Lemesani v. Lowerys Inc.
Ontario Reports Ontario Superior Court of Justice, Platana J. June 30, 2016 132 O.R. (3d) 711 | 2016 ONSC 4367
Case Summary
Civil procedure — Discovery — Whether plaintiff would produce financial records for his business taken under advisement at plaintiff's examination for discovery — Plaintiff's counsel subsequently informing defendant's counsel that production of Canada Revenue Agency notices of assessment for relevant years was sufficient and that business records were not relevant — Defendant's counsel not responding to that position or to several attempts by plaintiff's counsel to set date for continuation of medical examination of plaintiff — Defendant bringing refusals motion more than one year later and three and a half months before trial — Motion dismissed because of defendant's delay and potential for delay of trial. [page712]
On the plaintiff's examination for discovery in January 2015, whether the plaintiff would produce financial records for his business was taken under advisement. In April 2015, counsel for the plaintiff informed counsel for the defendant that production of the plaintiff's Canada Revenue Agency notices of assessment for the relevant years was sufficient and that the business records were not relevant. The defendant did not respond, and also failed to respond to attempts by counsel for the plaintiff to set a date for the continuation of a medical examination of the plaintiff. The trial was set for October 2016. Three and a half months before the trial date, the defendant brought a motion for an order that the plaintiff answer the undertakings given in his examination for discovery.
Held, the motion should be dismissed.
It was completely inappropriate for the defendant to bring this motion after failing to respond to the letters of counsel for the plaintiff. There was a significant possibility that granting the motion would delay the trial. The defendant had had ample and fair opportunity to further discover the plaintiff, and was not estopped from full cross-examination on financial records that were produced at trial.
Cited Authorities
Cases Referred To
- Eisen (In Trust) v. Altus Group Ltd., [2016] O.J. No. 969, 2016 ONSC 1301 (S.C.J.)
- Fraser v. Georgetown Terminal Warehouses Ltd., [2005] O.J. No. 573, 137 A.C.W.S. (3d) 262, 2005 CarswellOnt 2878 (S.C.J.)
- Ontario v. Rothmans Inc., [2011] O.J. No. 1896, 2011 ONSC 2504, 5 C.P.C. (7th) 112, 201 A.C.W.S. (3d) 341 (S.C.J.)
- Senechal v. Muskoka (Municipality), [2005] O.J. No. 1406, 2005 CarswellOnt 1414, 138 A.C.W.S. (3d) 639 (S.C.J.)
- Graydon v. Graydon (1921), 67 D.L.R. 116 (Ont. S.C.)
Rules and Regulations Referred To
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1.1), 29.2.03, (c), (d), 31.05(1), 34.12(3), 34.15(1)(a), 48.04
- Evidence Act, R.S.O. 1990, c. E.23
Procedural History and Counsel
MOTION by the defendant for an order that the plaintiff answer the undertakings given on examination for discovery.
Counsel: Jordan Lester, for plaintiff (responding party). Dan Matson, for defendant (moving party).
Endorsement
[1] PLATANA J. : — The defendant brings this motion seeking an order that the plaintiff answer undertakings given in an examination held on January 26, 2015, and further that the plaintiff re-attend at his own expense to answer any proper questions arising out of his answer to undertakings, the questions which he improperly refused and continuation of the examination.
Background
[2] The plaintiff agrees substantially with the facts relied on by the defendant. [page713]
[3] On July 30, 2014, the plaintiff provided a sworn affidavit of documents. On September 30, the defendant requested further medical information, which was provided on November 6, 2014.
[4] The parties originally agreed to examinations of December 2, 2014, for [the] plaintiff, and December 3, for examination of the defendant. Those dates were cancelled by defendant's counsel on December 2 because of an injury. New dates were selected for January.
[5] On January 26, 2015, shortly before the examination commenced, the plaintiff delivered medical information in support of the plaintiff's claim. The examination commenced, but was adjourned subject to undertakings and an opportunity for a review of the medical information.
[6] On April 8, 2015, the plaintiff served answers to the undertakings, and requested arrangements be made for further examinations to take place. The plaintiff noted:
During the examination, it was taken under advisement whether my client should provide the financial records of his popcorn business for the 2011 to 2014 fiscal years. After considering the request, my client remains unconvinced that this information is relevant. Your client has already been provided with my client's Notice of Assessment from the Canada Revenue Agency for the years of 2010 to 2013. This should suffice in giving your client a clear picture of my client's income during the requested time. As well, my client undertakes to provide his Notice of Assessment for 2014 when it becomes available.
Also attached to this letter is a note from Dr. Mulligan dated September 20, 2011, stating that Mr. Lemesani will be unable to work due to health issues for the next two months.
You stated that you wished to further examine my client on his medical information once it has been updated. Based on the above, please, have your assistant call Ms. Heather Boyle at our office to arrange a date for the examination to be continued.
Defendant counsel did not reply.
[7] On May 4, 2015, the plaintiff's counsel sent a letter requesting contact to arrange for further examinations. There was no response from defendant's counsel.
