Court File and Parties

COURT FILE NO.: CV-13-045 DATE: 2016 0712 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert John Kuiack, Plaintiff (Respondent to Motion) AND: Panolam Industries Ltd, Defendant (Moving Party on Motion)

BEFORE: E.J. Koke

COUNSEL: David A. Morin, Counsel, for the Plaintiff/Respondent Bruce N. Baron, Counsel, for the Defendant/Moving Party

HEARD: June 7, 2016

Endorsement

Introduction

[1] This is a motion by the defendant, (“Panolam”) compelling the plaintiff (“Mr. Kuiack”) to produce a further and better affidavit of documents, and to produce relevant documents in his possession.

Overview

[2] In 1990 Mr. Kuiack began working for the defendant company. He received an hourly wage, paid vacation, and a group benefits plan which provided him with long term disability benefits in the event of illness or disability.

[3] In 2002, at age 43, his kidneys began to fail. In 2003 he had to stop work in order to undergo regular dialysis. He applied for and received short term disability benefits and later long term benefits. Thereafter, he remained on LTD benefits for many years.

[4] In October, 2007 one of Mr. Kuiack’s daughters donated a kidney to him. His recovery thereafter was slow but by January 31, 2012 Manulife deemed him capable of working and it terminated his LTD benefits.

[5] In May, 2012 Mr. Kuiack’s lawyer wrote to Panolam requesting the opportunity for his client to attempt to return to work, with accommodations.

[6] On May 29, 2012, Mr. Kuiack issued a Statement of Claim against Manulife (the “Manulife Action”) seeking a declaration that he was permanently disabled, unable to work, and seeking a continuation of disability benefits.

[7] Mr Kuiack was cross-examined in relation to this motion at which time he agreed that the Manulife claim did not “get anywhere close to finalizing pleadings, exchanging a complete affidavit of documents or to the discovery stage”. It settled in 2012 or “shortly thereafter” after he decided that his claim against Manulife “was not viable, “and thereafter he “focussed his efforts on the return to work and pursued a claim against Panolam instead”.

[8] Panolam Industries retained a lawyer who wrote Mr. Kuiack on July 9, 2012 stating that he had been disabled since 2003, that “his employment became frustrated and came to an end some years ago”, and that “it does not appear that he considers himself capable of filling any employment position at our client’s manufacturing facility”.

[9] According to Mr. Kuiack this was the first time he had been informed that he was no longer an employee of Panolam.

[10] Mr. Kuiack responded by issuing a statement of claim against Panolam on June 18, 2013 claiming that he had recovered from his disability and claiming damages for among other things:

a) Breach of contract of employment b) Breach of Human Rights Code; c) Wrongful Dismissal; d) Bad faith conduct;

[11] Panolam has defended the action, pleading among other things that Mr. Kuiack remains disabled, that prior to his disability benefits being terminated he had no intention of returning to work and that the contract of employment had been frustrated.

[12] Panolam submits that the allegations contained in Mr. Kuiack’s statement of claim against Manulife are inconsistent with his allegations against Panolam. It also submits that the medical evidence which was relied on by the parties in the Manulife action are relevant to the issues in this claim. Panolam brought this motion for an order for the production of relevant documents in the Manulife action, including the plaintiff’s disability file and settlement documentation on the basis that it requires these documents in order to defend the plaintiff’s claims in the action against it. The plaintiff objected to producing these documents.

Disclosure Requested

[13] In its initial Notice of Motion for the production of documents Panolam cast its net widely. To their mutual credit, counsel for the parties engaged in discussions after service of the Notice of Motion. After receiving some direction from the court Panolam has now filed an amended request in which it claims production only of the following documents:

a) All substantive communications between the plaintiff and Manulife between 2002 and 2013 (up to and including settlement of the Manulife action); b) Mr. Kuiack’s short and long term disability applications, and any ongoing applications between 2002 and 2013; c) Clinical notes and records of Dr. Popoulos and Dr. Smith, between 2002 and 2013; d) All attending physician statements filed in support of the plaintiff’s disability applications and continuing benefits (including those filed every three months ) between 2002 and 2012; e) Plaintiff’s Manulife file (action no: CV-12-052 commenced in Parry Sound); i. pleadings; ii. productions; iii. undertakings/refusal responses (if any), and; iv. full particulars of the settlement of action including: minutes (if any exist) and or terms of settlement by email, letter, offer , or otherwise; Release; copy of settlement payment(s), and all correspondence between the plaintiff or his counsel and Manulife related to settlement;

[14] The plaintiff has proposed that he produce the following additional documents to Panolam:

a) The settlement documents from the claim against Manulife, inclusive of all correspondence regarding the payment and apportionment of settlement funds; b) The Manulife disability claims file, inclusive of any periodic physician updates and all communication between Mr. Kuiack and Manulife, and any Manulife disability benefit applications for the period from January 1, 2002 to July 9, 2012; c) The pleadings, and undertakings/refusals/responses, in the claim against Manulife; and d) The clinical notes and records of the family physician(s), and the treating specialist (Dr. Popoulos), from January 1, 2002 to July 9, 2012.

