your law clerk, dated March 22, 2016, suggesting that you will not produce the plaintiff for further discovery, but will consider answering questions in writing.
Our list of questions is enclosed. Please note that these questions are being asked without prejudice to our rights to bring a motion to compel further discovery. Discovery of your client was concluded subject to questions arising as a result of undertakings. Many undertakings have been answered since then and it is our position that we are entitled to complete our discovery of your client.
1 . What is her name? 2 . What is her date of birth? 3 . Where does she live? 4 . What is her immigration status? 5 . Is she entitled to work? 6 . Please produce the immigration records that are within the possession of your client and his wife. 7 . Please request and produce the immigration file for the wife. 8 . What does the wife do all day? 9 . Does she have any obligations to anyone other than the plaintiff? 10 . Does she look after other relatives? 11 . Does she have a job? 12 . Does she volunteer? 13 . Please describe her typical day. 14 . Do the plaintiff and his wife have a child? If so, what is the date of birth and the current arrangement for the care of the child? 15 . Request and produce any Children’s Aid Society file and/or documents related to that agency’s involvement in the child. 16 . Does she receive any payment from anyone for any care services provided to her husband? 17 . Does she have any physical, cognitive or other limitations? Does she speak English? Is she healthy? Does she require any medical attention or care from anyone? What languages does she speak? 18 . How is she supported? 19 . What are her intentions for the future with respect to residency, employment and the family? 20 . Does she have any family in Ontario?”
[6] In his oral argument before me Mr. Coughlin identified the main concern for the Defendants related to the Cost of Care within the context of the Plaintiff’s new family arrangement in that he was now married and has a child. (See Tab B of the Motion Record).
[7] Tab C of the Motion Record, is a one page excerpt from the February 18, 2015, Future Care Cost Assessment served on the Defendants March 7, 2016, which sets out the following, in part:
Mr. Kaushal is currently living with his wife, his parents and two of his brothers in a 2-storey house in Maple, Ontario. He reported he got married in 2013 but his wife has only just arrived in Canada. He noted his marriage was a traditional one. Mr. Kaushal’s mother reported the family arranged the marriage as Mr. Kaushal requires 24-hours of safety supervision with his medications and controlling his symptoms. His parents were also aging and it was becoming harder to take care of Mr. Kaushal. The mother reported that Mr. Kaushal’s condition was fully disclosed to his wife prior to the marriage and the wife accepted to come to Canada and provide part of the care to Mr. Kaushal.
Mr. Kaushal stated his wife has recently came to Canada as the immigration process was completed and she is taking part in providing assistance with some of the his required care.
[8] I am satisfied that it is in the interests of justice that the Defendants be permitted to examine the Plaintiff on those areas identified in his list of questions. The questions are relevant to the issues relating to the care of the Plaintiff.
[9] I am also satisfied that the list of questions set out by Mr. Coughlin will form the framework of the further Discovery of the Plaintiff. I am satisfied that the Defendants should be at liberty to address the trial judge should it be necessary to do so, on any issues that may arise from the further Discovery.
Fragomeni, J.