[8] On July 8, 2015, after two previous requests attempting dates for the examination to be continued, the plaintiff's counsel sent an e-mail indicating that if there was no response, he would consider the request to continue the examination to be abandoned. The response was "will review and get back to you".
[9] On April 6, 2016, approximately three weeks prior to the scheduled pre-trial, defendant's counsel sent an e-mail requesting availability "to complete the exam of the plaintiff". Later that same day, the plaintiff was served with a notice of examination. [page714]
[10] The plaintiff did not attend at the examination on April 20, 2016.
[11] On April 28, 2016, in response to a request from defendant's counsel, the plaintiff provided answers to outstanding undertakings, with the exception of a request to produce financial records for the plaintiff's popcorn business, a question which had been taken under advisement.
[12] A pre-trial was held April 29, 2016. The matter is on a trial list scheduled for October 17, 2016.
[13] The defendant raises two issues: the failure to provide the undertaking with respect to the financial records of the popcorn business and the failure to attend to continue the examination. The undertaking given in issue is:
(1) To produce financial records for the popcorn business for the years 2011 to 2014 (under advisement)
Defendant's position
[14] During the course of the examination of the plaintiff, it was taken under advisement whether the plaintiff should provide the financial records of his popcorn business for the years 2011 to 2014. The plaintiff did produce the notices of assessment for those years. The defendant argues that the full records are relevant to the issue of mitigation, in that the full records will show whether there are other elements, for example, retained earnings which would affect the plaintiff's claimed income as shown on his T's.
[15] Second, Mr. Matson argues that the full financial records will verify what the business income was during the time period the plaintiff says that he could not work. They will show whether there were employees who were working when the plaintiff says he could not, therefore having business income.
[16] With respect to the issue of re-attending for the examination, Mr. Matson relies upon rule 31.05(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to note that approximately 4[cents] hours of a maximum of seven hours has been used; rule 34.12(3) for a ruling on the question objected to; and rule 34.15(1)(a) to require the question to be answered.
[17] He cites Senechal v. Muskoka (Municipality), where Master MacLeod states [at para. 5]:
The question of examining "more than once" is in practice a question of whether the examination was actually completed. Improper refusals are an interruption of the discovery while undertakings are an acknowledgment [page715] that the question is a proper one and a promise to obtain and provide the answer. Generally speaking, had the discovery not been interrupted by the refusal or the answer to the undertaking been available, not only would the answer have been given under oath as part of the transcript but the examining party would have been entitled to ask appropriate follow up questions as part of the examination. Arguably then an answer that genuinely gives rise to follow up questions should give rise to a right to complete the oral discovery as if the question has been answered.
[18] He argues that there is still time available for the completion of the exam before the trial date in October. He submits that there is no prejudice, and that any delay attributable to the defendant's counsel can be dealt with by costs and should not be considered in the merits of considering the re-attendance.
[19] He further submits that the re-attendance is relevant to further question the plaintiff on the medical reports so the plaintiff can be examined on what information he gave to the doctor who prepared the report.
[20] Mr. Matson cites paras. 17-18 in Eisen (In Trust) v. Altus Group Ltd., 2016 ONSC 1301 (S.C.J.), for the factors I must take into account:
Rule 29.2.03 of the Rules of Civil Procedure, which came into effect on January 1, 2010, is a further limitation on the scope of questions that may be asked on an Examination for Discovery. Rule 29.2.03(1) states:
In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source. [Emphasis added]
Accordingly, a person may refuse to answer a question on an Examination for Discovery if: (1) the question is not relevant to any matter in issue in the action; (2) the question is not proper; (3) the question does not satisfy the proportionality requirement imposed by Rule 29.2.03. [page716]
Responding party's position
[21] Mr. Lester acknowledges the facts relied on by the defendants. Further, he acknowledges that the law is not in dispute.
[22] The plaintiff now takes the position that it has been over one year since the plaintiff provided its undertakings and indicated that the financial records would not be produced, and over one year since the plaintiff first attempted to arrange for continuation of the examinations.
[23] His position is that this action was started in April 2014. Examinations were started, and adjourned. Several attempts were made to urge the defendant to continue the examination, and no response as to dates came from the defendant. He notes that undertakings were given and, subject to my ruling in this motion, have been complied with.
[24] He submits that this matter has now been pre-tried, a trial date of October has been fixed, and to grant this relief would put this matter back into the stage of discovery, and potentially further adjournments if issues arise out of refusals, or undertakings.
[25] He submits that there should be no issue as to further questioning of the plaintiff on any medical reports, specifically Dr. Johnston, as the plaintiff cannot provide any relevant information beyond what is in the report, which is produced pursuant to the Evidence Act. He argues that the medical report of the treating physician was produced in October 2015, and questions why this has only become an issue now.
[26] He submits that the role of the court is as gatekeeper, and he notes specifically rule 29.2.03, and particularly paras. (c) and (d):
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action[.]