Legal Principles Governing Disclosure

[15] Pursuant to Rules 30.02 and 30.03 of the Rules of Civil Procedure, parties are required to disclose and serve an affidavit of documents, all relevant documents in their possession.

[16] The test for relevance is set out at paragraph 25 in Sky Solar v. Economical Mutual Insurance Co., 2015 ONSC 4714 (Ontario Superior Court): “Relevance is determined by reference to the pleadings. A document is “relevant” if it is logically connected to and tending to prove or disprove a matter in issue ”.

Analysis

1. Request by Panolam for disclosure of all substantive communications between Mr. Kuiack and Manulife between 2002 and 2013 (up to and including settlement of the Manulife action);

[17] In response to this request the plaintiff has agreed to provide the Manulife disability claims file, inclusive of any periodic physician updates and all communication between Mr. Kuiack and Manulife, and any Manulife disability benefit applications for the period from January 1, 2002 to July 9, 2012 i.e. the date he commenced action against Panolam.

[18] The plaintiff has agreed to provide the settlement documents from the claim against Manulife, inclusive of all correspondence regarding the payment and apportionment of settlement funds; It has not agreed to provide copies of correspondence unrelated to the settlement, payment and apportionment of settlement funds.

[19] One of the public interest exceptions to settlement privilege referred to in the Supreme Court of Canada decision in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, 2013 CarswellNS 429, [2013] 2 S.C.R. 623 is based on the desirability of preventing double recovery of damages by a plaintiff (see the reference to Dos Santos v. Sun Life, 2005 BCCA 4 at par. 19 of the decision). The production of the settlement documents referred to by the plaintiff honours this exception and also preserves settlement privilege communications which are not relevant to proving or disproving matters which may be in issue.

[20] In my view the plaintiff’s response is a sufficient and acceptable response to Panolam’s request.

2. Request by Panolam for disclosure of Mr. Kuiack’s short and long term disability applications, and any ongoing applications between 2002 and 2013;

[21] This request is met by the plaintiff’s agreement to provide the Manulife disability file.

3. Request by Panolam for the clinical notes and records of Dr. Popoulos and Dr. Smith, between 2002 and 2013;

[22] The plaintiff has agreed to provide the clinical notes and records of the family physician(s), and the treating specialist (Dr. Popoulos), from January 1, 2002 to July 9, 2012.

[23] Quite clearly, the status of Mr. Kuiack’s health is an issue in all of the claims. As such, these clinical notes and records are relevant and should be produced to the end of 2013 as requested by Panolam.

4. Request by Panolam for all attending physician statements filed in support of the plaintiff’s disability applications and continuing benefits (including those filed every three months ) between 2002 and 2012;

[24] This request is met by the plaintiff’s agreement to provide the Manulife disability file.

5. Plaintiff’s request for production of the plaintiff’s Manulife file (action no: CV-12-052 commenced in Parry Sound);

i. pleadings; ii. productions; iii. undertaking/refusal responses (if any), and; iv. full particulars of the settlement of action number CV-12-052 commenced in the Superior Court of Parry Sound including: Minutes (if any exist) and or terms of settlement by email, letter, offer , or otherwise; Release; copy of settlement payment(s), and all correspondence between the plaintiff or his counsel and Manulife related to settlement;

[25] Mr. Kuiack has agreed to produce the pleadings, and undertakings/refusals/responses, in his claim against Manulife. Although some or all of the productions in the actions may be relevant I am not prepared to order that the plaintiff provide copies of all productions without knowing the content thereof. The productions should be identified by the plaintiff with sufficient particularity so that Panolam can consider whether they meet the test of relevance. Thereafter, if the parties cannot agree on whether any such productions should be produced they can re-attend before the court to decide this issue.

[26] With respect to paragraph iv. of this request please refer to paragraphs 18 through 20 above.

Decision

[27] For the above reasons, I am ordering that

1. the plaintiff is to provide and deliver a better affidavit of documents, producing: a) The Manulife disability claims file, inclusive of any periodic physician updates and all communication between Mr. Kuiack and Manulife, and any Manulife disability benefit applications for the period from January 1, 2002 to July 9, 2012; b) The settlement documents from the claim against Manulife, inclusive of all correspondence regarding the payment and apportionment of settlement funds; c) The pleading, and undertakings/refusals/responses, in the claim against Manulife; and a list of productions which is sufficiently descriptive to enable Panolam to determine their possible relevance; d) The clinical notes and records of the family physician(s), and the treating specialist (Dr. Popoulos), from January 1, 2002 to the end of 2013.

2. The plaintiff must comply with the above prior to the commencement of the examinations for discovery;

3. The examination for discovery of the plaintiff and the defendant shall take place on consecutive days in Huntsville, Ontario, prior to December 31, 2016;

4. The plaintiff’s Notice of Examination returnable September 14, 2015, though previously withdrawn by the plaintiff, is formally quashed;

[28] If the parties cannot agree on costs they have 15 days from the release of this decision to submit written reasons as to costs, and 10 days thereafter to respond to each other’s submissions. Submissions are to be no more than 3 pages in length, exclusive of schedules and attachment.

Justice E.J. Koke SCJ Date: July 12, 2016