[27] He notes the requirement of rule 29.02.03(d) for an orderly progress of this action. He argues that the plaintiff repeatedly requested the defendant arrange for dates to continue, with no response. Mr. Lester submits that the prejudice here is the potential delay if the examinations are permitted to continue. He submits that there is strong probability that there would be follow-up undertakings refusals, or other discovery issues which would delay the trial date. [page717]
[28] He cites Senechal, at para. 6, where the court states that "the right to a follow-up discovery is not . . . absolute", and that "[i]t may be sufficient for the court to find that the proposed discovery will be out of all proportion to the matters in issue". Mr. Lester submits that the defendant's conduct in seeking further examinations at this stage in this proceeding, considering their past history of delay, can be considered as vexatious and oppressive.
[29] He notes Senechal, where the court notes [at paras. 7 and 8]:
Even if answers do appear to require follow up, the court has discretion to order answers in writing or to decline to order further examination where it appears the cost or the onerous nature of what is proposed outweighs the possible benefits or where for any other reason it appears unjust to make such an order. Such discretion should be exercised only if the interests of justice require it.
The examples given above are not intended to be exhaustive. The point is that discovery rights are subject to court supervision and are not absolute rights. Discretion should normally be exercised to ensure the purposes of full and fair discovery are served but to prevent abuses of the discovery process. Procedural rules, it has been observed, should be the servants of justice and not its master. This principal is enunciated in Rule 1.04(1).
[30] Mr. Lester cites Eisen, at para. 16, where the court quoted Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 (S.C.J.), that
[t]he extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds: Graydon v. Graydon (1921), 67 D.L.R. 116 (Ont. S.C.).
[31] Mr. Lester notes that this action has been set down for trial, and a trial date is fixed. He references Fraser v. Georgetown Terminal Warehouses Ltd., [2005] O.J. No. 573, 2005 CarswellOnt 2878 (S.C.J.) in submitting that is now not appropriate to require the plaintiff to re-attend for examination.
[32] He argues that the plaintiff has provided full evidence of his income by producing his notices of assessment, and there was full opportunity for the defendants to challenge that on discovery. He notes that mitigation will be an issue, but submits that the plaintiff has provided sufficient information to establish that without production of the complete business records of the popcorn business.
Discussion
[33] In considering the question of relevance of the business records, I reference para. 13 in Eisen, and consider the principle that the purpose of discovery is to enable the examiner to know [page718] the case to be met; to obtain admissions; to define and narrow the issues. That is clear in this case.
[34] I find that it is completely inappropriate for the defendant, not having responded to several letters urging examinations to continue, to, at this date, seek the relief of this motion which could, and should, have been dealt with prior to a trial date being set. Having been the author of the delay, the defendant cannot now ask the court for relief in circumstances where, I am satisfied, there is a significant possibility to the plaintiff of a delay in the trial date by virtue of refusals. In short, the defendant has had ample, and fair, opportunity to further discover the plaintiff. Furthermore, the defendant is not estopped from full cross-examination on such records as are produced at trial. A similar comment applies to the ability to cross-examine the plaintiff on information provided to the doctor who prepared any reports to be submitted in accordance with the Evidence Act.
[35] I adopt the comments of Reilly J. in Fraser, where he stated [at para. 8]:
If they were troubled by refusals . . . they could have, and should have, brought a motion seeking appropriate relief long before this action was set down for trial . . . I see no unfairness in requiring the defendants to proceed to trial armed with the information and evidence they now possess.
[36] The matter is set down for trial. If the defendant had wished to pursue the issue of production of the business records, it has had since the plaintiff's letter of April 6, 2015, to bring a motion seeking the relief it now requests, 14 months after the refusal, and only 3[cents] months prior to trial.
[37] The right to discovery, or further discovery is not absolute: Eisen. Further, as in Eisen, the court has the discretion to make orders limiting discovery "where it appears the cost or the onerous nature of what is proposed outweighs the possible benefit or where for any other reason it appears unjust to make such an order". The cost of re-attending and the strong potential of further delay outweigh any possible benefit to the defendant, who maintains the right to canvass the issue of the plaintiff's efforts to mitigate at trial.
[38] I reference rule 1.04(1.1), which states:
Proportionality
1.04(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[39] "The right to discovery is not absolute neither is the right to a follow up discovery . . .": Senechal. Further, as noted in Senechal, at para. 7, discretion to decline to permit further [page719] examination "should be exercised only if the interests of justice require it". One of the factors is whether cost or nature of what is proposed outweighs the possible benefits, or where for any other reason it appears unjust to make an order for further examination.
[40] Although this is not a rule 48.04 situation requiring a change in circumstances, in view of the timing which I have referred to and the order which I am about to make, the potential prejudice to the plaintiff in delay to the trial date, and the cost to the plaintiff (and the defendant) of now having to re-attend, leads me to the conclusion that the defendant should not now be permitted to continue the examination.
[41] This motion is dismissed. If the parties are unable to agree upon the costs of this matter, the plaintiff shall file written submissions, not exceeding three pages, exclusive of a bill of costs, within 30 days. The defendant shall file its responding submissions, not exceeding three pages, exclusive of any bill of costs it may wish to file for comparative purposes, within 15 days of receipt of the plaintiff's submissions. Otherwise, costs shall be deemed to be settled.
Motion dismissed.